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13-P-1828                                                Appeals Court

                    COMMONWEALTH   vs.   LAURA BUTLER.


                             No. 13-P-1828.

         Suffolk.       November 10, 2014. - March 19, 2015.

            Present:   Kantrowitz, Graham, & Katzmann, JJ.1


Practice, Criminal, Dismissal, Discovery, Disclosure of
     evidence. Evidence, Certificate of drug analysis,
     Disclosure of evidence. Controlled Substances.



     Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on November 15, 2012.

     Entry of judgment dismissing the complaint was ordered by
Raymond G. Dougan, Jr., J.


     Ryan A. Pavao (Donna Jalbert Patalano, Assistant District
Attorney, with him) for the Commonwealth.
     Kathleen M. Kelly for the defendant.


     KATZMANN, J.      This case is before us on an appeal by the

Commonwealth from an order by a Boston Municipal Court judge sua

sponte dismissing the drug distribution complaint without


     1
       Justice Graham participated in the deliberation on this
case prior to his retirement.
                                                                      2


prejudice against the defendant, Laura Butler, on all counts and

over the objection of the Commonwealth where the Commonwealth

had not provided a certificate of drug analysis of the

defendant's prescription medication because no certificate had

yet been created.     We vacate the order of dismissal.

    Facts.   On November 14, 2012, in the course of a police

investigation of drug activity in the area of Haymarket and

Government Center in Boston, the defendant was arrested after

two police officers observed her providing nineteen prescription

pills in exchange for twenty dollars; a prescription bottle

obtained from the defendant's purse had the defendant's name on

it and contained nine white oval tablets with the letters "G 13"

imprinted on them.     On November 15, 2012, the Boston Municipal

Court issued a criminal complaint against the defendant alleging

two counts of distributing a class E controlled substance

(gabapentin), and two counts of distributing a controlled

substance near a school or park.    The matter was originally

scheduled for pretrial hearing on January 24, 2013, continued

for pretrial hearing to April 12, 2013, and continued a second

time for pretrial hearing to July 17, 2013.     The reasons for the

continuances do not appear on the record.

    The entirety of the July 17, 2013, pretrial hearing

progressed as follows:

    The clerk:      "Matter of Laura Butler."
                                                              3


The court:   "What are you requesting today, [defense
counsel]?"

Defense counsel: "Judge, I used the time to reach out to
the D.A.'s office and they indicated they're going to have
to speak to [one of the other prosecutors], but if you look
at the booking photo of [the defendant] and her appearance
today, she is in, you know, much better shape. She's been
involved in a program called the CSAC Community Substance
Abuse up in Chelsea, Mass. She's been volunteering at the
M.S. -- Prevention of Cruelty to Animals group. She's also
involved with a therapist and a hands-on physician that
she's been dealing with. She has, as you can see, not re-
offended. She only goes to the Haymarket area now in order
to -- if she needs a bus. But obviously right now this was
prescription drugs that she had at that time, and the
allegation is that she distributed them to an undercover
police officer. Given what she's doing now and everything
else, I've basically been trying to reach out to the D.A.'s
office to see what we can do about getting rid of the
school-zone charges, given that she, as I said, used the
last eight and a half months to address this problem."

The court:   "And --"

Defense counsel: "And I don't -- I haven't gotten the
certs [certificates of drug analysis] yet either, but I --
I mean, as they were prescription drugs, I'm not as
concerned."

The court: "Do you have any information about the
substances and the laboratory?"

The prosecutor: "Yes, Your Honor. I can advise the
court that as of today, the drugs have not yet been tested.
They are at the Sudbury lab awaiting testing."

The court: "[C]an you provide me with any more information
about the status of the substances at the lab?"

The prosecutor: "I'm afraid I cannot, Your Honor. I can
ascertain as to a timetable by which they'll be tested;
what I can inform the court is that given the offense date,
they would not have passed through the lab at Jamaica
Plain. That would have been closed by that time. So it's
the Commonwealth's belief that these drugs went directly to
Sudbury and are awaiting testing at this time."
                                                              4



The court:   "What are you requesting, [defense counsel]?"

Defense counsel: "Well, Judge, you know, if the school
zone charges were eradicated, in terms of a plea bargain,
I'd be happy to dispose of the case in, I think,
satisfactory terms for all parties, given the fact that
she's used these last eight and a half months, you know, in
a very progressive way in terms of her own personal
situation. So if they need the certs to weigh the pros and
cons of what I'm asking, then that's fine, but as I say,
I'm very impressed with what she's been doing."

The court:   "Well, they're not ready."

Defense counsel:   "I know."

The court: "Dismissed for failure to provide discovery,
without prejudice, over the objection of the Commonwealth."

The defendant:   "Thank you."

Defense counsel:   "Thank you, Your Honor."

The defendant:   "Thank you."

The court officer: "Ma'am, wait for the clerk to read
off the decision. Ma'am. Ma'am."

The clerk: "Laura Butler, as to Docket 12CR5579,
ma'am, this matter stands dismissed. That dismissal is
without prejudice. The dismissal is also over the
objection of the Commonwealth, and it's for lack of
discovery."

The defendant:   "Thank you, Your Honor."

The court:   "So, [defense counsel] --"

Defense counsel:   "Yes, Judge."

The court: "-- make sure that your client understands
that the Commonwealth can bring this case again and --"

Defense counsel:   "She knows that."
                                                                    5


    The court: "-- and she should make sure that the -- or
    that you or the Commonwealth has a mailing address where
    she gets mail in the event they decide to start this matter
    again."

    Defense counsel:       "Right."

    The defendant:    "I'm going to take the second chance.
    Thank you."

    The clerk:    "And as to the legal counsel fee, that'll be
    waived."

    Defense counsel:       "Thank you so much."

    The clerk:    "Okay?    Good luck, ma'am."

    Discussion.    In the proper exercise of discretion, a judge

may order discovery of information necessary to the defense of a

criminal case.   A certificate of chemical analysis falls within

the ambit of the Commonwealth's rule 14 discovery obligations.

See Mass.R.Crim.P. 14(a)(1)(A)(vii), as amended, 444 Mass. 1501

(2005).   Upon failure of the Commonwealth to comply with a

lawful discovery order, a judge "may impose appropriate

sanctions, which may include dismissal of the criminal charge."

Commonwealth v. Douzanis, 384 Mass. 434, 436 (1981), citing

Mass.R.Crim.P. 14(c)(1), 378 Mass. 880 (1979).    "Dismissal of a

criminal complaint is the most severe sanction that a court can

impose to remedy misconduct on the part of the Commonwealth

. . . .   The burden is on a defendant to demonstrate why the

dismissal of criminal charges is warranted. . . .   The threshold
                                                                      6


to be crossed before dismissal is appropriate is high."

Commonwealth v. Gardner, 467 Mass. 363, 368-369 (2014).

       Here the judge sua sponte dismissed the complaint without

prejudice because the Commonwealth had not produced a drug

certificate that had not yet been created.2      "Where a judge

dismisses a criminal complaint without prejudice, the judge's

decision shall be upheld absent an abuse of discretion."       Id. at

368.       As that standard was recently reformulated, "a judge's

discretionary decision constitutes an abuse of discretion where

we conclude the judge made 'a clear error of judgment in

weighing' the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives."

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation

omitted).

       We recognize that a judge has a "legitimate 'concern over

the court calendar and the need to move cases along.'"

Commonwealth v. Fossa, 40 Mass. App. Ct. 563, 567-568 (1996)

(citation omitted).       Thus, we have affirmed the dismissal of a

complaint without prejudice where on the morning that a case was

called for trial, the Commonwealth was not ready to go forward

because the prosecutor had failed to summons the witnesses who

       2
       As in Commonwealth v. Anderson, 402 Mass. 576, 579 (1988),
the Commonwealth's brief here mistakenly relies on a line of
cases where complaints were dismissed with prejudice. See,
e.g., Commonwealth v. Cronk, 396 Mass. 194, 195 (1985);
Commonwealth v. Borders, 73 Mass. App. Ct. 911, 912 (2009).
                                                                   7


were thus not present; defense counsel previously had made

"numerous and unproductive court appearances"; the prosecutor

took "the cavalier attitude that the complaint, outstanding for

six months, was 'young'"; the case "had been continued three

times before because of the Commonwealth's inexplicable

inability to provide defense counsel with a crucial discovery

document, the police report"; and the prosecutor was unable to

give the judge "any assurance that a new date would not require

even further rescheduling."     Commonwealth v. Joseph, 27 Mass.

App. Ct. 516, 518-519 (1989).    See Commonwealth v. Anderson, 402

Mass. 576, 577, 579 (1988) (judge did not abuse his discretion

in dismissing complaints because of "the prosecutor's tardiness

and lack of readiness to proceed on the first day of trial, the

prosecutor's repeated tardiness on the second day of trial, and

the unfairness to the jurors, the witnesses, and the defendant

inherent in the prosecutor's undue delays," and where "[t]he

Commonwealth has demonstrated no undue prejudice from the

judge's decision to require instead that it seek fresh

complaints and begin the process of prosecuting the defendant

anew"); Commonwealth v. Clark, 454 Mass. 1001, 1002 (2009),

(judge has authority to dismiss an indictment without prejudice

"where the Commonwealth has repeatedly failed to produce its

witnesses and effectuate a prosecution"), citing Commonwealth v.

Jenkins, 431 Mass. 501 (2000).
                                                                   8


    On the other hand, we have vacated the dismissal of a

complaint without prejudice where, on the morning of trial,

though the defendant's five witnesses were present, the

prosecutor was not ready to go forward because he had just been

informed that the arresting officer who had been summonsed was

on active duty in the National Guard.   Commonwealth v. Jackson,

27 Mass. App. Ct. 521, 522 (1989).   Concluding that the record

did not warrant the judge's dismissal of the indictment without

prejudice, we said:

    "[W]e do not see any support in the record before us
    for the judge's finding that the officer was negligent
    in failing to notify anyone of his National Guard
    duty. There is no indication whether the officer had
    been informed of the trial date prior to the issuance
    of the summons, whether the summons was served before
    or after he left for active duty, or whether he had
    arranged or reasonably expected that another officer
    within the police department would timely explain his
    inability to appear on the scheduled trial date. . . .

         "Additionally, although the judge found that the
    officer's conduct was prejudicial to the defendant,
    the only fact on this record to lend support to that
    finding is that the defendant's five witnesses were
    present. We do not minimize the inconvenience caused
    by the turn of events, but we do not view that fact,
    standing alone, as sufficient to constitute prejudice
    justifying dismissal of the complaints."

Id. at 523.   See Commonwealth v. Gardner, 467 Mass. at 368

("[D]ismissal of the criminal complaint was unwarranted where

the defendant failed to show that Dookhan [the forensic chemist]

might have tampered with the evidence in his case and where
                                                                   9


there was no evidence that the Commonwealth had withheld or

failed to disclose existing exculpatory evidence").

     We think that the instant case is more similar to Jackson

and Gardner than it is to Joseph and Anderson.   There is no

indication on this record that the prosecutor acted in a

"cavalier" fashion or that the defendant was inconvenienced by

the delay in providing the discovery; indeed, the defendant was

not contesting that the drugs in issue were her own prescription

drugs and counsel informed the court that because they were

prescription drugs he was "not as concerned" about the delay in

providing the drug certificate.   As in Jackson, and unlike in

Joseph, it appears that here there was a mitigating explanation

for the delay in testing and certification -- i.e., the

congestion in the Commonwealth's drug analysis laboratories

caused by the closing of the Jamaica Plain laboratory after the

discovery that a forensic chemist had signed numerous

misrepresented drug certificates there.3   See generally

Commonwealth v. Scott, 467 Mass. 336, 337-342 (2014).      As

reflected by the judge's advice here to the defendant that the

Commonwealth could reinstitute charges, there is no indication

of deliberate governmental misconduct that might warrant the

sanction of dismissal.   See Commonwealth v. Gardner, 467 Mass.

     3
       Such notice of a mitigating factor does not in any way
diminish the Commonwealth's obligation to provide prompt and
diligent discovery.
                                                                   10


at 368 (contrasting cases where the sanction was appropriate).

We further note that unlike in Joseph and Anderson, this case

had not reached the trial stage and there was no inconvenience

to jurors or witnesses.    In any event, the record is silent as

to the causes of the two prior continuances, which were not

objected to by the defendant, nor is there any reason provided

why the judge did not pursue a course short of dismissal without

prejudice.    For example, he could have ordered a break in the

proceedings and directed that the prosecutor call the Sudbury

laboratory to determine the precise status of the certificate

and also to set a firm date for its delivery as well as a firm

trial date.   In short, confined in our review to the spare

record here, and though appreciating the concern of the busy

judge to move his docket, we are left to conclude that the

dismissal, which the defendant did not seek, "falls outside the

range of reasonable alternatives," L.L. v. Commonwealth, 470

Mass. at 185 n.27, and was thus an abuse of discretion.

    The order dismissing the complaint is vacated and the case

is remanded for further proceedings.

                                     So ordered.
