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15-P-944                                                 Appeals Court

                      COMMONWEALTH   vs.   ERIC MOORE.


                              No. 15-P-944.

           Suffolk.      December 5, 2017. - March 22, 2018.

             Present:    Trainor, Meade, & Wolohojian, JJ.


Motor Vehicle, Unauthorized use. Rules of Criminal Procedure.
     Probable Cause. Practice, Criminal, Complaint, Dismissal,
     Arraignment. Constitutional Law, Separation of powers.


     Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on March 23, 2015.

    A motion to dismiss was heard by Myong Joun, J.


     Helle Sachse, Assistant District Attorney, for the
Commonwealth.
     Bruce W. Carroll for the defendant.


    TRAINOR, J.       The defendant, Eric Moore, was charged with,

among other things, using a motor vehicle without authority (use

without authority), in violation of G. L. c. 90, § 24(2)(a).         At

the arraignment hearing, the defendant orally moved to dismiss

the charge of use without authority; the judge allowed the

defendant's motion prior to arraignment and proceeded to arraign
                                                                      2


the defendant on the remaining charges.     The Commonwealth filed

this timely appeal, arguing that the judge erred in dismissing

the use without authority charge for two reasons:     first, a

complaint against an adult defendant, unlike one against a

juvenile, cannot be dismissed prior to arraignment; and second,

the complaint was supported by probable cause that the defendant

used the motor vehicle without authority.    For the reasons set

forth infra, we reverse the dismissal of the charge of use

without authority.

    Background.      On March 23, 2015, the defendant was driving a

rental car and was pulled over for failing to come to a complete

stop at a stop sign.    When the police officers asked the

defendant for his license and registration, the defendant

responded that he did not have a license in his possession.

Upon a criminal justice information system query, the officers

learned that the defendant's out-of-State license was suspended.

The officers then contacted the rental company and obtained a

copy of the rental agreement for the vehicle, which provided

that Nicole Hosier of Pittsfield was the only individual

authorized to operate the rental car.    The officers subsequently

arrested the defendant for, among other things, use without

authority, and towed the rental car.

    At the defendant's arraignment hearing, defense counsel

requested to be heard prior to the arraignment.     Defense counsel
                                                                    3


asked the judge to dismiss the use without authority charge

because the facts do "not constitute . . . use without

authority."   The judge agreed, stating:

    "[W]here there's a rental company, there's a lessee for
    that car. If somebody else is driving, I understand the
    civil issue between the rental company and whoever was
    driving, and maybe there's a civil issue with the person
    who actually rented the car, but under the criminal
    statute, where you're charging the person with use without
    authority simply based on the fact that the person who's
    driving, his name is not on the lease agreement, I don't
    believe that that's what the statute was intended for."

The judge dismissed the use without authority charge prior to

arraigning the defendant on that charge.   The Commonwealth filed

the instant appeal.   However, due to the pending release of the

Supreme Judicial Court decision in Commonwealth v. Campbell, 475

Mass. 611 (2016), the appellate proceedings for this case were

stayed.   We now address the Commonwealth's appeal.

    Discussion.    This case requires us to decide whether a

judge can allow an adult defendant's motion to dismiss a

criminal charge prior to arraignment on that charge, after a

clerk-magistrate's finding of probable cause.   Initially, this

question involves an analysis and an application of the

Massachusetts Rules of Criminal Procedure and the relevant case

law, but ultimately it also requires an analysis of a judge's

authority pursuant to art. 30 of the Massachusetts Declaration
                                                                       4


of Rights.1   These analyses are separate but related, and a

judge's authority in this area is ultimately determined by the

requirements of art. 30.

     1.    Massachusetts Rules of Criminal Procedure.     "In

interpreting a rule of criminal procedure, we turn first to the

rule's plain language."       Commonwealth v. Denehy, 466 Mass. 723,

733 (2014).    The Supreme Judicial Court, in this instance, has

provided us with a detailed blueprint of a party's motion

practice and the procedural stages in which such practice is to

take place.    Rule 11(a), as appearing in 442 Mass. 1509 (2004),

states that "[a]t arraignment . . . the court shall order the

prosecuting attorney and defense counsel to attend a pretrial

conference on a date certain to consider such matters as will

promote a fair and expeditious disposition of the case"

(emphases supplied).    Rule 11(b)(2)(ii), as appearing in 442

Mass. 1509 (2004), states that such matters shall include "all

discovery motions pending at the time of the pretrial hearing,"

and that all "[o]ther pending pretrial motions," namely

nondiscovery motions, such as a motion to dismiss, "may be heard

     1   Article 30 states:

     "In the government of this commonwealth, the legislative
     department shall never exercise the executive and judicial
     powers, or either of them: the executive shall never
     exercise the legislative and judicial powers, or either of
     them: the judicial shall never exercise the legislative
     and executive powers, or either of them: to the end it may
     be a government of laws and not of men."
                                                                    5


at the pretrial hearing, continued to a specific date for a

hearing, or transmitted for hearing by the trial session"

(emphases supplied).   Similarly, rule 13, as appearing in 442

Mass. 1516 (2004), provides that "[a] non-discovery motion filed

prior to the pretrial hearing may be heard at the pretrial

hearing, at a hearing scheduled to address the motion, or at the

trial session" (emphases supplied).   While neither rule 11 nor

rule 13 affirmatively "prohibits a motion to dismiss from being

filed or ruled upon before arraignment," Commonwealth v.

Humberto H., 466 Mass. 562, 574 (2013), neither rule

affirmatively provides a judge with the authority to rule on

such motions brought by an adult defendant before arraignment.

Rather, the rules of criminal procedure provide a motion

practice that is implemented after arraignment and specifically

provide that a judge may rule on such motions either at the

pretrial hearing, at a hearing scheduled to address the motion,

or at the trial session, all of which naturally occur after the

defendant has been arraigned on the charge(s).   Cf. Commonwealth

v. Newton N., 478 Mass. 747, 752-753 (2018); Commonwealth v.

Orbin O., 478 Mass. 759, 762-763 (2018).

    Dismissing an adult defendant's charge prior to arraignment

not only would exceed the judge's authority provided by the

rules, but also would run contrary to our case law.    In
                                                                   6


Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002), the

Supreme Judicial Court held:

    "[T]he issuance of a complaint by a clerk-magistrate is not
    to be revisited by a further show cause hearing; the
    defendant's remedy is a motion to dismiss the
    complaint. . . . [A] motion to dismiss . . . is the
    appropriate and only way to challenge a finding of probable
    cause. After the issuance of a complaint, a motion to
    dismiss will lie for a failure to present sufficient
    evidence to the clerk-magistrate (or judge) . . . for a
    violation of the integrity of the proceeding . . . or for
    any other challenge to the validity of the complaint."2,3

As previously stated, such nondiscovery motion practice occurs

after arraignment.

    Moreover, the Supreme Judicial Court holding in Humberto

H., which provides Juvenile Court judges with the broad

discretion to dismiss a complaint against a juvenile defendant

prior to arraignment, does not apply to adult offenders.   The

court in Humberto H. held that a judge does not abuse his or her

discretion in deciding to hear and to rule on a juvenile's

motion to dismiss before arraignment where the judge reviews the

complaint application and "concludes that there is a substantial

likelihood that the motion is meritorious."   466 Mass. at 575.

    2  In all situations covered by the section's procedure,
process cannot issue unless there is probable cause to believe
that the person who is the object of the complaint has committed
the offense charged. See G. L. c. 218, § 35A.

    3  Judges of the Boston Municipal Court Department and the
District Court Department have the inherent authority, however,
to rehear denials of applications for criminal complaints by
clerk-magistrates. See Bradford v. Knights, 427 Mass. 748, 752-
753 (1998).
                                                                   7


See Commonwealth v. Newton N., supra; Commonwealth v. Orbin O.,

supra.   In reaching this conclusion, the court reasoned that

because the "juvenile justice system 'is primarily

rehabilitative, cognizant of the inherent differences between

juvenile and adult offenders, and geared toward "the correction

and redemption to society of delinquent children,"'" Juvenile

Court judges must have the "broad discretion to protect the best

interests of children consistent with the interests of justice,"

which includes the discretion to dismiss charges before

arraignment, if no probable cause exists, to prevent the

creation of a juvenile's court activity record information

(CARI) (emphasis supplied).   Commonwealth v. Humberto H., supra

at 576 (citation omitted).    This analysis does not likewise

extend to adult offenders.

    Here, unlike in Humberto H., the defendant has failed to

provide us with any policy reason or statutory authority that

would cause us to apply the rules of criminal procedure in a way

that would allow a judge to dismiss a criminal charge against an

adult offender prior to arraignment.   See id. at 575-576

(applying [1] goal of preventing creation of juvenile's CARI,

[2] primary goal of juvenile justice system, which is to

rehabilitate juveniles, and [3] G. L. c. 119, § 53, which

mandates that juveniles "as far as practicable . . . shall be

treated, not as criminals, but as children in need of aid,
                                                                     8


encouragement and guidance," to application of rules of criminal

procedure, specifically dismissal of criminal charge prior to

arraignment for lack of probable cause).

    A judge, therefore, cannot dismiss an adult criminal

complaint prior to arraignment, after a clerk-magistrate has

determined that sufficient probable cause (legal basis) existed

to issue the complaint.   This limitation is based in our case

law and our rules of criminal procedure and is focused

exclusively on a judge's authority prior to the arraignment

stage, subsequent to the issuance of a criminal complaint.     See

Bradford v. Knights, 427 Mass. 748, 752-753 (1998); Commonwealth

v. DiBennadetto, 436 Mass. at 312-313.     We must consider,

finally, whether a judge has the authority, in consideration of

the constitutional separation of powers doctrine as contained in

art. 30, to dismiss a criminal complaint after it has issued and

after the defendant has been arraigned on the charge.

    2.   Article 30.   "In the context of criminal prosecutions,

the executive power affords prosecutors wide discretion in

deciding whether to prosecute a particular defendant, and that

discretion is exclusive to them. . . .   'Judicial review of

decisions which are within the executive discretion of the

[prosecutor] "would constitute an intolerable interference by

the judiciary in the executive department of the government and

would be in violation of art. 30 of the Declaration of
                                                                    9


Rights."'"   Commonwealth v. Cheney, 440 Mass. 568, 574 (2003)

(citation omitted).

     A judge may determine, under our separation of powers, only

whether a sufficient legal basis exists for issuance of a

criminal complaint.   "[W]hen a judge, '[w]ithout any legal basis

. . . preempt[s] the Commonwealth's presentation of its case

[t]hat action effectively usurp[s] the decision-making authority

constitutionally allocated to the executive branch.'"4   Ibid.

(citation omitted).   See Commonwealth v. Hart, 149 Mass. 7, 8

(1889) ("Only an attorney authorized by the Commonwealth to

represent it has authority to declare that he will not further

prosecute a case in behalf of the Commonwealth.   A court is not

a prosecuting officer, and does not act as the attorney for the

Commonwealth.   Its office is judicial, -- to hear and determine

between the Commonwealth and the defendant").5




     4 The right to pursue a criminal prosecution is vested in
the Commonwealth and not in a private party. While a private
party has the right to request the issuance of a criminal
complaint, if a judge or clerk-magistrate declines to issue a
complaint the private party may request a rehearing but
ultimately has no right of appeal and can only request "the
Attorney General or a district attorney to pursue the
matter. . . . Should one of these authorities decide to
prosecute, neither a judge of the District Court" (or of the
Boston Municipal Court) nor "a clerk-magistrate may bar the
prosecution, as long as the complaint is legally valid."
Victory Distribs. v. Ayer Div. of the Dist. Ct. Dept., 435 Mass.
136, 143 (2001). See Bradford v. Knights, 427 Mass. at 752-753;
Commonwealth v. Quispe, 433 Mass. 508, 511-512 & n.5 (2001).
                                                                  10


     The Federal courts have determined that the existence of

probable cause is necessary for a criminal charge to be legally

adequate.6   The existence of probable cause is also necessary for

a criminal charge to be legally adequate within this

Commonwealth.   See generally Commonwealth v. DiBennadetto, 436

Mass. at 312; Commonwealth v. Clerk-Magistrate of the W. Roxbury

Div. of the Dist. Ct. Dept., 439 Mass. 352, 354-356 (2003);

Commonwealth v. Humberto H., 466 Mass. at 564-566.     The rules of

criminal procedure and our case law have defined the procedural

requirements of a judicial determination of the legal adequacy

of a criminal complaint.   This judicial determination is the

appropriate and necessary exercise of the judicial function

contained in art. 30.

     Thus, procedurally, once the complaint has been issued by

the clerk-magistrate, the question of its legal adequacy cannot

be reconsidered until after arraignment of the defendant on the

     5 For examples of legal justification for dismissing a case,
in addition to a lack of probable cause, when the complaint or
the indictment is legally invalid, see Commonwealth v. Gordon,
410 Mass. 498, 502-503 (1991).

     6 "In our criminal justice system, the Government retains
'broad discretion' as to whom to prosecute. . . . '[S]o long as
the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or
not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion.'"
United States v. Zabawa, 39 F.3d 279, 284 (10th Cir. 1994),
quoting from Wayte v. United States, 470 U.S. 598, 607 (1985).
See United States v. Sanchez, 908 F.2d 1443, 1445 (9th Cir.
1990).
                                                                  11


criminal charge.   Reconsideration of the legal adequacy of the

issued complaint may be conducted pursuant to a motion to

dismiss after arraignment.   The Commonwealth's prosecutorial

rights protected by art. 30 are implicated on the determination

of legal adequacy whether initially by the clerk-magistrate or

subsequently by a judge pursuant to consideration of a motion to

dismiss.

     Conclusion.   We conclude that a judge does not have the

authority to dismiss a criminal charge against an adult offender

prior to arraignment after the complaint has issued on that

charge, but does have authority to consider the legal adequacy

of the criminal charge subsequently, pursuant to a motion to

dismiss the complaint.7   Thus, here, the order dismissing the

charge of use without authority is reversed.   The Commonwealth

may move for arraignment of the defendant on this charge if it

so chooses.

                                    So ordered.




     7 We note that while a judge may revisit the question of
probable cause at a later, postarraignment, stage of the
proceedings, the question whether the defendant, in this case,
was authorized by Hosier to operate the vehicle does not appear
on the record currently before us. See Commonwealth v.
Campbell, 475 Mass. at 621-622 ("[a]n individual does not
violate G. L. c. 90, § 24[2][a], by using a rental vehicle with
the renter's permission when the rental company also has not
authorized that use").
