COMMONWEALTH v. DINOIA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from orders denying its motion for a continuance and dismissing this criminal case. The Commonwealth had sought a continuance of almost one year, because the Commonwealth's critical witness -- a State trooper –- was also a member of the United States Coast Guard, and had been deployed overseas. The judge denied the continuance and dismissed the case, purportedly “without prejudice,” concluding that a one-year continuance would result in undue prejudice to the defendant. In denying the Commonwealth's motion for reconsideration, the judge also found “a measure of misconduct” by the trooper, because he was engaged in “two positions of employment at the same time.” The Commonwealth appeals, and we reverse.

Background. On April 9, 2018, the defendant was charged in the District Court with operating a motor vehicle under the influence of intoxicating liquor (OUI). A trial readiness conference was scheduled for March 20, 2019, and trial for April 4, 2019, just short of one year from the defendant's arraignment.

On March 17, 2019, the prosecutor learned that Trooper Peter Mullin, who had arrested the defendant and authored a detailed arrest report, was also a member of the United States Coast Guard and was then deployed overseas. At the March 20 trial readiness conference, the prosecutor conveyed that Mullin was an essential witness, and that he would be unavailable to testify on April 4 because of his deployment.

On April 4, the Commonwealth reaffirmed that it would be unable to proceed to trial without Mullin available to testify. It moved for a continuance of almost one year, until March 2020, in light of Mullin's expected return in February 2020. The prosecutor argued that granting the continuance would not lead to a violation of the speedy trial provisions of Mass. R. Crim. P. 36 (b), 378 Mass. 909 (1979) (rule 36), because the time between the grant of the continuance and the new trial date would constitute excludable time under rule 36 (b) (2) (B). That subsection excludes “[a]ny period of delay resulting from the absence or unavailability of ․ an essential witness.”

The defendant opposed the Commonwealth's motion. Defense counsel argued that a continuance would not result in excluded time under rule 36 (b), and that additional delay of nearly one year would be “extremely stressful” for the defendant. The defendant also moved for dismissal of the complaint for failure to prosecute.²

The motion judge denied the Commonwealth's motion and dismissed the case “without prejudice.” His decision stated that a continuance would not result in excluded time under rule 36 (b). The judge also concluded that under the balancing test established in Mass. R. Crim. P. 10, 378 Mass. 861 (1979) (rule 10), regarding continuances, dismissal without prejudice was “appropriate.”

The Commonwealth subsequently moved for reconsideration. In its brief the Commonwealth argued, among other things, that in light of the particular facts of this case, the dismissal without prejudice was tantamount to a dismissal with prejudice, because in light of the dismissal the Commonwealth would be unable to meet the requirements of rule 36. The same judge denied the reconsideration motion. The Commonwealth appealed.

Discussion. The gist of the Commonwealth's argument is that the judge erred in his application of rule 36 (b) and rule 10, and more particularly that the judge erred in dismissing the case where under the circumstances the dismissal was tantamount to a dismissal with prejudice. We agree that the dismissal should be treated as a dismissal with prejudice, and that the dismissal was inappropriate here, where there was an insufficient showing of either egregious prosecutorial misconduct, or serious prejudice to the defendant.

To begin, the dismissal here is properly treated as “with prejudice.” Under rule 36 (b) (1) (C), if a defendant is not tried within twelve months of her arraignment, she is entitled upon motion to a dismissal of all charges, unless some of the time between arraignment and trial is excludable under the rule. As the Commonwealth advised the judge in its motion for reconsideration, delay that results from a judicial dismissal -- that is, the time between a dismissal without prejudice and “subsequent rearraignment” -- is not excludable under rule 36. Commonwealth v. Denehy, 466 Mass. 723, 734 (2014). Because the time after the dismissal would not be excludable, the Commonwealth would have been unable to meet the one-year requirement for these charges. In analogous circumstances, this court has treated the refusal to grant a continuance as “tantamount to dismissal with prejudice,” where the denial of the continuance effectively “assured an outcome adverse to the Commonwealth.” Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 201 (2004) (where critical Commonwealth witness was absent despite being subpoenaed by prosecutor, error to refuse continuance).

Our cases establish that a judge should not dismiss criminal charges with prejudice absent a showing of very unusual circumstances. “Dismissal of a criminal complaint with prejudice is a draconian sanction that must be reserved for cases manifesting egregious prosecutorial misconduct or a serious threat of prejudice to the defendant.” Commonwealth v. Borders, 73 Mass. App. Ct. 911, 912 (2009). This is because “the public, whom the Commonwealth represents, ‘has a substantial interest in prosecuting those accused of crime and bringing the guilty to justice’ ” (citation omitted). Id.

There was no proof of such unusual circumstances here. There was no showing of either (1) egregious misconduct by the Commonwealth, or (2) a serious threat of prejudice to the defendant. As to the prosecutor's conduct, the record shows that the prosecutor informed both defense counsel and the court of Trooper Mullin's unavailability at the first trial readiness conference on March 20, 2019, two weeks in advance of the original trial date and just three days after learning of Mullin's deployment. This conduct is consistent with the guidance articulated in Commonwealth v. Burston, 77 Mass. App. Ct. 411, 418 n.12 (2010) -- “that counsel ․ level with the session judge ․ at the earliest possible time ․”

Furthermore, there is no basis in the record for the conclusion, first suggested by defense counsel and adopted by the judge, that the Commonwealth was somehow at fault because it employed a State trooper who also had a “military obligation.” The defendant points to no limitation on the Commonwealth's ability to employ State troopers who also have military obligations, and the record is barren of any evidence that the prosecutor knew of the trooper's obligation prior to March 17, 2019, or somehow failed to disclose the timing of the obligation to the detriment of the defendant or the court. There was thus no basis for the judge's attribution of “a measure of misconduct” to the Commonwealth.

Similarly, the record does not support the conclusion that the requested continuance would have seriously prejudiced the defendant. See Borders, 73 Mass. App. Ct. at 912 (no suggestion in record that continuance would affect defendant's right to fair trial). Defense counsel merely averred, at the motion hearing, that it would be “extremely stressful” to her client if the case were to remain open for another year. There was no affidavit from the defendant, and no other prejudice was argued. While the judge reasoned that a criminal defendant would suffer “inherent prejudice” in waiting almost two years to be brought to trial, we do not agree that a delay of that length, without more particulars specific to this defendant, is sufficient to satisfy the “serious threat of prejudice” necessary to justify a dismissal with prejudice. See Commonwealth v. Connelly, 418 Mass. 37, 38-39 (1994) (reversing judge's dismissal with prejudice where “prosecutor's conduct inconvenienced the court, [and] the defendant[,]” but did not “prejudice the defendant's ability to receive a fair trial”).

We are not unmindful of the judge's important need to control his docket, and to adjudicate cases fairly and efficiently. A judge ruling on a motion for continuance accordingly has considerable discretion in evaluating, weighing, and applying the several factors identified in rule 10. Commonwealth v. Graham, 480 Mass. 516, 536-537 (2018). Moreover, we recognize that the one-year continuance requested here was substantial, and that such delays can prejudice a criminal defendant. Where, however, a refusal of the continuance would result in the termination of a criminal prosecution, the judge must examine carefully any assertions of prejudice to the defendant, as well as any alleged failings by the Commonwealth in prosecuting the case.³

On the record before us, this case is very similar to Commonwealth v. Jackson, 27 Mass. App. Ct. 521 (1989). In that case a District Court judge had dismissed an OUI complaint after being advised, at the call of the trial list, that the arresting officer was unavailable to testify because of his obligations to the National Guard. The judge reasoned that the arresting officer's failure to give notice of his inability to appear was “negligent and prejudicial to the defendant.” Id. at 522. This court reversed, noting that there was no support in the record for the judge's finding of negligence, and that in any event, the officer's conduct was not “so egregious as to require dismissal of the complaint[s]” (citation omitted). Id. at 523. See Borders, 73 Mass. App. Ct. at 912 (reversing judge's dismissal with prejudice where two critical witnesses were unavailable at first trial date, and noting “[t]he judge's failure to find either egregious prosecutorial misconduct or serious prejudice to the defendant”).

Finally, we also agree with the Commonwealth that, in light of the trooper's unavailability, the time between the grant of a continuance and the new trial date would be excludable under rule 36 (b) (2) (B). The motion judge cited no authority and offered no reasoning in ruling to the contrary. Under the plain language of the rule, Trooper Mullin was “unavailable” to testify at the original trial date. An exclusion from the speedy trial calculus under rule 36 (b) (1) was thus warranted.

The orders denying the Commonwealth's motion for a continuance, allowing the defendant's motion to dismiss, and denying the motion for reconsideration are reversed.

So ordered.

reversed

FOOTNOTES

2.   At no point during this litigation has the defendant disputed that Trooper Mullin is an essential witness. Nor has she invoked her constitutional speedy trial rights.

3.   In that regard, we note that the first factor listed in rule 10 is whether the denial of a continuance “would be likely to make a continuation of the proceeding impossible ․” Mass. R. Crim. P. 10 (a) (2) (A).