Criminal – Dismissal – Prejudice

Listen to this article

Where a District Court judge ordered the dismissal with prejudice of a criminal complaint, there was no showing of “irremediable harm,” so the dismissal should not have been with prejudice.

Reversed and remanded.

“The Commonwealth appeals from an order of a District Court judge dismissing, with prejudice, a criminal complaint charging the defendant with assault and battery on a child causing injury and permitting injury to a child, both in violation of G.L.c. 265, §13J(b). The complaint, which issued on April 28, 2021, arose from an accusation by the father of the child that the defendant and her boyfriend abused the child by hitting him and burning him with a lit cigarette.

“Trial was scheduled for January 19, 2022, but, on that date, the matter was continued until March 21. The Commonwealth answered not ready for trial on March 21, however, and, at its request and over the defendant’s ‘strong objection,’ the matter was continued to April 11. The docket was marked ‘NFC,’ meaning that no further continuances would be allowed. On April 11, the Commonwealth stated that it would be ready for trial, as the child’s father had gone to pick up the six year old from school. The Commonwealth later admitted, however, that it could not proceed because, after speaking with the child, it determined that he was not capable of testifying as a witness at that time. The Commonwealth requested a further continuance to investigate alternative ways to go forward with the case, such as proceeding without the child as a witness. After some discussion on the matter, the defendant moved for dismissal with prejudice, and the judge allowed the motion. The Commonwealth now appeals, arguing that the judge exceeded his authority in dismissing the charges with prejudice because there was no showing of ‘irremediable harm.’ We agree and reverse so much of the order as specified that the dismissal was with prejudice and remand the matter to the District Court for entry of a disposition consistent with this memorandum and order. …

“As the judge’s reasoning focused on the question of irremediable harm, we turn first to consider whether sufficient harm existed to support dismissal of the complaint with prejudice and conclude that it did not. … In dismissing the case, the judge stated that ‘[t]he passage of time, in my experience, does not necessarily improve the ability of witnesses to remember events in the past. … [T]hat fact is a real element of the prejudice to the [d]efendant if the case is revived at some later time.’ That said, degradation of the witness’s memory was not enough to support dismissal of the charges with prejudice. The Legislature has addressed that concern by setting forth a six-year statute of limitations for the crimes with which the defendant was charged, see G.L.c. 277, §63, and a judge may not shorten that period through exercise of the authority to dismiss a case with prejudice. …

“We are further unconvinced that prosecutorial misconduct could be said to support dismissal of the charges with prejudice. The defendant asserts that the prosecutor’s failure to prepare — or indeed, even interview — the child before trial was so negligent as to self-evidently rise to the level of ‘egregious, deliberate, and intentional’ misconduct. … We are not persuaded. Although it is plainly clear that the conduct of the Commonwealth in this respect missed the mark, we discern nothing in the record to support the conclusion that the government’s failure to speak with the child prior to trial was deliberate or intentional. …

“For the foregoing reasons, we reverse so much of the order of dismissal as specified that the dismissal was with prejudice and remand the matter to the District Court for entry of a disposition consistent with this memorandum and order.”

Commonwealth v. Grothe (Lawyers Weekly No. 81-106-24) (6 pages) (Docket No. 23-P-423) (Sept. 17, 2024).

Click here to read the full text of the opinion.