Commonwealth v. Hosmer5/2/2000
Hampden.
March 15, 2000. - May 2, 2000.
Practice, Criminal , Dismissal, Amendment of indictment or complaint, Judicial discretion.
Complaint received and sworn to in the Chicopee Division of the District Court Department on September 22, 1998.
The case was heard by Robert L. Howarth, J.
Minutes into direct examination of the Commonwealth's first witness, the prosecutor moved to amend the complaint to reflect that the offense charged, driving under the influence of alcohol -- second offense, had occurred on September 21, 1998, rather than September 22, 1998. Defense counsel objected, and a judge of the Chicopee District Court, who was hearing the case jury-waived, denied the motion. The prosecutor, following argument to persuade the judge to reconsider, was told by the judge, "Your motion has been denied. You have a right to appeal." At that, the prosecutor remonstrated, "I didn't make a decision not to proceed at this point." The judge made it abundantly clear that he regarded the case over and said, once again, "You have the right to appeal my decision." We conclude that the judge dismissed the Commonwealth's complaint, and that this was an abuse of discretion.
1. Status of case at conclusion of proceedings in the District Court. Purportedly, the case comes to us under G. L. c. 278, Sect. 28E, which, among other things, authorizes a district attorney to appeal a decision in the District Court allowing a motion to dismiss a complaint. Neither the docket nor the transcript of proceedings shows a motion by the defendant to dismiss the complaint or the allowance of such a motion. Indeed, the District Court docket, by a check mark, records a finding of not guilty. Although the transcript does not contain such a finding, the Commonwealth acknowledges that the judge uttered, "not guilty," as he strode off the bench.
If there was a finding of not guilty, principles of double jeopardy prevent a retrial of the defendant on the same charge. Commonwealth v. Brusgulis, 398 Mass. 325, 333 (1986). In considering "the exact nature of the action taken by the District Court judge," however, we are not bound by labels or checkmarks on a form, but we inquire whether there was a resolution of any of the facts that make up the offense charged. Commonwealth v. Babb, 389 Mass. 275, 281 (1983). See United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977); United States v. Scott, 437 U.S. 82, 96 (1978). A reading of the transcript of the trial -- before it came to an abrupt end -- discloses that the testimony of the first witness, a security officer at Westover Air Reserve Base, did not proceed beyond a description of the roads into the base and a question about whether he had noticed a car that aroused his suspicion. Then the prosecutor started to ask, "At around 11:40 or so in the evening," and at that point, hesitated and interjected, "Actually we're, Your Honor, I'm going to have to make an oral motion to amend the date of the offense. I just noticed that it's September 21st." Defense counsel objected, the government's motion to amend was denied, and, as described above, presentation of evidence came to a conclusion. There was no testimony that would have enabled the judge to decide whether the defendant on September 21 or 22, 1998, was driving an automobile on a public way and, if so, whether the defendant was impaired by alcohol while driving. At the point the judge ended the trial, he could not have made a finding of any essential fact and, therefore, could not have decided that the defendant was entitled to a required finding of not guilty.
It is apparent from the record that the judge cut off the trial because he th
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