NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-423

COMMONWEALTH

vs.

HEATHER A. GROTHE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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.1

1 A physician assistant also told police that the child 

stated that the defendant inserted a strand of her hair into his 

penis.
2

Trial was scheduled for January 19, 2022, but, on that 

date, the matter was continued until March 21.2 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.3, 4 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 

2 The docket is unclear as to why the trial was continued on 

January 19. The Commonwealth suggests that the continuance was 

requested by the defendant, while the defendant proposes that 

the delay was because of the COVID-19 pandemic. The cause of 

the continuance does not bear on our decision.

3 The Commonwealth stated that "[the child's] attention was 

elsewhere" and that "he was also very concerned [about] the 

location" of the defendant.

4 The Commonwealth had only spoken to the child for the 

first time that day.
3

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.

Discussion. "Generally, 'where a prosecutor is unprepared 

to present her case due to the unexpected absence of a witness, 

a judge has discretion to dismiss the case without prejudice.'" 

Commonwealth v. Graham, 480 Mass. 516, 536 (2018), quoting 

Commonwealth v. Lucero, 450 Mass. 1032, 1033 (2008). However, 

"a court's inherent authority to dismiss an indictment with 

prejudice may be exercised only where there is either a 'showing 

of irremediable harm to the defendant's opportunity to obtain a 

fair trial' or 'prosecutorial misconduct that is egregious, 

deliberate, and intentional, or that results in a violation of 

constitutional rights.'" Commonwealth v. Rosa, 491 Mass. 369, 

373 (2023), quoting Bridgeman v. District Attorney for the 

Suffolk Dist., 476 Mass. 298, 316 (2017). "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." 

Commonwealth v. Borders, 73 Mass. App. Ct. 911, 912 (2009), 

quoting Commonwealth v. Cheney, 440 Mass. 568, 574 (2003). 

Accordingly, "dismissal with prejudice 'is a remedy of last 
4

resort.'" Bridgeman, 476 Mass. at 316, quoting Commonwealth v. 

Cronk, 396 Mass. 194, 198 (1985). See Commonwealth v. Mason,

453 Mass. 873, 877 (2009) (dismissal "precludes a public trial" 

[citation omitted]).

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. See Borders, 73 Mass. 

App. Ct. at 913 (lack of record support for order of dismissal

permitted review of order despite absence of formal findings). 

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.5 See 

5 The defendant also argued, below and before this court, 

that the harm suffered by the defendant in the course of a

parallel civil case was enough to sustain the dismissal of the 

charges with prejudice. That assertion is misguided, however, 
5

Commonwealth v. McLaughlin, 431 Mass. 241, 250 (2000) ("The 

appropriate statute of limitations is a matter for the 

Legislature").

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. Rosa, 491 

Mass. at 373. 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.6 See Commonwealth

as the "[p]rejudice required for dismissal focuses on the 

subsequent trial and the interference with procedural rights 

therein." Mason, 453 Mass. at 877. See Borders, 73 Mass. App. 

Ct. at 912 (dismissal with prejudice not supported in absence of 

finding that, inter alia, defendant's right to fair trial would 

be affected). The defendant rightly conceded at oral argument 

that there is no legal authority supporting the proposition 

that, in the context of a criminal case, prejudice can be 

defined by what occurs in a related civil proceeding.

6 Moreover, prosecutorial misconduct alone is almost never 

enough to support the dismissal of criminal charges. See Mason, 

453 Mass. at 877 ("Although our cases have suggested that 

nonprejudicial but egregious prosecutorial misconduct might in 

some circumstances warrant dismissal of criminal charges, we 

have never dismissed charges in such circumstances in the 

absence of prejudice" [citation omitted]).
6

v. Clegg, 61 Mass. App. Ct. 197, 202 (2004) ("Such a sanction 

should be reserved for hard core transgressions, not a situation 

such as this where there is no basis for concluding that the 

Commonwealth was not acting in good faith or that the delay was 

other than unintentional" [quotation and citation omitted]).

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.

So ordered.

By the Court (Meade, Blake & 

Desmond, JJ.7),

Clerk

Entered: September 17, 2024.

7 The panelists are listed in order of seniority.