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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").