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07/28/77 THOMAS F. BURKE v. COMMONWEALTH

July 28, 1977

THOMAS F. BURKE
v.
COMMONWEALTH



Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 30, 1976. The case was reserved and reported by Reardon, J.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Probable cause hearing, Grand jury proceedings.

The opinion of the court was delivered by: Abrams

It was permissible for a grand jury to indict a defendant after a finding of no probable cause by a District Court Judge even though the indictment was based on the same evidence that was presented to the District Court Judge. [159-162]

Thomas F. Burke (hereinafter called the defendant), asks this court to exercise its extraordinary powers under G. L. c. 211, § 3. The case was originally submitted on the basis of pleadings and a statement of agreed facts to a single Justice of this court who reserved and reported it without decision.

We review the facts as agreed to by the parties. On November 16, 1974, the defendant was arrested on charges arising out of an automobile accident. On April 3 and 4, 1975, *fn1 he was tried in the District Court of Lowell on two misdemeanor charges, operating a motor vehicle so as to endanger, G. L. c. 90, § 24 (2) (a), and operating a motor vehicle while under the influence of an intoxicating beverage, G. L. c. 90, § 24 (1) (a). At the same time, a probable cause hearing was held on a charge of manslaughter, G. L. c. 265, § 13. See G. L. c. 90, § 24G, inserted by St. 1976, c. 227.

On April 7, 1975, the defendant was found guilty of operating so as to endanger and was found not guilty of operating under the influence of an intoxicating beverage. No probable cause was found on the manslaughter charge.

On May 7, 1975, the identical evidence proffered in the District Court probable cause hearing was presented to the Middlesex County grand jury, and the defendant was indicted for manslaughter on that day.

On June 17, 1975, the defendant filed a motion in the Superior Court to dismiss the indictment. After a November 18, 1975, hearing, the motion was referred to a trial Judge; the motion was denied. The instant action was commenced on April 30, 1976.

As a preliminary matter, we consider the contention raised by the Commonwealth that it would be inappropriate for us to use at this time our extraordinary powers under G. L. c. 211, § 3. The Commonwealth is correct in its assertion that such power should be utilized sparingly, and that interlocutory review should be granted only in extraordinary circumstances. See, e.g., Whitmarsh v. Commonwealth, 366 Mass. 212 (1974), appeal dismissed for want of jurisdiction, 421 U.S. 957 (1975). However, where, as here, a single Justice of this court reserves and reports an interlocutory matter to this court, we grant the litigant full appellate review. Cappadona v. Riverside 400 Function Room, Inc., 372 Mass. 167 (1977). Kargman v. Superior Court, 371 Mass. 324, 330 (1976). Barber v. Commonwealth, 353 Mass. 236 (1967). We therefore proceed to examine the merits of the defendant's claim.

The defendant argues that, on a finding of no probable cause by a Judge of the District Court, the Commonwealth should be barred from thereafter obtaining an indictment relating to the same occurrence unless it presents new or different evidence before the grand jury. Because the evidence before the grand jury in the instant case was identical to that heard by the District Court Judge, the defendant reasons that the present manslaughter indictment should be dismissed.

This court has consistently held that a District Court determination of no probable cause "is not conclusive as to the guilt or innocence of a party charged, and is not a bar to a subsequent indictment for the same offence." Commonwealth v. Hamilton, 129 Mass. 479, 481 (1880). See Myers v. Commonwealth, 363 Mass. 843, 857 n.16 (1973); Commonwealth v. Britt, 362 Mass. 325, 330 (1972); Commonwealth v. Mahoney, 331 Mass. 510, 512 (1954); Commonwealth v. Sullivan, 156 Mass. 487, 489 (1892). The purpose of a probable cause hearing in a District Court is "to screen out . . . those cases that should not go to trial," and an order binding over a defendant for trial involves a finding "(1) 'that a crime has been committed' and (2) 'that there is probable cause to believe the prisoner guilty.' G. L. c. 276, § 42" (emphasis in original). Myers v. Commonwealth, supra at 847. It is true that the probable cause standard is identical in a grand jury proceeding, and "the return of an indictment is itself a determination of probable cause and renders unnecessary a preliminary hearing." Lataille v. District Court of E. Hampden, 366 Mass. 525, 531 (1974). It does not follow, however, that the finding of the District Court judge of no probable cause is a final determination of the issue.

One reason for any apparent anomaly is that the Legislature has seen fit to grant to the Commonwealth the right of appeal where serious felony cases are dismissed without trial. See G. L. c. 278, ยง 28E. Where, as here, no appeal lies from the District Court decision, the grand jury is the only mechanism to ensure that the criminal proceeding has been terminated correctly. Were we to adopt the defendant's position, the district attorney would be unable either to prosecute the crime or to obtain appellate review of what, in his opinion, was a good faith but ...


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