Commonwealth v. Bell
Commonwealth v. Bell
Opinion of the Court
The Commonwealth appeals from an order of a Boston Municipal Court judge allowing the defendant’s motion to dismiss a criminal complaint charging him with intimidation of a witness. See G. L. c. 268, § 13B. For the reasons that follow, we reverse.
1. Background. The application for the complaint against the defendant alleged as follows:
“On June 22, 2011, at approximately 4:50pm, [the defendant] leaned behind his attorney, looked in the direction of [the victim] and stated, ‘I’ll see you on the street.’ [The defendant] made this statement in Courtroom 19 at*62 the Boston Municipal Courthouse, Central Division, after he had been found guilty of Open and Gross Lewdness and Lascivious Behavior, but before [the trial judge] had sentenced him in the case.”
On July 21, 2011, a complaint issued for intimidation of a witness. Following his arraignment, the defendant moved to dismiss the complaint against him, asserting that the complaint failed to set forth probable cause. See Mass.R.Crim.P. 3(g)(2), as appearing in 442 Mass. 1502 (2004). After a nonevidentiary hearing, the motion judge concluded that the application established probable cause for threats but not for intimidation of a witness. The motion judge reasoned that the application was deficient because it failed to demonstrate probable cause that the defendant possessed the requisite intent required for witness intimidation.
2. Discussion. “After the issuance of a [criminal] complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate (or judge), see Commonwealth v. McCarthy, 385 Mass. 160 (1982), for a violation of the integrity of the proceeding, see Commonwealth v. O’Dell, 392 Mass. 445 (1984), or for any other challenge to the validity of the complaint.” Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). Unless the Commonwealth consents, a motion to dismiss a criminal complaint for lack of probable cause is decided from the four comers of the complaint application, without evidentiary hearing. See Commonwealth v. Black, 403 Mass. 675, 677-678 (1989); Commonwealth v. DiBennadetto, supra.
Here, the sole issue before the motion judge was whether the issuing magistrate had probable cause to believe that the defendant’s acts, viewed in context, supported issuance of a complaint for intimidation of a witness. The application did just that. The
In sum, the motion judge erred in dismissing the complaint against the defendant. A judge considering a motion to dismiss should not confuse the question of probable cause to arrest with questions more properly resolved by the fact finder at trial. See Commonwealth v. Riley, 73 Mass. App. Ct. 721, 730-731 (2009). Even at trial, “[m] alters of intent are rarely proved by direct evidence and are most often proved circumstantially.” Id. at 730. Just as the “grand jury is not the appropriate forum for reconciling subtle gradations of offenses,” neither is the application in support of a criminal complaint the proper forum for resolving such refinements. Commonwealth v. Goldstein, 54 Mass. App. Ct. 863, 868 (2002). See Commonwealth v. Simpson, 54 Mass. App. Ct. 477, 480-481 (2002).
Order allowing motion to dismiss complaint reversed.
General Laws c. 268, § 13B, as amended through St. 2010, c. 256, § 120, provides in pertinent part as follows:
“Whoever, directly or indirectly, willfully . . . threatens . . . (i) a witness or potential witness at any stage of a . . . criminal proceeding of any type . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such a proceeding shall be punished . . . .”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.