12 Mass. App. Ct. 338 | Mass. App. Ct. | 1981
Under Mass.R.Crim.P. 4(b), 378 Mass. 849 (1979), a complaint may be subscribed to by “the arresting officer, the police chief, or any police officer within the jurisdiction of a crime, a prosecutor, or a private person.” It is the position of the defendant that the procedures which govern the crime of threatening (G. L. c. 275, §§ 2 through 6) are distinct and require that the person who subscribes to the complaint be either the object of the threat or one who witnessed the threat. A District Court judge adopted that position and, upon motion, dismissed the complaint. The Commonwealth has appealed pursuant to Mass.R.Crim.P. 15(a), 378 Mass. 882 (1979). We reverse.
Application for a complaint that the defendant threatened him with bodily harm was made under pains and penalties of perjury by John Devaney, a police officer. The
Indeed, the Reporter of the Rules of Criminal Procedure notes, with respect to rule 4(b), that the practice of having a single officer obtain complaints for offenses of which he has no first-hand knowledge is “not only appropriate, but a sound administrative procedure.” (See to the same effect, District Court Standards of Judicial Practice, The Complaint Procedure § 3:23 [1975] [hereinafter cited as “The Complaint Procedure”].) The Reporter goes on to note that “Rule 4(b) authorizes the signing of the complaint by persons other than the arresting officer in order to avoid requiring the officer’s presence at any time prior to the probable cause hearing or trial. The subdivision [of rule 4] is grounded in the desire to avoid removing an officer from his regular work shift to execute the mere formality of personally signing the complaint.” The statutory underpinning for Mass.R.Grim.P. 4(b) appears in G. L. c. 276, § 22, as amended by St. 1979, c. 344, § 20, which added a reference to the Massachusetts Rules of Criminal Procedure.
In arguing that rule 4(b) does not apply to the offense of threatening to commit a crime against the person or property of another, the defendant emphasizes the absence of a similar conforming amendment to G. L. c. 275, § 2. Pressing this point, the defendant suggests as a reason for a different complaint procedure in the case of threats, as contrasted with other crimes, that the threat statute deals with a breach of the peace yet to occur;
Had the Legislature intended that the crime of threatening be the subject of altogether distinct procedures, we would expect that intention to be expressed more plainly. Except for the reference to the rules of criminal procedure, little differentiates G. L. c. 275, § 2, from G. L. c. 276, § 22, as may be seen by setting out one text after the other:
G. L. c. 275, § 2: “If complaint is made to any such court or justice that a person has threatened to commit a crime against the person or property of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant.”
G. L. c. 276, § 22: “Upon complaint made to any justice that a crime has been committed, he shall examine on oath the complainant and any witnesses produced by him, reduce the complaint to writing, and cause it to be subscribed by the complainant, and, if it appears that a crime has been committed, shall issue a summons or warrant in compliance with the provisions of the Massachusetts Rules of Criminal Procedure.”
On comparison, it becomes apparent that the reference to the rules of criminal procedure modifies not the provision relating to the complaint procedure, but that which relates
More significant, the defendant’s approach to G. L. c. 275, § 2, ignores the function of the application for the complaint, as distinguished from the complaint itself. That application, it will be recalled, was made in this case under pains and penalties of perjury by the arresting officer, against whom the alleged threat was made. In this regard, the arresting officer followed customary procedures. See The Complaint Procedure §§ 2:01-3:04, which covers the processing of applications for complaints, where the accused has been arrested, and applications for issuance of process, where the accused has not been arrested. A complaint of threatening under G. L. c. 275, §§ 2-4, may give rise to a summons, rather than an arrest, notwithstanding language in § 3 which might indicate the contrary. See De-Loach v. Tracy, 352 Mass. 135, 137 (1967). The application for complaint is the document “used to capture basic information about a case.” The Complaint Procedure §1:01. It may be signed by the arresting officer or by a lay person. The complaint which follows represents merely the formal written charge of crime to which the accused is to answer. Id. and commentary to § 1:01. A clerk-magistrate or judge who is called upon to issue a complaint, therefore, is not bereft of first-hand information.
What appears in G. L. c. 275, § 6, is not inconsistent with our view that the officer who signs the complaint need not have first-hand knowledge of the underlying events. By its terms, § 6, the full text of which appears in the mar-
Order dismissing complaint reversed.
The nature of the crime described by G. L. c. 275, § 2, and the constitutionality of the statute were discussed in Robinson v. Bradley, 300 F.Supp. 665, 668 (D. Mass. 1969). A threat is an “expression of an intention to inflict evil, injury, or damage on another” coupled with ability to make good on the intention expressed, “in circumstances which would
The procedures governing summonses and warrants appear in Mass. R.Crim.P. 6, 378 Mass. 852 (1979).
G. L. c. 275, § 6. “If, upon such examination, it is found that there is not just cause to fear that such crime will be committed by the person complained of, he shall be forthwith discharged; and if it is found that the complaint is unfounded, frivolous or malicious, the complainant may be ordered to pay the expenses of prosecution.”