Opinion
No. 12–P–760.
2013-06-19
COMMONWEALTH v. William B. BENNETT.
Id. at 63.
By the Court (BERRY, KATZMANN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Boston Municipal Court dismissed a complaint charging the defendant with threatening to commit a crime, in violation of G.L. c. 275, § 2. The Commonwealth appealed pursuant to Mass.R.Crim.P. 15(a)(1), as appearing in 422 Mass. 1501 (1996). We reverse.
Discussion. A dismissal based on a “lack of probable cause is decided from the four corners of the complaint application, without evidentiary hearing.” Commonwealth v. Bell, 83 Mass.App.Ct. 61, 62 (2013). In Bell, we explained that:
“The standard of probable cause to authorize a criminal complaint is the same as the standard that governs the grand jury's decision to indict.... The complaint application, like a grand jury presentment, must contain sufficient evidence to establish the identity of the accused and probable cause to arrest him.... All that is required is ‘reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed ... an offense.’ ... The requirement of sufficient evidence to establish the identity of the accused and probable cause to arrest him is considerably less exacting than the requirement that a judge must apply at trial or at a probable cause hearing under G.L. c. 276, § 38. Indeed, ‘[p]robable cause [to arrest] does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction’ “ (internal citations omitted).
Id. at 63.
The Commonwealth here presented sufficient evidence to support the complaint charging the defendant with threatening to commit a crime. “The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat.” Commonwealth v. Milo M., 433 Mass. 149, 151 (2001), quoting from Commonwealth v. Sholley, 432 Mass. 721, 725 (2000). “In analyzing a putative threat, we eschew a technical parsing of the words used and instead consider the entire context in which a statement is made, including the defendant's actions and demeanor at the time, and prior communications between the defendant and the recipient.” Commonwealth v. Meier, 56 Mass.App.Ct. 278, 280 (2002), quoting from Commonwealth v. Troy T., 54 Mass.App.Ct. 520, 528 (2002).
In its application in support of the complaint, the Commonwealth submitted the written police narrative that set forth that the defendant, who at the time was an emergency psychiatric patient at the Beth Israel Deaconess Medical Center, made threats towards Detective Sergeant Irvine and Detective Anzalone. Three days earlier, the Brookline police had transported the defendant to Beth Israel after removing him from the Arbor–HRI hospital (a psychiatric facility) for attempting to throw a television at a nurse. While outside the defendant's hospital room, the two officers overhead the defendant state that he wanted to remove their guns and shoot them. Sergeant Irvine, who had been investigating an outstanding warrant for the defendant's arrest and had learned of the defendant's past criminal history, which included violent acts towards police officers, explained in his narrative in support of the criminal complaint that the defendant's comments led him to fear for his and his fellow officer's safety.
In sum, the Commonwealth presented sufficient evidence that the defendant threatened the officers and, when considered in light of the defendant's criminal history, placed the officers in reasonable apprehension for their safety, to establish probable cause to authorize the criminal complaint.
See Commonwealth v. Meier, 56 Mass.App.Ct. at 281.
As the Commonwealth notes, the question of the admissibility of the statements overheard by the officers was a matter to be raised in a motion to suppress. Furthermore, on remand, should the defendant proceed to trial, he can argue to the fact finder, inter alia, that the Commonwealth failed to meet its burden beyond a reasonable doubt that his words indicated his intent to do harm.
Order dismissing complaint reversed.