Opinion
15-P-471
05-02-2016
COMMONWEALTH v. PARISSE S. ODOM.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from two orders of a judge of the Boston Municipal Court, (i) dismissing a charge of stalking, under G. L. c. 265, § 43(a), for lack of probable cause, and (ii) reducing a charge of assault and battery by means of a dangerous weapon, under G. L. c. 265, § 15A, to simple assault and battery. We reverse.
1. Stalking. The police reports supporting the criminal complaint described an incident in which the defendant "slammed" the victim against the building in which she resided, choked her neck, threatened to kill her, and ripped an earring from her right ear. Later the same day, police responded to a second call, at which time the victim reported that the defendant had called her "over twenty times" and stated, inter alia, that he had a gun. Contrary to the defendant's argument that the evidence supporting the complaint reflected at most two incidents on a single day, the persistent and numerous telephone calls following the initial assault and battery are sufficient to support probable cause of the requisite multiple acts of harassment for a charge of stalking. See, e.g., Commonwealth v. Jenkins, 47 Mass. App. Ct. 286, 291 (1999); Commonwealth v. Julien, 59 Mass. App. Ct. 679, 684-685 (2003).
2. Assault and battery by means of a dangerous weapon. In reducing the charge of assault and battery by means of a dangerous weapon to a charge of simple assault and battery, the judge commented, "[t]hat just smacks of overcharging." It is unclear whether the judge viewed the evidence as insufficient to furnish probable cause that the defendant's act of slamming the victim against the building used the building as a dangerous weapon, or whether the judge thought the evidence, though sufficient, did not warrant the more serious charge. If the former, the ruling was plain error of law, as ordinary objects may serve as dangerous weapons depending on the manner in which they are used, and the act of slamming the victim against the building may constitute use of the building to aggravate the battery. See, e.g., Commonwealth v. Sexton, 425 Mass. 146, 150-151 (1997) (concrete pavement); Commonwealth v. McIntosh, 56 Mass. App. Ct. 827, 830-832 (2002) (window pane). If the latter, the ruling was in excess of the judge's constitutional authority. See Commonwealth v. Cheney, 440 Mass. 568, 574 (2003). In either event, the ruling cannot stand.
Our analysis of both issues in this case breaks no new ground. Indeed, we have admonished the same judge for similar errors on numerous occasions, in both published and unpublished opinions. See, e.g., Commonwealth v. Bell, 83 Mass. App. Ct. 61 (2013); Commonwealth v. Martz, 84 Mass. App. Ct. 1117 (2013); Commonwealth v. Hernandez, 86 Mass. App. Ct. 1121 (2014); Commonwealth v. Hardin, 88 Mass. App. Ct. 681 (2015), further appellate review granted, 473 Mass. 1110 (2016); Commonwealth v. Gibbons, 89 Mass. App. Ct. 1108 (2016). We have not attempted an exhaustive inventory of other examples. It is sufficient to observe that the continued dismissal of charges supported by probable cause, particularly after correction in earlier cases, reflects a troubling disregard for the responsibilities of judicial office.
The orders dismissing the charge of stalking, and reducing the charge of assault and battery by means of a dangerous weapon to simple assault and battery, are reversed, and the complaint as to both charges is reinstated.
So ordered.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 2, 2016.