Commonwealth v. Christopher Kennelly.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1377

COMMONWEALTH

vs.

CHRISTOPHER KENNELLY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged with assault and battery on his

brother. At a second trial date, the victim did not appear, and

the case was dismissed without prejudice. On appeal, the

defendant claims the matter should have been dismissed with

prejudice. We affirm.

A dismissal with prejudice "precludes a public trial and

terminates criminal proceedings," which raises separation of

powers concerns (citation omitted). Commonwealth v. Rosa, 491

Mass. 369, 373 (2023). Because of this, a judge has the

authority to dismiss a complaint with prejudice only where there

is either a "'showing of irremediable harm to the defendant's

opportunity to obtain a fair trial' or 'prosecutorial misconduct
that is egregious, deliberate, and intentional, or that results

in a violation of constitutional rights.'" Id., quoting

Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass.

298, 316 (2017). "Absent egregious misconduct or at least a

serious threat of prejudice, the remedy of dismissal infringes

too severely on the public interest in bringing guilty persons

to justice" (citation omitted). Brangan v. Commonwealth, 478

Mass. 361, 366 (2017).

Here, there was no showing of prosecutorial misconduct, let

alone egregious misconduct, which would justify a dismissal with

prejudice. Instead, the defendant claims there was insufficient

evidence to prosecute the case. However, that claim must be

brought in a motion to dismiss. See Commonwealth v.

DiBennadetto, 436 Mass. 310, 313 (2002). The judge did not

abuse her discretion by dismissing the complaint without

prejudice.

Judgment affirmed.

By the Court (Meade,
Hershfang & Toone, JJ.1),

Clerk

Entered: October 28, 2024.

1 The panelists are listed in order of seniority.

2