Commonwealth v. Jose Gonzalez.

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

25-P-211

COMMONWEALTH

vs.

JOSE GONZALEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 4, 2023, the defendant was charged by complaint

in District Court with assault by means of a dangerous weapon,

in violation of G. L. c. 265, § 15B (b). On March 22, 2024,

defense counsel filed an assented-to motion to dismiss based on

the assistant district attorney's erroneous belief that the

victim did not want to testify. That motion was allowed the

same day. Less than one month later, a different assistant

district attorney sought a second complaint,1 which charged the

defendant with the same crime. On July 29, 2024, the defendant

filed a second motion to dismiss. On November 1, 2024, after a

non-evidentiary hearing, a District Court judge (motion judge)

1 The first assistant district attorney had retired.
dismissed the complaint with prejudice. The Commonwealth

appeals that dismissal, and we reverse.

"Article 30 prohibits one branch of the government from

interfering with the functions of another." Commonwealth v.

Rosa, 491 Mass. 369, 372 (2023), citing K.J. v. Superintendent

of Bridgewater State Hosp., 488 Mass. 362, 368 (2021). "[W]hen

a judge, without any legal basis[,] preempts the Commonwealth's

presentation of its case[,] that action effectively usurps the

decision-making authority constitutionally allocated to the

executive branch." Rosa, supra, quoting Commonwealth v. Cheney,

440 Mass. 568, 574 (2003). See art. 30 of the Declaration of

Rights of the Massachusetts Constitution ("the judicial

[department] shall never exercise the legislative and executive

powers"); Commonwealth v. Gordon, 410 Mass. 498, 501 (1991)

(judge may not usurp decision-making authority constitutionally

allocated to executive branch).

When a judge dismisses a complaint with prejudice, the

Commonwealth is precluded from instituting the same charges

against the defendant. Rosa, 491 Mass. at 373. Dismissing a

complaint in this manner "raises concerns as to whether the

court is infringing on the power of the executive branch." Id.

See Cheney, 440 Mass. at 574. Accordingly, "a court's inherent

authority to dismiss [a complaint] with prejudice may be

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exercised 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.'" Rosa, supra, quoting Bridgeman v. District Attorney

for the Suffolk Dist., 476 Mass. 298, 316 (2017). "[D]ismissal

with prejudice 'is a remedy of last resort.'" Bridgeman, 476

Mass. at 316, quoting Commonwealth v. Cronk, 396 Mass. 194, 198

(1985). See Commonwealth v. Mason, 453 Mass. 873, 877 (2009)

(dismissal "precludes a public trial" [citation omitted]).

Here, the motion judge found that there was no egregious

prosecutorial misconduct in the delayed disclosure to defense

counsel of the video recording depicting the crime, which had

been provided by the victim to the police.2 The motion judge

found that the first assistant district attorney misunderstood

2 The video recording was not made an exhibit at the motion
to dismiss hearing. Despite this, the motion judge made
findings of fact based on defense counsel's description of its
contents in her affidavit, and the judge's assertion was that
the prosecutor did not challenge that description. Putting
aside that the prosecutor present at the time was filling in for
his colleague assigned to the case, and that the record does not
reflect that the substitute prosecutor had ever seen the video
recording, ascertaining the actual contents of the video
recording is not necessary to our resolution of the matter
before us. With that said, the better practice would have been
to make the video recording an exhibit, and for the judge to
view it before making findings as to its content.

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the victim's desire to participate. He further found that the

successor prosecutor promptly sought a new complaint on the same

allegations after learning of the misunderstanding and promptly

produced the key discovery, albeit months after her predecessor

should have produced it. Noting the unusual circumstances of

this case, the motion judge added that the second prosecutor

could have availed herself of other means to bring the case back

aside from seeking a second complaint,3 but her choice not to was

neither intentional nor egregious misconduct, and not a

sufficient basis to dismiss the case with prejudice. These

findings are all supported by the record, and the defendant does

not argue otherwise.

The motion judge did, however, find that the defendant has

been prejudiced as to his ability to defend himself at trial,

specifically holding that he has been "substantially harmed and

there is no adequate remedy other than dismissal with

prejudice." In particular, the motion judge noted that the

eight-month delay in providing the victim's video recording to

the defense was not itself per se prejudicial. Instead, he

concluded that the delay prevented the defendant from

discovering the precise time and location of the incident in

3 See footnote 6 infra.

4
October or November of 2023, as well as denying him the

opportunity to preserve surveillance footage held by a nearby

business before it was lost.4 We disagree.5

As an initial matter, we note that the lost surveillance

video footage was never in the possession, custody, or control

of the police or the district attorney's office. In that

posture, the Commonwealth did not have a duty to preserve it.

See Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 19-21

(1993). In the absence of willful misconduct on the part of the

4 The judge also concluded that the delay "impeded the
defendant from timely identifying and locating a third-party
percipient witness" on the video recording and that the delay in
identification of that witness was further compounded by "the
transient nature of many of Holyoke's housing-insecure
residents." For the same reasons discussed infra, we disagree.

5 We reject the defendant's contention that the Commonwealth
is precluded from claiming a lack of prejudice where it has not
made precisely the same claims at the hearing as it does now on
appeal. First, had the prosecutor conceded that the defendant
was prejudiced, we would agree that the Commonwealth would be
barred from arguing otherwise on appeal. See Commonwealth v.
Accaputo, 380 Mass. 435, 444 n.11 (1980). However, at the
motion to dismiss hearing, the prosecutor expressly, albeit
without the same detail found on appeal, argued the defendant
had suffered no prejudice. Second, the defendant's reliance on
Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006), is
misplaced. In that case, unlike here, the Commonwealth
attempted to justify the actions of the police based on a theory
that was raised for the first time on appeal, which the court
prohibited. Finally, because the motion judge's allowance of
the motion to dismiss was premised on a finding of prejudice,
the Commonwealth is free to challenge that determination on
appeal. See Commonwealth v. Page, 105 Mass. App. Ct. 532, 537
(2025).

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authorities, as the judge found here, the defendant "has the

initial burden . . . to establish a reasonable possibility,

based on concrete evidence rather than a fertile imagination,

that access to the [evidence] would have produced evidence

favorable to his cause" (quotations and citation omitted).

Commonwealth v. Cintron, 438 Mass. 779, 784 (2003). See

Commonwealth v. Lam Hue To, 391 Mass. 301, 314 (1984). If the

defendant meets his initial burden, the court "must proceed to

balance the Commonwealth's culpability, the materiality of the

evidence, and the prejudice to the defendant in order to

determine whether the defendant is entitled to relief."

Commonwealth v. Williams, 455 Mass. 706, 718 (2010).

Here, the defendant's speculative claim that the lost

evidence would have been exculpatory is insufficient. It is not

the equivalent of "concrete evidence." Commonwealth v. Meas,

467 Mass. 434, 448 (2014). As the motion judge noted, "it is

possible" that neither the lost surveillance "footage nor the

unidentified third-party witness would have yielded fruit in

terms of providing exculpatory evidence to the defense." But

more importantly, we do not accept the motion judge's conclusion

that the delay in this case prevented the defense from

canvassing the area near the location of the assault to make a

timelier discovery of potential surveillance footage or

6
witnesses. As the Commonwealth notes, the police report of the

incident provided the address to where the police responded on

October 2, 2023, and also recited the victim's report as to

where the incident occurred. The defendant had counsel on the

day that the complaint issued, October 4, 2023, and a motion for

funds for an investigator was allowed on October 19, 2023. The

defendant did not need the surveillance footage to embark on a

timely investigation of the matter.

The motion judge also held that the key source of prejudice

resulted from the delay in holding a hearing pursuant to

Commonwealth v. Dougan, 377 Mass. 303, 316-317 (1979), to

explore the circumstances of the victim's out-of-court

identification of the defendant. As the motion judge properly

found, the delay in holding the Dougan hearing was occasioned by

the assented-to dismissal of the first complaint. As he also

held, however, this dismissal was not the product of

prosecutorial misconduct, but rather because of a simple

misunderstanding. When the Dougan hearing was held, after the

issuance of the second complaint, the victim provided the

details and circumstances under which he identified the

defendant, and how the victim was familiar with the defendant

prior to the incident. The hearing also revealed that the

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police did not direct or make suggestive the victim's

identification.

The cases relied on by the motion judge and the defendant

do not properly support the dismissal of the complaint with

prejudice. In Commonwealth v. Gomes, 470 Mass. 352, 357 n.11

(2015), the court addressed how memories can fade over time, and

in Commonwealth v. Crayton, 470 Mass. 228, 239-240 (2014), the

court noted that a witness's level of confidence in an

identification is not a reliable predictor of the accuracy of

the identification, and the dangers of a first-time in-court

identification.

Neither of these cases inform the circumstances of this

case. First, if the victim here identifies the defendant in

court at trial, it will not be a first-time identification to be

treated as an in-court showup. See Crayton, 470 Mass. at 238-

244. Second, although it is true that memories often fade over

time, here the victim provided more details at the Dougan

hearing relative to his identification than he had previously

provided to the police. This could be explained by any number

of reasons that could properly be explored at trial. In any

event, degradation or alteration of the victim's memory was not

enough to support dismissal of the charges with prejudice. The

Legislature has addressed that concern by setting forth a six-

8
year statute of limitations for the crime with which the

defendant was charged, see G. L. c. 277, § 63, and a judge may

not shorten that period by dismissing a case with prejudice.

See Commonwealth v. McLaughlin, 431 Mass. 241, 250 (2000)

("[t]he appropriate statute of limitations is a matter for the

Legislature"). The defendant has failed to establish his

initial burden, and the motion judge's order dismissing the

complaint with prejudice "constituted an unwarranted intrusion

upon the powers granted exclusively to the executive branch

under art. 30." Rosa, 491 Mass. at 376.6

Order allowing motion to
dismiss reversed. A new
order shall enter denying
the motion.

By the Court (Meade,
Ditkoff & Toone, JJ.7),

Clerk

Entered: December 10, 2025.

6 Finally, the parties differ over the propriety of the
motion judge's determination that it was error to issue the
second complaint without notice to the defendant and an
opportunity to be heard. However, the motion judge expressly
declined to make this a supporting basis of his decision to
dismiss the complaint with prejudice. In that posture, any
resolution of the issue would be dicta, and we decline to
address the matter. See Crocker v. Justices of the Superior
Court, 208 Mass. 162, 173 (1911).

7 The panelists are listed in order of seniority.

9