Commonwealth v. H.I.

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-96

COMMONWEALTH

vs.

H.I.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner appeals from a District Court judge's order

denying his petition for expungement. See G. L. c. 276, § 100K.

On appeal, the petitioner maintains that expungement was

warranted because he sufficiently demonstrated that the record

in the case "was created as a result of . . . demonstrable

errors by law enforcement," and "demonstrable fraud perpetrated

upon the court." G. L. c. 276, § 100K (a) (3), (6). He also

claims that expungement "is in the best interests of justice."

G. L. c. 276, § 100K (b). We affirm.

Background. The petitioner was charged with assault and

battery on a family or household member after his wife called

the police to their home and arriving responding officers

1 A pseudonym.
"hear[d] a female screaming" and, through a window, saw the

petitioner "tightly grasping [his wife's] arm walking her toward

the door." The petitioner's wife told one of the officers that

she and the petitioner had been arguing over the petitioner

placing cameras around their home, and the officer observed a

bruise and scratches on the wife's arm. After he was arrested

and charged, the petitioner filed a notice that he would claim

self-defense. The petitioner also produced video footage that

he maintained revealed his wife as the initial aggressor in the

couple's physical altercations. The videos were from numerous

dates but did not include footage from the night of his arrest.

The petitioner's wife would not consult with counsel

regarding whether she had a privilege against self-incrimination

under the Fifth Amendment to the United States Constitution and

then failed to appear in court. The Commonwealth subsequently

filed a nolle prosequi, citing the interests of justice.

The petitioner filed a petition to expunge the charge (or,

alternatively, to seal the record), alleging errors by law

enforcement or fraud perpetrated upon the court. With his

petition, the petitioner filed (1) an affidavit recounting his

version of events and (2) video clips that -- he

maintained -- supported both his claim that the police failed to

investigate the possibility that his wife was the aggressor, and

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his claim that his wife had perpetrated a fraud on the court by

calling the police on the night of his arrest.

After a hearing on the petition, at which the Commonwealth

did not appear, the judge denied the petition to expunge and

granted the petition to seal.

Discussion. A judge may order the expungement of a

criminal record if the judge finds, based on clear and

convincing evidence, that the record was created because of

"demonstrable errors by law enforcement" or "demonstrable fraud

perpetrated upon the court." G. L. c. 276, § 100K (a) (3), (6).

"Only after making such findings may a judge consider whether

expungement would be in the best interests of justice"

(quotation and citation omitted). Commonwealth v. K.W., 490

Mass. 619, 625 (2022). We review the judge's order for an abuse

of discretion. See Commissioner of Probation v. Adams, 65 Mass.

App. Ct. 725, 737 (2006). "[A] judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

made 'a clear error of judgment in weighing' the factors

relevant to the decision, . . . such that the decision falls

outside the range of reasonable alternatives." L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto

v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

The petitioner claims that because the officers knew about

the presence of cameras, they should have sought out and

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reviewed the footage -- which he posits was potentially

exonerating -- before arresting him, and that not doing so was

demonstrable error. See G. L. c. 276, § 100K (a) (3).

We decline to adopt the petitioner's reasoning. The

officers had probable cause to arrest the petitioner based on

what they saw and heard. Contemporaneous video footage that

showed his wife being physically aggressive -- if, indeed, the

footage showed that -- would not have changed that. See

Commonwealth v. Landry, 438 Mass. 206, 210 (2002) ("[P]robable

cause exists where, at the moment of arrest, the facts and

circumstances within the knowledge of the police are enough to

warrant a prudent person in believing that the individual

arrested has committed or was committing an offense" [citation

omitted]). There was no abuse of discretion in the judge's

determination that neither the petitioner's arrest nor the

creation of the record in this case was caused by law

enforcement error. See Adams, 65 Mass. App. Ct. at 737.

The petitioner further maintains that his wife's calling

the police amounted to fraud perpetrated on the court.

"A 'fraud on the court' occurs where . . . a party has
sentiently set in motion some unconscionable scheme
calculated to interfere with the judicial system's ability
impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the
presentation of the opposing party's claim or defense."

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Adams, 65 Mass. App. Ct. at 729-730, quoting Rockdale Mgmt. Co.

v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994). We have

distinguished "between a false allegation, on the one hand, and

a deliberate scheme, on the other, typically involving others in

the court system, combined with a larger pattern of harassment,

that has been held to constitute fraud on the court." M.C.D. v.

D.E.D., 90 Mass. App. Ct. 337, 342 (2016).

The petitioner claims that, although his wife only once

involved the police or court system, that call combined with her

alleged history of abuse amounts to a pattern of harassment.

The petitioner further maintains that the hearing judge so

found. We are not persuaded. As noted above, and contrary to

the notion that the wife's abuse allegation was false,

responding officers witnessed the petitioner roughly handling

his wife, and neither the petitioner's affidavit nor the videos,

which we have reviewed, contradict that evidence. The

petitioner maintains that, at the expungement petition hearing,

the judge credited the entirety of the petitioner's written

affidavit as true.2 We do not read the transcript this way.

The petitioner maintains that if we do not read the

transcript as he asserts, we must remand the matter for written

2 This argument is based on a statement the judge made during the
hearing on the petition when, in response to the defense
attorney's argument, the judge said, "[e]ven if I accept
everything that you're saying, which I do. . . ."

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findings under K.W., 490 Mass. at 632, which, he claims,

requires written findings in this context. We do not understand

that case to require written findings when a judge denies a

petition to expunge pursuant to G. L. c. 276, § 100K (a), which

does not involve the same level of discretion as a denial

pursuant to § 100K (b). See K.W., supra at 632 (concluding, in

case in which judge denied expungement based on best interests

of justice pursuant to § 100K [b], that judges must enter

written findings on orders denying expungement).

Even if the record showed that the petitioner's wife

intended to make a false allegation, the judge did not abuse his

discretion by not finding that those actions, under these

circumstances, amounted to an "unconscionable scheme calculated

to interfere with the judicial system's ability impartially to

adjudicate a matter" (citation omitted). Adams, 65 Mass. App.

Ct. at 730.

We also have before us the petitioner's motion to "impound

this appeal in its entirety," referred to this panel by the

single justice. The motion is allowed. Counsel is to file,

within two weeks of the issuance of the rescript, a proposed

order as required by Rules 2 (a) and 8 of the Uniform Rules on

Impoundment Procedure, Trial Court Rule VIII (2015), for

consideration by the panel. See S.J.C. Rule 1:15 (b), as

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appearing in 472 Mass. 1301 (2015) (requests for impoundment in

Appeals Court governed by provisions of Trial Court Rule VIII).

Conclusion. The hearing judge did not abuse his discretion

by denying the petition for expungement pursuant to G. L.

c. 276, § 100K (a). The order is affirmed.

So ordered.

By the Court (Rubin, Singh &
Hershfang, JJ.3),

Assistant Clerk

Entered: February 1, 2024.

3 The panelists are listed in order of seniority.

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