Commonwealth v. Perella

464 Mass. 274

982 N.E.2d 526

COMMONWEALTH

v.Joseph PERELLA.

SJC–11083.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 1, 2012.

Decided Feb. 1, 2013.

Gregory P. Connor, Assistant District Attorney, for the Commonwealth.

Patrick M. Troy, Boston (Dennis M. Toomey with him), for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

On January 19, 2010, a criminal complaint was filed in the District Court charging the defendant with the commission of an armed robbery that took place on January 20, 2000. On May 12, 2010, more than ten years after the date of the armed robbery, a grand jury returned an indictment against the defendant for that offense. A judge of the Superior Court allowed the defendant's motion to dismiss on the ground that the case was not properly initiated by indictment until after the statute of limitations had run.

This case requires us to decide whether the filing of a criminal complaint tolls the statute of limitations set forth in G.L. c. 277, § 63 (§ 63), which states that “[a]n indictment for [armed robbery under G.L. c. 265, § 17] ... may be found and filed within [ten] years after the date of commission of such offense.” We conclude that § 63 requires the filing of an indictment within the ten-year limitations period for armed robbery, G.L. c. 265, § 17, and that the filing of a complaint within the limitations period, and the return of an indictment outside of that period, does not constitute timely commencement of the criminal proceeding. We therefore affirm the order dismissing the indictment.

Background and prior proceedings. We summarize background information that is reflected in the briefs of both parties.¹ On January 20, 2000, a man entered the Randolph Savings Bank in Stoughton, wearing a winter hat, a scarf that covered his face, and sunglasses. The man passed to a teller a note that “request[ed]” money and claimed the man had a weapon. After the teller handed the man some money, the man left the bank. A civilian witness took note of the registration number of the vehicle in which the man drove away. Stoughton police later located an automobile with that registration number in another town. Inside the vehicle, they found a winter hat. Police held the hat in storage until November, 2007, when they requested that it be tested for the presence of deoxyribonucleic acid (DNA). On January 16, 2010, the results of the DNA testing were sent to the Stoughton police. Based on the test results, the DNA collected from the hat was determined to be a match for the DNA of the defendant.

After DNA testing linked the hat to the defendant, and inferentially to the armed robbery, the Commonwealth sought a criminal complaint in the District Court.² A complaint issued in the District Court on January 19, 2010, charging the defendant with the January 20, 2000, armed robbery. On May 12, 2010, more than four months after the ten-year anniversary of the date on which the bank robbery occurred, a grand jury returned an indictment charging the defendant with the armed robbery.

The defendant filed a motion to dismiss in the Superior Court on the ground that the ten-year statute of limitations for armed robbery, G.L. c. 265, § 17, had expired before the indictment was returned by the grand jury. The Commonwealth agreed that the statute of limitations had expired before the indictment was returned, but argued that, by the filing of the complaint on January 19, 2010, the statute of limitations was tolled. The judge concluded that the statute of limitations required an indictment to be issued and filed within ten years from the date of the offense, and ordered the case dismissed with prejudice. The Commonwealth appealed, and we allowed the Commonwealth's application for direct appellate review.

Discussion. “We review a question of statutory interpretation de novo, without deference to the motion judge's conclusion.” Commonwealth v. George W. Prescott Publ. Co., 463 Mass. 258, 264 n. 9, 973 N.E.2d 667 (2012). We focus first on the language of the statute, which provides “the primary source of insight into the intent of the Legislature.” Commonwealth v. Millican, 449 Mass. 298, 300, 867 N.E.2d 725 (2007). As a general rule, “we do not look to extrinsic sources to vary the plain meaning of a clear, unambiguous statute unless a literal construction would yield an absurd or unworkable result.” Id. at 300–301, 867 N.E.2d 725.

1. General Laws c. 277, § 63.³ As noted, the statute of limitations applicable to armed robbery states that “[a]n indictment for [armed robbery] ... may be found and filed within [ten] years after the date of commission of such offense.” G.L. c. 277, § 63.⁴ Based on a literal reading, this provision requires that an indictment be returned by the grand jury to the Superior Court within the ten-year limitations period. See Commonwealthv. Dixon, 458 Mass. 446, 454–455, 938 N.E.2d 878 (2010) (“The plain language of the statute creates an elementary legal formula: once an indictment has been ‘found and filed’ within the statutory period ..., the statute of limitations is tolled”). On this reading, the filing of a complaint would not toll the statute of limitations for armed robbery.

Other statutes of limitations set forth in § 63 support a reading of the text to mean that, as to specified offenses, the filing of a complaint will toll a limitations period only when the statute so provides. The second sentence of § 63 states:

“An indictment or complaint for an offense set forth in section 13B, 13B 1/2, 13B 3/4, 13F, 13L, 22A, 22B, 22C, 23, 23A, 23B, 24B or subsection ( b ) of section 50 of chapter 265, for conspiracy to commit any of these offenses, as an accessory thereto, or any [one] or more of them may be found and filed at any time after the date of the commission of such offense; but any indictment or complaint found and filed more than [twenty-seven] years after the date of commission of such offense shall be supported by independent evidence that corroborates the victim's allegation” (emphasis added).

“[W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present.” Commonwealth v. Galvin, 388 Mass. 326, 330, 446 N.E.2d 391 (1983), quoting Beeler v. Downey, 387 Mass. 609, 616, 442 N.E.2d 19 (1982).

Here, the Legislature has made specific reference to “indictment” in some provisions of § 63, in contrast to its use of “indictment or complaint” in the second sentence of that section. The reference to both indictment and complaint comports with the type of offenses listed in the provision to which the statute of limitations applies. Some of the offenses referred to in this sentence can be tried on a complaint and disposed of in the District Court. ⁵ Others must be tried on an indictment and disposed of in the Superior Court,⁶ even if the crime is first charged by a complaint issued in the District Court, unless the defendant has waived the right to be proceeded against by indictment under G.L. c. 263, § 4A. ⁷ By comparison, the first, fourth, and fifth sentences of § 63, setting forth the statutes of limitations applicable to certain other enumerated offenses, use only the term “indictment.” See note 4, supra. Each of the offenses listed in those sentences must, due to the nature of the offense, be tried and disposed of in the Superior Court after a grand jury have returned an indictment, unless the defendant has waived the right to be proceeded against by indictment.⁸

Read in this fashion, § 63 is internally consistent and supports an interpretation that requires the timely filing of an indictment, not a complaint, to toll the statute of limitations when the offense charged is armed robbery under G.L. c. 265, § 17. See Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 601, 925 N.E.2d 9 (2010) (statutes must be read as whole to produce internal consistency). See also Commonwealth v. Williamson, 462 Mass. 676, 681, 971 N.E.2d 250 (2012), quoting Commonwealth v. Galvin, supra at 328, 446 N.E.2d 391 (“When the meaning of any particular section or clause of a statute is questioned, it is proper ... to look into the other parts of the statute”). Moreover, were we to interpret “indictment” as implicitly incorporating “complaint” in the first, fourth, and fifth sentences of § 63, the two explicit references to “complaint” in the second sentence would be rendered impermissibly superfluous. See Commonwealth v. Millican, 449 Mass. 298, 300, 867 N.E.2d 725 (2007), quoting Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618, 227 N.E.2d 357 (1967) (“None of the words of a statute is to be regarded as superfluous”).

Our interpretation of § 63 is informed by our recognition that an indictment and a complaint are the products of two distinct procedures, and are not interchangeable labels for the commencement of a criminal proceeding. “An indictment is found when voted on favorably by twelve or more grand jurors, and filed when returned to a judge in open court.” Commonwealth v. Dixon, supra at 455, 938 N.E.2d 878, citing Mass. R.Crim. P. 5(e), as appearing in 442 Mass. 1505 (2004). See Charles C. v. Commonwealth, 415 Mass. 58, 65, 612 N.E.2d 229 (1993) (grand jury return indictments to Superior Court). Before an indictment may be returned, “at the very least the grand jury must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982), and cases cited. Indictment by a grand jury is thus an important component in the prosecution of serious crimes, one which we have described “as a bulwark of individual liberty and a fundamental protection against despotism and persecution.” Commonwealth v. Wilcox, 437 Mass. 33, 34, 767 N.E.2d 1061 (2002), quoting WBZ–TV4 v. District Attorney for...