Commonwealth v. Alves (Lawyers Weekly No. 11-104-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1183 Appeals Court COMMONWEALTH vs. OCTAVIANO ALVES. No. 13-P-1183. Suffolk. June 9, 2014. – August 27, 2014. Present: Kantrowitz, Agnes, & Hines, JJ.[1] Criminal Records. Practice, Criminal, Record, Complaint. Evidence, Identity. Mistake. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on March 7, 2012. A motion to expunge court and criminal records was heard by James W. Coffey, J., and a motion for reconsideration was heard by him. Hung Tran for the defendant. Amanda Teo, Assistant District Attorney, for the Commonwealth. AGNES, J. The single question before us is whether the proper remedy for a clerical error that results in the issuance of a criminal complaint against a person who not only did not commit the crime, but also was never the intended target of the police investigation, is to seal the record pursuant to G. L. c. 276, § 100C. In the unusual circumstances of this case, we conclude that even though the error was not corrected until the eve of trial when the complaint was dismissed, the statutory remedy of sealing the record was not the only option available to the judge, and that an expungement order is appropriate.[2] Background. Due to a clerical error, Octaviano Alves (date of birth: 1983) (Alves 1983), was charged with leaving the scene of a motor vehicle accident after causing property damage in violation of G. L. c. 90, § 24(2)(a) (criminal docket number 1207CR1074). Alves 1983 did not commit the offense, nor was he ever suspected of committing the offense. The actual perpetrator, i.e., the driver of the vehicle who left the scene, was Octaviano Alves (date of birth: 1977) (Alves 1977). Alves 1977, the correct defendant, was apprehended by the police, but was not arrested. A citation was delivered to him in hand. The police accurately recorded Alves 1977′s name, date of birth, Massachusetts license number, and home address. The police filed a timely application for a criminal complaint against Alves 1977. After a “show cause” hearing attended by Alves 1977, see G. L. c. 218, § 35A, as amended through St. 2004, c. 49, § 200, probable cause to issue process was found to exist, but, due to a clerical error, the summons and the complaint contained an incorrect date of birth that corresponded to Alves 1983. Although […]