COMMONWEALTH

v.

W. MICHAEL RYAN

MEMORANDUM IN SUPPORT OF

MOTION FOR BILL OF PARTICULARS

Introduction & Background

The defendant has filed a request for a Bill of Particulars as to the manner and means of the
crimes of which he is charged - Assault and Battery on a Police Officer and Disorderly Person -
and the Commonwealth has declined to consent to the motion. Accordingly, it is left to the
Court’s discretion (Commonwealth v. Baron, 356 Mass. 364 [1969]), whether the Defendant is
entitled to a Bill of Particulars in order to give him a “reasonable knowledge of the nature and
character of the crimes charged.” Commonwealth v. Hare, 361 Mass. 263 267-268, (1972)

Since an A&B can be committed by either an intentional touching or a reckless act that leads
to a touching, the Defendant asks only that the Commonwealth specify on which it intends to
proceed. Likewise, on the charge of Disorderly Person, there are four distinct manners of
committing the offense and the Defendant asks only that the Commonwealth declare how he
committed the crime of which it accuses him.

Law & Argument

“Article 12 of the Massachusetts Declaration of Rights provides that no one can ‘be held to
answer for any crimes or offence, until the same is fully and plainly, substantially and formally,
described to him.’” Commonwealth v. Wilson, 72 Mass. App. Ct. 416, 417 (2008) This ruling
does not require a Bill of Particulars in every case but the Supreme Judicial Court has frequently
noted, “There may be circumstances under which article 12 of the Massachusetts Declaration of
Rights requires a court to issue a bill of particulars…” Commonwealth v. Allison, 434 Mass. 670,
677 (2001) This is such a case.

Given the variety of ways each of the crimes can be committed, the Defendant is entitled to
“reasonable knowledge of the nature and character of the crime charged” (Commonwealth v.
Lewis, 48 Mass, App. Ct. 343, 348 [1999]) in order to prepare his defense. Understanding the
charges is essential for the adequate selection of witnesses and the preparation of voir dire jury
questions, questions for direct and cross examination of witnesses and requests for jury
instructions.

In regards to the Assault & Battery charge, the Defendant does not know whether the
Commonwealth intends to prove he deliberately and intentionally jabbed Officer Kohl’s wrist or
whether it intends to prove he recklessly jabbed the wrist while intending to retrieve his wallet.
It is unclear from the complaint application under which theory the Commonwealth proceeds and
the reports of the four officers present confuse the matter further. Without a bill of particulars,
the defense cannot be prepared until the Commonwealth’s witnesses testify.

The crime of Disorderly Person requires proof that the defendant, “with purpose to cause
public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, engaged in
fighting or threatening or in violent or tumultuous behavior or created a hazardous or offensive
condition by any act that serves no legitimate purpose of the actor.” Commonwealth v. Chou,
433 Mass. 229, 232 (2001). The information supplied to the Clerk Magistrate to obtain the
complaint is insufficient as a matter of law to sustain a conviction on any of the four possible
ways of committing the offense and the Defendant may be entitled, as a matter of law, to a
dismissal of the Disorderly Person complaint. Requiring the Commonwealth to produce a Bill of
Particulars may negate the necessity of such a motion.

If the Commonwealth cannot make out a prima facia case in a bill of particulars, it may enter
a nolle prosequi; if it can provide the defendant with reasonable knowledge of the nature and
character of the crime charged, the defendant will likely forego the motion. In either case,
requiring the Commonwealth to produce a bill of particulars is likely to avoid a motion hearing
day. Judicial economy will be well served by granting this motion.

Conclusion

For the reasons set forth above, the Motion for a Bill of Particulars as to the manner and means
of the offense ought to be allowed on Article 12 and Due Process grounds.