Commonwealth v. Diggs (SJC 12008) Commonwealth v. Soto , 475 Mass. 79 ( 2016 )

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SJC-12008
SJC-12009
COMMONWEALTH vs. MARCEL A. DIGGS.
COMMONWEALTH vs. DAMIANE K. SOTO.
Suffolk. April 7, 2016. - July 29, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.1
Bail. Arrest. Statute, Construction.
Civil actions commenced in the Supreme Judicial Court for
the county of Suffolk on November 9 and 17, 2015.
The cases were reported by Spina, J.
Edward Crane for the defendants.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
Timothy J. Cruz, District Attorney, & Robert C. Thompson,
Assistant District Attorney, for the Commonwealth, amicus
curiae, submitted a brief.
DUFFLY, J. The defendants, Marcel A. Diggs and Damiane K.
1
Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
Soto, challenge orders for pretrial detention imposed by
District Court judges after hearings at which the judges
concluded that each defendant was dangerous within the meaning
of G. L. c. 276, § 58A (dangerousness statute). Under that
statute, a person "held under arrest" on charges of one of an
enumerated list of offenses may be subject to "a hearing to
determine whether conditions of release will reasonably assure
the safety of any other person or the community." G. L. c. 276,
§ 58A (4). The defendants argue that neither of them was "held
under arrest" within the meaning of G. L. c. 276, § 58A (4),
when they appeared in court to be arraigned, and therefore that
they could not lawfully be subjected to a pretrial detention
hearing. The defendants each filed petitions for extraordinary
relief pursuant to G. L. c. 211, § 3, in the county court. The
single justice ordered the matters joined and reserved and
reported them to the full court.
We conclude that where a criminal defendant has been
arrested or is subject to an outstanding arrest warrant for an
enumerated offense, the defendant may be subject to pretrial
detention under G. L. c. 276, § 58A (4), even if the defendant
is not held in custody following the arrest, so long as the
dangerousness hearing takes place "immediately upon the person's
3
first appearance before the court."2 Id. Accordingly, we affirm
the orders of pretrial detention.
Background. 1. Damiane Soto. Soto was arrested on
charges of assaulting and threatening his pregnant girl friend,
in violation of G. L. c. 265, § 13A, and G. L. c. 275, § 2.3
After he was booked at the Marlborough police station, Soto
posted bail, which had been set at $1,000. Two days later, a
criminal complaint issued charging Soto with the offenses
alleged. That same day, when Soto appeared in court as
required, the Commonwealth moved for an order of pretrial
detention under the dangerousness statute. Soto argued that he
could not be detained because he had been released on bail
following his arrest, and therefore he was not "held under
arrest" when he appeared for arraignment. The judge rejected
2
As we observed in Mendonza v. Commonwealth, 423 Mass. 771,
780 (1996), the Commonwealth bears a "heavy burden" to satisfy
G. L. c. 276, § 58A, and therefore to subject an individual to
pretrial detention. The Commonwealth must establish by clear
and convincing evidence that "no conditions of release will
reasonably assure the safety of any other person or the
community." G. L. c. 276, § 58A (3).
3
General Laws c. 276, § 58A (1), provides, in relevant
part, that "[t]he [C]ommonwealth may move, based on
dangerousness, for an order of pretrial detention . . . [for] a
violation of an order pursuant to . . . [G. L. c. 209A,
§§ 3, 4, 5,] . . . or arrested and charged with a misdemeanor or
felony involving abuse as defined in [G. L. c. 209A, § 1]." The
Commonwealth sought pretrial detention on the theory that the
offenses for which Soto was charged are enumerated offenses
because they are misdemeanors involving "abuse" of a "family or
household member" as defined in G. L. c. 209A, § 1. Soto does
not dispute this contention.
4
Soto's challenge to the legality of the proceedings, conducted a
dangerousness hearing, and ordered Soto held without bail
pursuant to G. L. c. 276, § 58A (4).
2. Marcel Diggs. Diggs allegedly threatened to burn down
a house belonging to the mother of his former girl friend, while
the family was inside. Following the threat, the former girl
friend filed a report with the Watertown police department and
sought a restraining order against Diggs. A summons was issued
based on these events, and on the following day, a criminal
complaint issued charging Diggs with threatening to commit a
crime, G. L. c. 275, § 2.4 Shortly thereafter, following a
review of Diggs's criminal history, a Watertown police officer
obtained an arrest warrant for Diggs. Diggs, however, had no
fixed address at that point, and police were unable to locate
him to execute the arrest warrant.
Several months later, Diggs was held on a probation
detainer in Plymouth County for violating the terms of his
probation in an unrelated matter. When authorities from the
Plymouth County house of correction transported Diggs to the
District Court to appear for arraignment on those charges, the
Commonwealth moved for pretrial detention based on
dangerousness. Diggs argued that he was not subject to pretrial
4
Diggs does not dispute the Commonwealth's assertion that a
violation of G. L. c. 275, § 2, is an enumerated offense under
the dangerousness statute.
5
detention because, although he was in the custody of Plymouth
County on charges of a probation violation, he had not been
arrested by the Watertown police in connection with the
complaint charging him with threatening to commit a crime, and
thus was not "held under arrest" for an enumerated offense at
the time of his arraignment. The judge rejected Diggs's
challenge to the legality of the proceedings, conducted a
dangerousness hearing pursuant to G. L. c. 276, § 58A, and
ordered Diggs held in pretrial detention without bail.
Discussion. Whether the defendants were "held under
arrest," such that the Commonwealth lawfully could seek
dangerousness hearings under G. L. c. 276, § 58A, at the time of
their arraignments, is a question of statutory interpretation.
We review questions of law, such as statutory interpretation, de
novo. Boston Police Patrolmen's Ass'n v. Boston, 435 Mass. 718,
719 (2002). "Our task is to interpret the statute 'according to
the intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated.'" O'Brien v. Director of the Div. of Employment
Sec., 393 Mass. 482, 487-488 (1984), quoting Industrial Fin.
Corp. v. State Tax Comm'n, 367 Mass. 360, 364 (1975). To the
6
extent that the Legislature's intent is clear, "the statute, if
reasonably possible, must be construed to carry out that
intent." Automobile Insurers Bur. of Mass. v. Commissioner of
Ins., 425 Mass. 262, 267 (1997), quoting Industrial Fin. Corp.
v. State Tax Comm'n, supra. Because we assume generally that
the Legislature intends to act reasonably, "[w]e will not adopt
a literal construction of a statute if the consequences of such
a construction are absurd or unreasonable." Champigny v.
Commonwealth, 422 Mass. 249, 251 (1996), quoting Attorney Gen.
v. School Comm. of Essex, 387 Mass. 326, 336 (1982).
General Laws c. 276, § 58A (4), provides in relevant part:
"When a person is held under arrest for an offense
listed in subsection (1) and upon a motion by the
[C]ommonwealth, the judge shall hold a hearing to determine
whether conditions of releases will reasonably assure the
safety of any other person or the community."
The statute does not define the meaning of "held under arrest"
for purposes of this subsection. Relying on dictionary
definitions of the word "arrest," the defendants argue that a
defendant is held under arrest when he or she is arrested and
held in physical custody by a legal authority. The defendants
also point to the United States Court of Appeals for the Ninth
Circuit's decision in United States v. Leal-Felix, 665 F.3d
1037, 1041 (9th Cir. 2011), in which the court interpreted the
word "arrest," as used in the United States sentencing
guidelines, to mean the process by which the police inform a
7
suspect that she or he is under arrest, transport the suspect to
the police station, and book the suspect into jail. The
defendants argue that they were not subject to pretrial
detention hearings because neither of them was arrested and in
the custody of the arresting authorities at the time of
arraignment.
The Commonwealth contends that such a construction of the
statute would contravene the intent of the Legislature. It
proffers the following hypothetical. Three suspects, all with
identical criminal records demonstrating a history of violent
offenses, jointly commit an armed robbery. One suspect is
arrested immediately and brought before the court for
arraignment. The second suspect is arrested after the District
Court has closed for the day, and subsequently released on bail
with instructions to report to court the next day. The third
suspect evades arrest, and an arrest warrant issues. That
suspect is later arrested in another jurisdiction for an
unrelated offense, and eventually is brought before the court to
remove the warrant for the armed robbery. Under the defendants'
proposed construction of the phrase "held under arrest," only
the first suspect would be subject to a dangerousness hearing,
even though all three suspects have the same criminal histories
and are charged with the commission of the same enumerated
offense. The Commonwealth maintains that the Legislature could
8
not have intended this outcome.
We agree that construing the phrase "held under arrest" in
a strictly literal sense would thwart the dangerousness
statute's intended purpose to protect the public from dangerous
individuals who are awaiting trial for a specified set of
offenses that include, as here, offenses involving the abuse of
family members. See Commonwealth v. Young, 453 Mass. 707, 709
(2009), quoting Mendonza v. Commonwealth, 423 Mass. 771, 780
(1996) ("The pretrial detention regime in [G. L. c. 276],
§ 58A[,] 'is explicitly predictive and seek[s] systematically to
identify those who may present a danger to society and to
incapacitate them before that danger may be realized'"); G. L.
c. 276, § 58A (1) (listing enumerated offenses).
The Legislature enacted G. L. c. 276, § 58A, in the wake of
this court's decision in Aime v. Commonwealth, 414 Mass. 667,
682 (1993), which struck down the prior regime of pretrial
detention in part because it did not afford sufficient
procedural protections to individuals before they were subject
to pretrial detention.5 See 1994 House Doc. No. 4305. The
5
In Aime v. Commonwealth, 414 Mass. 667, 682 (1993), we
struck down G. L. c. 276, § 58, as amended through St. 1992,
c. 201, § 3, the predecessor to G. L. c. 276, § 58A, because we
concluded that the statute as written violated the due process
clause of the Fourteenth Amendment to the United States
Constitution. The predecessor statute applied to all persons
arrested or subject to arrest, regardless of the seriousness of
the offense charged; it did not require the Commonwealth to
9
Governor proposed the new form of the dangerousness statute,
originally entitled, "An Act to reduce crime committed by
defendants awaiting trial," to the Legislature.6 In his letter
to the House of Representatives and the Senate accompanying the
proposed bill, the Governor explained that the bill would cure
the procedural defects of the prior statute, and commented,
"Government has no more important obligation than
protecting the safety of its citizens, and yet dangerous
arrestees who clearly pose an ongoing danger to our
community too often are released out on bail or personal
recognizance. Innocent lives, particularly the lives of
women victimized by domestic violence continue to be put at
risk. This legislation is critical to our ability to
reduce, if not eliminate, that risk."
Id. The Legislature approved House Bill No. 4305 on July 14,
1994.7 See St. 1994, c. 68.
The phrase at issue here, "held under arrest," was included
prove dangerousness by any specific standard of proof; and it
did not provide the individual with the right to be heard, to
cross-examine witnesses, or to counsel. In Mendonza v.
Commonwealth, 423 Mass. at 780-788, we concluded that the
amended version of the dangerousness statute, at issue here,
provided adequate procedural protections by limiting its
application to situations where there was probable cause to
believe that an individual had committed certain enumerated
offenses, requiring the Commonwealth to prove dangerousness by
clear and convincing evidence, and affording a right to a
hearing and the right to counsel.
6
The title subsequently was changed to "An Act relative to
the release on bail of certain persons." See St. 1994, c. 68.
7
Enactment of G. L. c. 276, § 58A, followed public debate
on a widely publicized killing of a woman by her husband, who
had been released on bail following an earlier attack against
her. See Killing of Malden Woman Ignites Fight on Bail Reform,
Boston Globe, May 9, 1994.
10
in the Governor's proposed bill, and the Legislature adopted
that provision virtually verbatim. See 1994 House Doc.
No. 4305; St. 1994, c. 68, § 6. Based on this, we conclude that
the Legislature enacted G. L. c. 276, § 58A, with the intent of
protecting the public from the potential harm posed by persons
who have been arrested or are subject to arrest, who have been
found to be dangerous. See Mendonza v. Commonwealth, supra at
781 (fact that "a surprising percentage of crimes are committed
by persons awaiting trial" provided support for Commonwealth's
need to detain "persons who pose a particular danger to the
public").
Given this explicitly articulated purpose to protect the
public, it is unlikely that the Legislature intended to draw
arbitrary distinctions between individuals who have been
released on bail by a magistrate, those who are arrested and in
physical custody, and those for whom an arrest warrant has
issued, but has not been executed. See Reade v. Secretary of
the Commonwealth, 472 Mass. 573, 578 (2015), cert. denied, 136
S. Ct. 1729 (2016), quoting Watros v. Greater Lynn Mental Health
& Retardation Ass'n, 421 Mass. 106, 113 (1995) ("[I]t is a well-
established cannon of statutory construction that a strictly
literal reading of a statute should not be adopted if the result
will be to thwart or hamper the accomplishment of the statute's
obvious purpose, and if another construction which would avoid
11
this undesirable result is possible").
We are not persuaded by the defendants' assertion that the
Legislature intended to draw such a distinction in order to
encourage defendants who have been released on bail, or who have
not yet been arrested, to appear in court, rather than to
default. Nothing in the language, structure, or history of the
dangerousness statute suggests that the use of the phrase "held
under arrest" indicates a legislative intent to provide an
incentive to persons who have been arrested or are subject to
arrest, but who are not in custody, to appear in court.
Moreover, the Legislature has criminalized the failure to appear
in court after release on bail, thereby providing an explicit
disincentive for an individual to default. See G. L. c. 276,
§ 82A. Adopting the defendants' proposed construction would
thwart the legislative purpose to permit a judge to determine
whether someone charged with a crime is sufficiently dangerous
so as to warrant detention while awaiting trial, or whether
additional safeguards are required in order to allow the
individual to be admitted to bail while protecting the public.
See Commonwealth v. Scott, 464 Mass. 355, 358 (2013), quoting
Opinion of the Justices, 313 Mass. 779, 782 (1943) ("the
construction of a word or phrase may vary from its plain meaning
when such a meaning would 'involve a construction inconsistent
with the manifest intent of the law-making body or repugnant to
12
the context of the same statute").
In sum, the phrase "held under arrest," within the meaning
of G. L. c. 276, § 58A (4), refers to any person who has been
arrested or for whom an arrest warrant has issued in connection
with one of the enumerated offenses in G. L. c. 276, § 58A (1).
Under this construction, both defendants were "held under
arrest," and therefore properly were subject to a dangerousness
hearing pursuant to G. L. c. 276, § 58A (4), where each hearing
was held "immediately upon the person's first appearance before
the court."
Orders for pretrial
detention affirmed.