Commonwealth v. Michael A. Hand. ( 2023 )

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-301
COMMONWEALTH
vs.
MICHAEL A. HAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Michael A. Hand, appeals from an order of a
single justice of this court denying his petition pursuant to
G. L. c. 211, § 3, 1 seeking bail review. Discerning no error of
law or abuse of discretion by either the single justice or the
Superior Court judge, we affirm.
1. Standard of Review. Ordinarily, "[w]hen a party
appeals from an adverse judgment by the single justice under
G. L. c. 211, § 3, we review the single justice's order for
clear error of law or abuse of discretion." Brangan v.
Commonwealth, 477 Mass. 691, 697 (2017). Here, however, "the
1 The petition was originally filed with the Supreme Judicial
Court for Suffolk County. On March 1, 2023, a single justice of
the Supreme Judicial Court transferred this matter to this court
in accordance with the Supreme Judicial Court's Standing Order
Regarding Transfer of Certain Single Justice Matters During the
COVID-19 Pandemic (eff. June 8, 2020).
single justice did not exercise his discretion [to consider the
matter anew], and consequently, we focus our attention on his
legal ruling that the bail judge did not abuse his discretion"
(footnote omitted). Vasquez v. Commonwealth, 481 Mass. 747, 751
(2019). "We review this legal ruling independently to determine
whether it is erroneous, without giving any deference to the
single justice's decision." Id. Accordingly, we must determine
"whether the bail judge's decision to deny the defendant's bail
request involved an abuse of discretion or error of law." Id.Where, as here, the defendant is charged with murder in the
first degree, G. L. c. 265, § 1, "the power to grant bail is
highly discretionary." Pinney v. Commonwealth, 484 Mass. 1003,
1005 (2020). "It is presumed that a defendant charged with
murder in the first degree is not entitled to bail."
Commonwealth v. Dame, 473 Mass. 524, 539 (2016). Accord
Commonwealth v. Herring, 489 Mass. 569, 576 n.12 (2022).
"Insofar as the bail judge's decision involved an exercise of
discretion, we must accord it great deference." Vasquez, 481
Mass. at 751, citing L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). "A decision constitutes an abuse of discretion
where it results from 'a clear error of judgment in weighing the
factors' and consequently 'falls outside the range of reasonable
alternatives.'" Herring, supra at 573, quoting L.L., supra.2
2. Denial of the defendant's renewed motion for bail.
When a judge orders a defendant to be held without bail, the
judge must set forth "[a] statement of findings and reasons,
either in writing or orally on the record," justifying the
decision. Vasquez, 481 Mass. at 759-760. Such findings and
reasoning satisfy due process when they consider relevant
factors such as "the defendant's risk of flight in light of the
strength or weakness of the Commonwealth's case and the
potential penalty, taking into consideration as well the
defendant's" ties to the community. Id. at 756.
When a judge considers a subsequent bail request, the prior
bail judge's findings "form[] the backdrop for the second
judge's decision," and we consider both decisions together.
Pinney, 484 Mass. at 1006. A subsequent bail decision need not
reconsider determinations made by a prior bail judge so long as
the prior bail judge's findings and reasoning "gave
consideration to various relevant factors and engaged in the
required individualized bail determination." Id.
Here, the first bail judge's findings and reasoning were
adequate to satisfy due process requirements. On December 18,
2020, after a hearing, the first bail judge issued an order
denying the defendant's motion for bail, finding that, in light
of the strength of the Commonwealth's case and the fact that the
defendant does not have "anything tying him to Massachusetts,"
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he "presents far more than a generic risk of flight." 2 See
Vasquez, 481 Mass. at 755 ("the stronger the evidence, the
greater the likelihood that the defendant will be convicted, and
hence the greater the defendant's incentive to flee"). The
first bail judge carefully examined the evidence against the
defendant, acknowledging the exculpatory (though hardly
conclusive) physical evidence and the partial suppression of the
defendant's statements, but concluding that the admissible
statements are damning. Although the defendant mightily urges a
contrary view of the evidence, "it is not appropriate for us to
substitute our own assessment for [the bail's judge]" in light
of the bail judge's superior vantage point. Id. at 752.
Moreover, as the first bail judge stressed, the risk the
defendant will flee is particularly acute where the defendant is
facing life in prison without parole if convicted. See Vasquez,
481 Mass. at 755 (risk of flight at its greatest where defendant
faces life in prison without possibility of parole). Thus,
where, as here, the defendant is charged with murder in the
first degree and the first bail judge considered the relevant
2 In addition to the defendant's risk of flight, the first bail
judge also considered the defendant's "character and mental
condition, criminal record and appearances at court
proceedings," and, in doing so, "gave consideration to various
relevant factors and engaged in the required individualized bail
determination." Pinney, 484 Mass. at 1006.
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bail factors, the defendant "may be properly held without bail
to assure his or her future appearance without violating due
process." Id. at 758.
Viewing the second bail judge's decision in tandem with the
first, we discern no abuse of discretion. The second bail judge
specifically invoked the first bail judge's findings, noting
that "[t]here has been no substantive change in . . . the record
since the Court's denial of defendant's original motion for
bail." Far from ignoring the passage of time since the first
bail judge's order, the second bail judge specifically
considered it and found that the "[d]elay attributable to the
pending interlocutory appeal does not change the analysis set
forth in" the first bail judge's decision.
We discern no abuse of discretion in the second bail
judge's analysis. The second bail judge could reasonably
conclude that the passage of nearly two years, though
undoubtedly weighty, did not change the strength of the case
against the defendant, the heavy penalty faced, or the
defendant's lack of ties to the community. 3 Accordingly, the
3 The defendant presented the single justice with counsel's
affidavit asserting that the defendant suffers from mobility
issues. As there is no indication in the record that the
defendant presented this information to the bail judges, we do
not consider it. The defendant remains free to present this
information, preferably corroborated by medical records, to the
trial court in a renewed motion for bail.
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single justice properly concluded that the second bail judge
acted within his discretion in denying the defendant's request
for release on bail.
3. Conclusion. The order of the single justice, denying
the defendant's petition for relief pursuant to G. L. c. 211,
§ 3, is affirmed.
So ordered.
By the Court (Neyman, Henry &
Ditkoff, JJ. 4),
Clerk
Entered: December 12, 2023.
4 The panelists are listed in order of seniority.
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