Finn v. Commonwealth

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SJC-12687
JAMES FINN vs. COMMONWEALTH.
Suffolk. April 2, 2019. - August 13, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Pretrial Detention. Practice, Criminal, Arraignment. Arrest.
Statute, Construction.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 8, 2019.
The case was reported by Budd, J.
Lisa S. Core for the petitioner.
Catherine P. Sullivan, Assistant District Attorney
(Christina P. Ronan, Assistant District Attorney, also present)
for the Commonwealth.
Benjamin H. Keehn & Rebecca Kiley, Committee for Public
Counsel Services, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
GAZIANO, J. In this case, we consider whether G. L.
c. 276, § 58A, allows the Commonwealth to seek a dangerousness
hearing when a defendant appears before a Superior Court judge
for arraignment pursuant to a postindictment summons, rather
2
than an arrest warrant. We conclude that the language of the
statute permits a Superior Court judge to conduct a
dangerousness hearing upon a defendant's first appearance in
that court, regardless of whether that appearance is pursuant to
a summons or to an arrest warrant.1
1. Background. In December of 2017, the defendant was
arrested and charged by criminal complaint in the District Court
with one count of indecent assault and battery on a child
under the age of fourteen, G. L. c. 265, § 13B; one count of
open and gross lewdness, G. L. c. 272, § 16; and three counts of
dissemination of obscene material to a minor, G. L. c. 272,
§ 28. The offense involved allegations concerning three
children (two of whom were related) who lived in the defendant's
apartment building. At arraignment, the Commonwealth moved for
pretrial detention pursuant to G. L. c. 276, § 58A. After an
evidentiary hearing, a District Court judge ordered that the
defendant be held without bail. The judge then allowed the
defendant's motion for reconsideration, and ordered that the
defendant could be released with conditions, including global
positioning system monitoring, a "no contact" order with the
alleged victims and the witnesses, and a prohibition on alcohol
1 We acknowledge the amicus letter submitted by the
Committee for Public Counsel Services.
3
and drug use. The defendant was released under these conditions
in January 2018.
Approximately three weeks later, in February 2018, a grand
jury indicted the defendant on three counts of indecent assault
and battery on a child under the age of fourteen, and two counts
of disseminating obscene material to a minor, for the same
events underlying the December 2017 complaint. The prosecutor
arranged with defense counsel to schedule the defendant's
arraignment in the Superior Court; no new arrest warrant was
issued. The defendant complied with a summons, and was
arraigned in March 2018. At arraignment, the Commonwealth moved
for pretrial detention pursuant to G. L. c. 276, § 58A. The
defendant opposed the motion on the ground that the Commonwealth
lacked the right to seek a dangerousness hearing in the Superior
Court because the defendant had not been "'subject to arrest' or
'held under arrest' when he appeared for his arraignment,
pursuant to [a] summons."
In a written memorandum of decision, a Superior Court judge
allowed the motion for pretrial detention, without prejudice.2
2 The judge sufficiently explained his reasoning, the
options he considered, and how he reached his conclusion. See
G. L. c. 276, § 58A (5) (in determining "whether there are
conditions of release that will reasonably assure the safety of
any other individual or the community," judge "shall . . . take
into account the nature and seriousness of the danger posed to
any person or the community that would result by the person's
release, the nature and circumstances of the offense charged,
4
The judge concluded that this court's interpretation of G. L.
c. 276, § 58A, as set forth in Commonwealth v. Diggs, 475
Mass. 79, 80 (2016), allowed the Commonwealth to seek a
dangerousness hearing in the Superior Court notwithstanding the
defendant's release on conditions following his arraignment in
the District Court. The judge considered and rejected the
defendant's proffered conditions of release (including
relocating to a motel), and found "that such conditions do not
reasonably assure the safety of young children in the
community."3 See G. L. c. 276, § 58A (3). Approximately ten
months later, the defendant filed an emergency petition for
the potential penalty the person faces, the person's family
ties, employment record and history of mental illness, his
reputation, the risk that the person will obstruct or attempt to
obstruct justice or threaten, injure or intimidate or attempt to
threaten, injure or intimidate a prospective witness or juror,
his record of convictions, if any, any illegal drug distribution
or present drug dependency, whether the person is on bail
pending adjudication of a prior charge, whether the acts alleged
involve abuse . . . or violation of a temporary or permanent
[restraining] order . . . , whether the person has any history
of [protective] orders issued against him [or her] . . . , [and]
whether he [or she] is on probation, parole or other release
pending completion of sentence . . .").
3 The judge determined that because the defendant could not
identify a "suitable residence and custodian," the defendant
would need to reside at a place of public accommodation; the
judge then concluded that "[i]f children in a large apartment
building were at risk, as this court has found probable cause to
believe, children in an unsupervised place of public
accommodation would also be at risk." Nonetheless, the
defendant "remain[ed] free to make a more significant
presentation of a proffered custodian and residence."
5
interlocutory review in the county court, pursuant to G. L.
c. 211, § 3, seeking to vacate the order of pretrial detention.
The single justice reserved and reported the matter to the full
court.
2. Discussion. We confine our review to the legal
question before us: the defendant's argument that the
Commonwealth lacked authority to move to detain him pursuant to
G. L. c. 276, § 58A, because he was not "under arrest" or
subject to arrest within the meaning of the statute when he
appeared in the Superior Court pursuant to a summons.4 See
Commonwealth v. Giang, 402 Mass. 604, 608 (1988). We review
this question of statutory interpretation de novo. Diggs, 475
Mass. at 81.
We interpret a 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
4 We note that this opinion likely will be released after
the completion of the defendant's trial, meaning that the case
will become moot. Nonetheless, we address this issue because it
is "of recurring importance to the administration of justice in
the Commonwealth," and likely to evade review. See Commonwealth
v. Lester L., 445 Mass. 250, 253 (2005); Mendonza v.
Commonwealth, 423 Mass. 771, 777 (1996).
6
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).
The primary purpose of G. L. c. 276, § 58A, is to
"protect[] 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." Diggs, 475 Mass. at 84. Accordingly,
the statute "permits pretrial detention of persons accused of
certain crimes on the grounds of dangerousness, in order to
protect public safety." Commonwealth v. G.F., 479 Mass. 180,
198 (2018), citing Mendonza v. Commonwealth, 423 Mass. 771, 778,
782, 790 (1996).
As relevant here, G. L. c. 276, § 58A (4), provides in
pertinent 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 release will reasonably assure the safety of
any other person or the community."
In Diggs, 475 Mass. at 82, we noted that the statute does not
provide a definition of the phrase "held under arrest," within
the meaning of this subsection. We rejected a strictly literal
interpretation of the phrase, and observed that, in light of the
statute's primary 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
7
magistrate, those who are arrested and in physical custody, and
those for whom an arrest warrant has issued, but has not been
executed." Id. at 84. See Commonwealth v. Peterson, 476 Mass.
163, 167 (2017) ("we do not adhere . . . to a literal reading of
a statute if doing so would yield an 'absurd' or 'illogical'
result" [citation omitted]). We concluded in Diggs. supra at
80, "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 first
appearance before the court.'"
The defendant nonetheless argues that the Superior Court
judge lacked authority to detain him under G. L. c. 276, § 58A.
The defendant maintains that he "was not 'held under arrest' --
as the terms of the 'dangerousness' statute requires -- or
subject to arrest -- as interpreted by Diggs -- when he first
appeared . . . in the . . . [S]uperior [C]ourt, notwithstanding
that he was previously arrested and arraigned in the . . .
[D]istrict [C]ourt." We do not agree.
The defendant would require the Commonwealth to rearrest
any individual who previously had been released on conditions
after a dangerousness hearing in the District Court, or released
8
under G. L. c. 276, § 58, should the Commonwealth seek a
dangerousness hearing following an indictment and subsequent
arraignment in the Superior Court. This argument is unavailing
and would produce illogical results. It also is inconsistent
with our existing precedent. See Commonwealth v. Murchison, 428
Mass. 303, 303 (1998) ("The Superior Court must hold a new
hearing in order to determine whether a defendant previously
subject to a pretrial detention order in a District Court may be
detained without bail after an arraignment in the Superior
Court"). See also Commonwealth v. Parella, 464 Mass. 274, 280
(2013) ("an indictment and a complaint are the products of two
distinct procedures, and are not interchangeable labels for the
commencement of a criminal proceeding"); Commonwealth v. Madden,
458 Mass. 607, 607 (2010) (Superior Court judge has "authority
to review and modify pretrial conditions of release imposed on a
defendant by a District Court judge pursuant to G. L. c. 276,
§ 58A"); Commesso v. Commonwealth, 369 Mass. 368, 373 (1975) (G.
L. c. 276, § 58A (4), "requires the Superior Court judge to
consider the matter anew and to exercise his [or her] own
judgment and discretion").
Moreover, subjecting a defendant to arrest is more
disruptive to that defendant than is a mutual agreement to
appear in court pursuant to a summons. The defendant's reading
would result in increased arrests, and unnecessary use of
9
Commonwealth and court resources, where an arrest may be
unnecessary. We discern "nothing in the history or purpose of
the statute that justifies such an extreme and excessive
result." Peterson, 476 Mass. at 168.
When a defendant is indicted, regardless of whether the
indictment was preceded by a criminal complaint, that defendant
is subject to the possibility of arrest on those charges if a
court determines that the defendant is unlikely to "appear upon
a summons alone." See Reporters' Notes to Rule 6, Mass. Ann.
Laws Court Rules, Rules of Criminal Procedure, at 1504
(LexisNexis 2018).5 As the Commonwealth acknowledged at argument
before us, however, requesting a defendant's presence in court
through a summons is far preferable to arresting the defendant.
See id. ("The preference for the issuance of summonses operates
to conserve law enforcement resources by releasing the police
for other duties, and conserves the resources of the court and
parties"). See also Commonwealth v. Mogelinski, 466 Mass. 627,
634 (2013) (noting preference for summonses over warrants to
arrest in juvenile context). Practically, both an arrest and a
5 We note that the defendant in this case was indicted on
two charges (involving the same conduct) for which no complaint
had been filed in the District Court. Accordingly, his
appearance in the Superior Court pursuant to a summons was in
fact his first appearance in any court with respect to two of
the charges against him.
10
postindictment summons bring a defendant before a Superior Court
judge for the first time for arraignment on indicted charges.
Given that G. L. c. 276, § 58A, is intended primarily to
protect the public, see Diggs, 475 Mass. at 84, citing 1994
House Doc. No. 4305 and St. 1994, c. 68, the Legislature would
not have intended to preclude the Commonwealth from being able
to move for a dangerousness hearing should the Commonwealth seek
the defendant's presence in court through a summons, as Mass. R.
Crim. P. 6, 378 Mass. 842 (1979), encourages, where the
defendant is likely to appear without being arrested. See E.B.
Cypher, Criminal Practice and Procedure § 3:35 (4th ed. 2014).
Accordingly, we clarify that a Superior Court judge has
authority to conduct a dangerousness hearing pursuant to G. L.
c. 276, § 58A, regardless of whether a defendant appears before
the judge for the first time pursuant to a postindictment
summons or an arrest warrant; in either instance, the
defendant's first appearance in the Superior Court constitutes a
"first appearance" within the meaning of Diggs, supra at 85.
The matter is remanded to the county court for entry of an
order denying the defendant's petition for interlocutory relief
pursuant to G. L. c. 211, § 3.
So ordered.