423 Mass. 793

October 9, 1996 - November 14, 1996

Suffolk County


The pretrial preventive detention provisions of G. L. c. 276, s. 58A, apply to juveniles and there was no inconsistency between that statute and G. L. c. 119, s. 68, providing for pretrial detention of juveniles in certain circumstances. [793-797]

CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on July 10, 1995.

The case was heard by Greaney, J.

Craig A. Cellitti for the juvenile.

Geraldine Griffin, Assistant District Attorney, for the Commonwealth.

ABRAMS, J. The question presented is whether the pretrial detention provisions of G. L. c. 276, s. 58A (1994 ed.), [Note 1] apply to juveniles. The juvenile was charged with armed assault with intent to rob, and assault and battery by means of a dangerous weapon in a juvenile session of a District Court. A District Court judge found that the Commonwealth had shown by clear and convincing evidence that, pursuant to G. L. c. 276, s. 58A, the juvenile should be held in pretrial detention without bail. The juvenile petitioned a single justice of this court for release on bail pursuant to G. L. c. 211, s. 3 (1994 ed.). Bail was denied. The juvenile timely appealed.

Subsequently, the ninety-day maximum period of detention under G. L. c. 276, s. 58A, expired, and the District Court ordered the juvenile held on $2,000 cash bail. Following a

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bench trial, the juvenile was adjudicated delinquent on charges of armed assault with intent to murder [Note 2] and assault and battery by means of a dangerous weapon. The judge then ordered a new trial, sue sponte, on the ground that he had erred in not granting the juvenile's motion for a required finding of not delinquent. [Note 3]

The juvenile concedes that, because he is no longer being held pursuant to G. L. c. 276, s. 58A, this appeal is now moot. The juvenile, however, asks that we decide this issue in view of the significant public interest in determining whether juveniles determined to be dangerous may be held in pretrial detention without bail. We conclude that, for the reasons stated in Commonwealth v. Mendonza and Commonwealth v. Callender, "it is entirely appropriate that we proceed to adjudicate [this] claims 1." Ante 771, 777 (1996). We conclude that G. L. c. 276, s. 58A, applies to juveniles.

We start with the proposition that where the statutory language is clear, the courts must give effect to the plain and ordinary meaning of the language. Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 537-538 (1992), and cases cited. Id. See Rambert v. Commonwealth, 389 Mass. 771, 773 (1983) ("The language of a statute is not to be enlarged or limited by construction unless its object and plain meaning require it").

General Laws c. 276, s. 58A (1) (1994 ed.), provides: "The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force . . ." (emphasis added). General Laws c. 276, s. 58A (2) (1994 ed.), provides: "Upon the appearance before a superior court or district court judge of an individual charged with an offense listed in subsection (1) and upon the motion of the commonwealth, the judicial officer shall hold a hearing pursuant to subsection (5)" (emphasis added). By its express terms, s. 58A applies to

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any "individual" charged with "a felony offense." [Note 4] In the absence of any statutory language indicating that the word "individual" excludes juveniles, juveniles are properly within the word "individual." See Commonwealth v. Shipps, 399 Mass. 820, 832-833 (1987) (construing statutory term "whoever" to include juveniles as individuals subject to fingerprinting and photographing under G. L. c. 263, s. 1A).

Section 58A also expressly states that it applies on an individual's appearance before a Superior Court or District Court judge. Absent an explicit provision excluding juvenile delinquency proceedings, the term "District Court" is used in the General Laws to mean that a statute is applicable to juvenile proceedings in any court, whether it be the juvenile session of a district court or a distinct Juvenile Court. Specifically, G. L. c. 218, s. 59 (1994 ed.), provides that "[e]xcept as otherwise provided by law, the divisions of the juvenile court department shall have and exercise, within their respective jurisdictions, the same powers, duties, and procedure as the divisions of the district court department: and all laws relating to district courts or municipal courts in their respective counties or officials thereof or proceedings therein, shall, so far as applicable, apply to said divisions of the juvenile court department" (emphasis added).

Our procedural rules are consistent with the General Laws in using the term "District Court" to encompass the Juvenile Court Department. Rule 204 of the Special Rules of the District Courts of Massachusetts (1996) provides that the "Rules of the District Courts which are applicable in proceedings against adults shall, so far as pertinent, be applicable in proceedings against children between the ages of seven and seventeen, except as otherwise expressly provided" (emphasis added). See Commonwealth v. Perry P., 418 Mass. 808, 812-813 & n.4 (1994). Also, Mass. R. Crim. P. 1 (b), 378 Mass. 842 (1979), provides that the Massachusetts Rules of Criminal Procedure "govern the procedure in all criminal proceedings in the District Court, in all criminal proceedings in the Superior Court, in all delinquency proceedings in the District

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Court and Superior Court consistent with the General Laws" (emphasis added). There, the term "District Court" is expressly defined as encompassing "all divisions of the District Court Department of the Trial Court, the Boston Municipal Court Department of the Trial Court, and the Juvenile Court Department of the Trial Court, or sessions thereof for holding court." Mass. R. Crim. P. 2 (b) (7), 378 Mass. 844 (1979). The General Laws and these procedural rules buttress our conclusion that, had the Legislature intended to preclude the application of G. L. c. 276, s. 58A, to juvenile offenders, it would have expressly excluded juveniles within the text of the statute. Thus, the plain and ordinary language of the statute compels the conclusion that s. 58A applies to all individuals charged with a felony offense, including juveniles.

The juvenile argues that the application of s. 58A to juveniles is precluded by G. L. c. 119, s. 68 (1994 ed.), which provides for the pretrial detention of juveniles within the chapter of the General Laws governing juvenile delinquency proceedings. We disagree. Section 68 of G. L. c. 119 expressly provides for the pretrial detention of juveniles only in those cases in which a juvenile is unable to furnish the amount of bail set, or in those cases in which a juvenile offender is already in the custody of the Department of Social Services. In contrast, s. 58A provides for the preventive detention, without the benefit of bail, of juveniles who are charged with a serious felony and adjudicated "dangerous" offenders. Although the statutes address similar matters, s. 58A simply provides for pretrial detention in circumstances which are not addressed by G. L. c. 119, s. 68. Thus, the two statutes are not inconsistent.

We also disagree with the juvenile's contention that s. 58A is at odds with the rehabilitative goals of the juvenile justice system. While children brought before the court "shall be treated, not as criminals, but as children in need of aid, encouragement and guidance," G. L. c. 119, s. 53 (1994 ed.), the pretrial detention of juveniles pursuant to G. L. c. 276, s. 58A, in no way supplants this rehabilitative goal. Section 58A is simply a measure intended to protect the public from the violent acts of a dangerous individual, whether a juvenile or an adult, while that individual's trial is pending. As applied to juveniles, s. 58A merely provides a mechanism by which to hold a juvenile until after delinquency proceedings

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decide whether the child is delinquent and needs rehabilitation.

Judgment shall be entered in the county court dismissing the action as moot.

So ordered.


[Note 1] Shortly after the juvenile's arraignment on June 7, 1995, G. L. c. 276, s. 58A, was amended. St. 1995, c. 39, s. 13, effective June 21, 1995. The amendment does not affect the question presented, and we consider the statute as it appeared at the time of the juvenile's arraignment.

[Note 2] The complaint charging armed assault with intent to rob was dismissed for lack of probable cause. The Commonwealth then charged the defendant with armed assault with intent to murder.

[Note 3] The juvenile has since moved to dismiss the complaints or, alternatively, requested a finding of not delinquent on double jeopardy grounds. The.se motions were pending at the time of oral argument.

[Note 4] The juvenile argues that s. 58A cannot apply to juveniles because the Legislature has expressly provided that "[p]roceedings against children . . . shall not be deemed criminal proceedings." See G. L. c. 119, s. 53 (1994 ed.). However, although the juvenile cannot be adjudged a "felon" because he is a juvenile. he is nonetheless charged with a "felony offense."