429 Mass. 1004

April 7, 1999

David G. Magraw (defendant) appeals from the order of a single justice under G. L. c. 211, s. 3, denying his request for bail pending retrial. In Commonwealth v. Magraw, 426 Mass. 589 (1998), we reversed the defendant's conviction of murder in the first degree, and he is currently being held without bail pending retrial. Although he was admitted to bail prior to his first trial, after his conviction and successful appeal a judge in the Superior Court ordered that he be held without bail.

The defendant argues on appeal that the single justice erred as a matter of law in not restoring the defendant to bail after reversal of his conviction where the only "changed circumstance" was his erroneous conviction. He does not raise any issue of abuse of discretion. There was no error.

The defendant's contention is wrong both as a matter of law and of fact. As a matter of law, changed circumstances have no application to this appeal. The provisions of the bail reform act, G. L. c. 276, s. 58, which apply the concept of changed circumstances to the revision of bail do not apply to bail for a person charged with murder in the first degree. See Abrams v. Commonwealth, 391 Mass. 1019 (1984); Commonwealth v. Flaherty, 384 Mass. 802 (1981). "Since the statute does not apply, the question of bail for a person charged with murder in the first degree is a matter of discretion." Abrams v. Commonwealth, supra, citing Commonwealth v. Carrion, 370 Mass. 408 , 410-411 (1976).

The defendant is mistaken on the facts because more has changed for the defendant than his erroneous conviction. As the single justice noted, one jury rejected his principal defense in the first trial that the victim died from natural causes. Thus, apart from the error that led us to order a new trial, the Commonwealth has a strong case and the defendant has an increased incentive to flee.

The single justice did not err either as a matter of law or discretion in affirming the denial of bail.

Order of the single justice affirmed.

J. W Carney, Jr. (Andrew M. D'Angelo & Kathleen O'Connell with him) for the defendant.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.