482 Mass. 817

April 2, 2019 - August 13, 2019

Suffolk County

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Records And Briefs:


Pretrial Detention. Practice, Criminal, Arraignment. Arrest. Statute, Construction.

In circumstances where a criminal defendant who had been arrested and charged by criminal complaint in the District Court, and who had been released from custody with certain conditions, subsequently was indicted for the same events underlying the complaint and appeared for arraignment before a Superior Court judge pursuant to a summons, with no new arrest warrant issued, the judge had the authority under G. L. c. 276, § 58A, to conduct a dangerousness hearing, as the defendant's appearance constituted his "first appearance" before the court. [819-822]

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 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. [Note 1]

1. Background. In December of 2017, the defendant was arrested and charged by criminal complaint in the District Court

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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 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. [Note 2] The

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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." [Note 3] See G. L. c. 276, § 58A (3). Approximately ten months later, the defendant filed an emergency petition for 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. [Note 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

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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).

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 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

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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 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 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

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2018). [Note 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 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.


[Note 1] We acknowledge the amicus letter submitted by the Committee for Public Counsel Services.

[Note 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, 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 . . .").

[Note 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."

[Note 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).

[Note 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.