Querubin v. Commonwealth

• Decision Date: 06 May 2003
• Citation: 440 Mass. 108,795 NE 2d 534
• Parties: HECTOR QUERUBIN vs. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 108

795 NE 2d 534

HECTOR QUERUBIN vs. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 6, 2003.

September 9, 2003.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Andrew D'Angelo (Kathleen M. O'Connell & Reinaldo Gonzalez with him) for Hector Querubin.

Brian J.S. Cullen, Assistant District Attorney, for the Commonwealth.

SPINA, J.

In this case, we consider the conditions for holding a defendant, who poses a serious flight risk, without bail, prior to trial, pursuant to G.L. c. 276, § 57. A judge in the Superior Court denied a motion of Hector Querubin (defendant) to be admitted to bail under this statutory provision. The defendant filed a petition for relief in the county court pursuant to G.L. c. 211, § 3, challenging the judge's decision. A single justice of this court reserved and reported the case, without decision, to the full court. We now affirm.

1. Background. The facts, as set forth by the parties in a joint statement of facts, are as follows. On August 9, 2000, State Trooper Mark Marron and members of a joint task force went to an apartment in Revere to arrest the defendant and one William Serna on default warrants. When Trooper Marron knocked on the door to the apartment, he heard footsteps inside. Moments later, Detective Michael Cauley of the Massachusetts Bay Transportation Authority (MBTA) police, who was stationed at the back stairwell of the apartment complex, saw the defendant and Serna open the door. They paused in the entrance and then ran back into the apartment. The two men apparently jumped out a window, evading the police as Detective Cauley awaited backup before entering the apartment. Police officers saw Serna fleeing down the street and gave chase. Just before he was apprehended, Serna threw a foil ball over a fence near an MBTA station. The police recovered the package and found that it contained 27.37 grams of a powder that was sixty-four per cent cocaine. Serna was arrested. The defendant, however, escaped.

That evening, the police returned to the apartment from which the defendant had fled to execute a search warrant. They recovered approximately twenty-two kilograms of seventy-nine per cent pure cocaine. Trooper Marron estimated that the cocaine had a street value of approximately $2.2 million. The police also recovered papers in the name of Teodoro Ospina, an alias known by the police to have been used by the defendant.

On August 28, 2000, a grand jury indicted the defendant on a charge of trafficking in cocaine in an amount exceeding 200 grams, in violation of G.L. c. 94C, § 32E. A summons was issued for his appearance, but the defendant failed to appear, and a default warrant was issued. On May 9, 2002, border patrol officers in Las Cruces, New Mexico, apprehended the defendant as he attempted to flee into Mexico. He was returned to Massachusetts.

On June 18, 2002, the defendant was arraigned before a magistrate who referred the matter to a judge in the Superior Court. The Commonwealth, pursuant to G.L. c. 276, § 57, and Serna v. Commonwealth, 437 Mass. 1003 (2002), moved to have the defendant held without bail. It asserted that given the strength of the case against him, the seriousness of the charges, the defendant's initial flight from his apartment building, his subsequent effort to flee the country, and his lengthy default, the judge could not be reasonably assured that the defendant would appear to face the charge against him if bail were set. The defendant objected on the ground that G.L. c. 276, § 57, was unconstitutional because it violated his due process rights under the United States Constitution and the Massachusetts Declaration of Rights. The defendant also objected to the constitutionality of § 57 based on Aime v. Commonwealth, 414 Mass. 667 (1993). The judge gave the defendant an opportunity to continue the case for an evidentiary hearing. The defendant objected, arguing that § 57 did not authorize such a hearing and requesting release on reasonable bail. He asserted that the weaknesses in the Commonwealth's case, the lack of any connection between the defendant and the apartment, the fact that the defendant did not have a criminal record, the defendant's claimed right to political asylum in this country,¹ and the defendant's assertion of a meritorious suppression motion² warranted reasonable bail. The judge allowed the Commonwealth's motion and detained the defendant, without bail, pending trial.

2. Discussion. The thrust of the defendant's argument is that G.L. c. 276, § 57, violates the procedural and substantive due process provisions of the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He contends that G.L. c. 276, § 57, includes none of the due process protections afforded by G.L. c. 276, §§ 58 and 58A, or by the Federal Bail Reform Act of 1984, 18 U.S.C. § 3142 (2000). In particular, the defendant points out that G.L. c. 276, § 57, does not expressly provide that defendants may testify on their own behalf at bail hearings, call witnesses, or cross-examine adverse witnesses. Moreover, he asserts that the standard of proof by which a judge may hold a defendant without bail prior to trial is "amorphous" because it is simply left to the "discretion" of each individual judge. The defendant further contends that the denial of bail under G.L. c. 276, § 57, unduly infringes on his right to liberty and freedom from physical restraint, particularly where he has not been charged with a capital crime.

General Laws c. 276, § 57, provides, in pertinent part, as follows:

"A justice of the supreme judicial or superior court . . . upon application of a prisoner or witness held under arrest or committed . . . may inquire into the case and admit such prisoner or witness to bail if he determines that such release will reasonably assure the appearance of the person before the court and will not endanger the safety of any other person or the community . . . ."

We have held that this statutory provision, rather than G. L. c. 276, § 58, is applicable to the setting of bail in the Superior Court.³ See Serna v. Commonwealth, supra at 1003; Commesso v. Commonwealth, 369 Mass. 368, 372 (1975) (G. L. c. 276, § 57, authorizes Superior Court judge to admit "prisoner or witness" to bail). We are only concerned here with bail pursuant to G. L. c. 276, § 57, as it relates to considerations of flight, not dangerousness. The Commonwealth has not asserted that the release of the defendant on bail would endanger the safety of any members of the community.

(a) Substantive due process. "So-called `substantive due process' prevents the government from engaging in conduct that `shocks the conscience,' Rochin v. California, 342 U.S. 165, 172 (1952), or interferes with rights `implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325-326 (1937)." United States v. Salerno, 481 U.S. 739, 746 (1987). "In substantive due process analysis, the nature of the individual interest at stake determines the standard of review that courts apply when deciding whether a challenged statute meets the requirements of the due process clause. Where a right deemed to be `fundamental' is involved, courts `must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation,' Moore v. East Cleveland, 431 U.S. 494, 499 (1977), and typically will uphold only those statutes that are narrowly tailored to further a legitimate and compelling governmental interest." Aime v. Commonwealth, supra at 673, citing United States v. Salerno, supra at 748-751.

Freedom from physical restraint is a fundamental right. See Commonwealth v. Bruno, 432 Mass. 489, 503 (2000). However, a defendant does not have a constitutional right to be released on bail prior to trial.⁴ See United States v. Salerno, supra at 748-751, 753-755 (no absolute right to bail); Mendonza v. Commonwealth, 423 Mass. 771, 782 n.4 (1996) ("there has never been a right to bail in capital cases"). See also K.B. Smith, Criminal Practice and Procedure § 481 (2d ed. 1983) ("There is no provision in the United States Constitution or the Constitution of Massachusetts as to the right to bail of a person accused of a crime"). "[T]he Government has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences, [and] confinement of such persons pending trial is a legitimate means of furthering that interest." Bell v. Wolfish, 441 U.S. 520, 534 (1979). See United States v. Salerno, supra at 749 ("an arrestee may be incarcerated until trial if he presents a risk of flight"); Commonwealth v. Flaherty, 384 Mass. 802, 803 (1981) (history of escapes and defaults would justify denying bail where defendant charged with murder in the first degree).

The defendant argues that G.L. c. 276, § 57, lacks ascertainable standards that limit a judge's discretion to considerations of flight when setting bail. We disagree. As it is applicable to this case, § 57 merely codifies the inherent authority of a Superior Court judge, under common law, to deny bail where, as here, the defendant poses a serious flight risk.⁵ Under common law, the factors that a judge may properly consider when setting bail are well known.

"The right to be bailed in certain cases is as old as the law of England itself. . . ." 1 Stephen, History of the Criminal Law of England 233 (1883). See Commonwealth v. Baker, 343 Mass. 162, 165-168 (1961) (discussion of history of bail). The essential purpose of bail is to secure the presence of a defendant at trial to ensure that, if the defendant is guilty, justice will be served. See Commonwealth v. Ray, 435 Mass. 249, 255 n.12 (2001), citing Commonwealth v. Stuyvesant Ins. Co., 366 Mass. 611, 614 (1975); 4 W. Blackstone, Commentaries *294-295. See also L.B....