ABBOTT A v. Commonwealth

• Decision Date: 20 September 2010
• Docket Number: SJC-10663.
• Citation: Abbott v. Commonwealth, 458 Mass. 24, 933 N.E.2d 936 (Mass. 2010)
• Parties: ABBOTT A., a juvenile v. COMMONWEALTH.
• Court: Supreme Judicial Court of Massachusetts

458 Mass. 24

933 N.E.2d 936

ABBOTT A., a juvenile

v.COMMONWEALTH.

SJC-10663.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued April 7, 2010.

Decided Sept. 20, 2010.

COPYRIGHT MATERIAL OMITTED.

Barbara Kaban(Alisa M. Rosenthal with her) for the juvenile.

Eitan Goldberg, Assistant District Attorney(Catherine Langevin Semel, Assistant District Attorney, with him) for the Commonwealth.

David F. Segadelli, Charlestown, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

Acting on a petition for relief brought by the juvenile pursuant to G.L. c. 211, § 3, a single justice of this court reserved and reported three questions: (1) whether a judge may conduct a dangerousness hearing pursuant to G.L. c. 276, § 58A, where a juvenile has been determined to be legally incompetent; (2) whether, if the § 58A hearing may be held for the juvenile, the Commonwealth may satisfy its burden of proof by relying solely on hearsay evidence, such as police reports and videotapes of police interrogations of codefendants and witnesses, without presenting live testimony; and (3) whether, if the judge orders that the juvenile be detained after the § 58A hearing, the juvenile may be held beyond the statutory maximum period of ninety days if he remains incompetent to stand trial.We answer all three questions in the affirmative, although with important caveats to each as stated herein.¹

Procedural background and facts.On July 22, 2009, the juvenile, a then-fourteen year old male, and five other boys between the ages of eleven and thirteen allegedly attacked and severely beat a man sleeping on a field in a park in Lynn.²The juvenile was arraigned in the Juvenile Court on July 27, and charged as a delinquent child by reason of (1) armed assault with intent to murder, G.L. c. 265, § 18;(2) assault with intent to maim by means of a dangerous weapon causing serious injury, G.L. c. 265, § 14;(3) three complaints of aggravated assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A( c ); and (4) a civil rights violation causing bodily injury, G.L. c. 265, § 37.He pleaded not delinquent to the charges.

At the arraignment, the Commonwealth moved for an order of pretrial detention based on dangerousness, pursuant to G.L. c. 276, § 58A, ³ and for the revocation of the juvenile's bail on other delinquency charges pending against him, pursuant to G.L. c. 276, § 58.^4,5 The juvenile was detained in a temporary Department of Youth Services facility in anticipation of the hearings on the two motions.On August 4, 2009, the juvenile moved to stay the § 58A hearing scheduled for the following day.In his motion, the juvenile argued that the hearing could not proceed because earlier that year, on February 19, 2009, the same court had determined that he was not competent to stand trial in connection with the other delinquency matters.

On August 11, the judge issued a written decision denying the juvenile's motion to stay both the dangerousness and bail revocation hearings.The juvenile petitioned a single justice of this court, pursuant to G.L. c. 211, § 3, for relief from the denial of the motion to stay the dangerousness hearing.On August 21, the single justice denied the petition without a hearing.The juvenile appealed from the judgment of the single justice to this court, and, on November 10, 2009, we held that the juvenile's “attempt to raise the claim at this juncture is premature” and that, “[i]f he receives an adverse ruling after a § 58A hearing, he can seek review at that time, which would include review of the question whether it was appropriate to have held the hearing in the first place.”Abbott A. v. Commonwealth,455 Mass. 1005, 1006, 916 N.E.2d 371(2009).

While the appeal was pending before us, the judge conducted the dangerousness hearing on September 4 and 11, 2009.At the hearing, the Commonwealth did not call any witnesses; rather, it offered in evidence police reports and videotaped police interrogations of the codefendants and other witnesses to the beating.The juvenile did not object to the admission of these exhibits but objected to the Commonwealth's failure to call any witness, which he argued denied any opportunity for cross-examination.⁶After the second day of the hearing, the judge determined, by clear and convincing evidence, that the juvenile was dangerous and that no condition of his release would reasonably assure public safety.After a hearing, on October 20, 2009, the judge ruled that the period of delay arising from the juvenile's incompetency should not be counted in calculating the ninety-day maximum detention period under § 58A.On December 2, 2009, the juvenile filed his second petition for relief, pursuant to G.L. c. 211, § 3, which the single justice reserved and reported.

Discussion.1.May a dangerousness hearing pursuant to G.L. c. 276, § 58A, be conducted where the juvenile has been determined to be legally incompetent?The test for determining the competency to stand trial of a person accused of a crime is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.”Commonwealth v. Hill,375 Mass. 50, 52, 375 N.E.2d 1168(1978), quotingDusky v. United States,362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824(1960).SeeCommonwealth v. Robidoux,450 Mass. 144, 153, 877 N.E.2d 232(2007).“Competency to stand trial requires that the defendant have the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense.”Commonwealth v. L'Abbe,421 Mass. 262, 266, 656 N.E.2d 1242(1995).

Due process under both the Fourteenth Amendment to the United States Constitutionandart. 12 of the Massachusetts Declaration of Rights prohibits the prosecution from proceeding to trial against a criminal defendant or juvenile who has been found incompetent to stand trial.SeeDrope v. Missouri,420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103(1975);Commonwealth v. Robidoux, supra at 152, 877 N.E.2d 232.Due process, however, does not require the cessation of all pretrial proceedings.SeeJackson v. Indiana,406 U.S. 715, 740-741, 92 S.Ct. 1845, 32 L.Ed.2d 435(1972);Commonwealth v. Torres,441 Mass. 499, 502, 806 N.E.2d 895(2004)( Torres );United States v. Magassouba,544 F.3d 387, 413(2d Cir.2008).Due process is not “a technical conception with a fixed content,”Cafeteria & Restaurant Workers Union, Local 473 v. McElroy,367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230(1961), quoting Joint Anti-Fascist Refugee Comm. v. McGrath,341 U.S. 123, 162-163, 71 S.Ct. 624, 95 L.Ed. 817(1951)(Frankfurter, J., concurring), but “varies with context,”Spence v. Gormley,387 Mass. 258, 274, 439 N.E.2d 741(1982), and therefore is a “ ‘flexible’ concept that ‘calls for such procedural protections as the particular situation demands.’ ”Torres, supra at 502, 806 N.E.2d 895, quotingMathews v. Eldridge,424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18(1976).

In deciding whether due process permits a pretrial hearing to proceed where the defendant or juvenile is incompetent, we consider the private interest that will be affected by the pretrial proceeding, the Commonwealth's interest in the outcome of the proceeding, and the risk that the defendant's or juvenile's incompetency during the proceeding will erroneously deprive him or her of his liberty.⁷SeeTorres, supra at 502-503, 806 N.E.2d 895.In Torres, supra at 507, 806 N.E.2d 895, after evaluating these three factors, we concluded that “[c]onducting a bail hearing for a defendant found incompetent to stand trial does not per se violate that defendant's due process rights,” but recognized that “each case may require some assessment by the hearing judge of whether the defendant's mental condition prevents any meaningful communication with counsel, such that the court will be unable to obtain the information necessary to set a proper bail.”

We recognized in Torres that a defendant's interest in a bail proceeding-his freedom from restraint pending trial-was “significant,” as was the Commonwealth's interest in securing the presence of the defendant at trial.Id. at 503, 806 N.E.2d 895.The determining factor, therefore, was the risk of an erroneous deprivation of a defendant's liberty interest, which caused us to “determine how likely it is that a defendant's incompetence to stand trial will result in his bail being set at a meaningfully higher level than it would be if he were competent.”Id. at 503-504, 806 N.E.2d 895.

As to this factor, we considered both “the specific nature of the inquiry undertaken at a bail hearing, as well as the extent and nature of the incompetency.”Id. at 504, 806 N.E.2d 895.With respect to the nature of the inquiry, we noted that “the factors that a judge is to consider when conducting a bail hearing are ‘(1) the nature and circumstances of the offense charged, (2) the accused's family ties, (3) his financial resources, (4) his length of residence in the community, (5) his character and mental condition, (6) his record of convictions and appearances at court proceedings or of any previous flight to avoid prosecution or (7) any failure to appear at any court proceedings.’ ”Id.,quotingQuerubin v. Commonwealth,440 Mass. 108, 115 n. 6, 795 N.E.2d 534(2003).Characterizing these as “ ‘familiar, straightforward, and relatively simple’ factors,”we declared that “[t]he inquiry at a bail proceeding ... where the only issue is the amount of bail that will reasonably assure the defendant's presence at trial involves the presentation of evidence that, in the vast majority of cases, is undisputed, a matter of public record, or readily explained.”Torre...