Com. v. Lester L.

• Decision Date: 07 October 2005
• Citation: Com. v. Lester L., 835 N.E.2d 244, 445 Mass. 250 (Mass. 2005)
• Parties: COMMONWEALTH v. LESTER L., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

835 N.E.2d 244

445 Mass. 250

COMMONWEALTH v.LESTER L., a juvenile.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 6, 2005.

Decided October 7, 2005.

COPYRIGHT MATERIAL OMITTED

Jane Davidson Montori, Assistant District Attorney, Springfield, for the Commonwealth.

Erica E. Cushna for the juvenile.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

This matter, here on a reservation and report by a single justice of this court on the Commonwealth's petition under G.L. c. 211, § 3, requires us to interpret the provision in G.L. c. 276, § 58A, that authorizes limited continuances of dangerousness hearings for pretrial detention.After a Juvenile Court judge granted the Commonwealth's request to continue a hearing for pretrial detention, she released the juvenile on bail pending that hearing, prompting the Commonwealth to file the instant petition.The single justice reserved and reported the following questions to the full court:

(1) How may the Commonwealth make a showing of probable cause required by G.L. c. 276, § 58A (4)(i.e., may it rely on the issuance of the complaint, or may the prosecutor read from the police report)?

(2) What rights does a defendant have at such a continuance hearing (i.e., may the defendant cross-examine witnesses or present evidence)?

(3) Upon a showing of probable cause by the Commonwealth, may a judge order a defendant held on bail or release him on his personal recognizance?

We conclude that the Commonwealth may show probable cause by a complaint issued in accordance with court rules or by reading the police report to the judge; that the continuance determination may be made after a hearing where a defendant is represented by counsel with the opportunity to make representations and arguments before the court, but without a right to cross-examine witnesses or present evidence; and that such a defendant must be detained pending a dangerousness hearing on the grant of a continuance.

Facts.On December 8, 2004, the Al Baqi mosque in Springfield was burglarized, vandalized, and set on fire.The fifteen year old juvenile was one of several people arrested for the incident on December 14, 2004.He was arrested without a warrant.¹On the same day, an assistant clerk of the Springfield Division of the Juvenile Court Department issued delinquency complaints against the juvenile for burning a building or structure, breaking and entering a building in the daytime with the intent to commit a felony, and larceny of property over $250.Neither the complaint papers themselves nor any other portion of the record contains a written determination that probable cause was found prior to the issuance of the complaints.

The juvenile appeared before a Juvenile Court judge for arraignment at approximately 4:20 P.M. on December 14, 2004, represented by appointed counsel.At this first appearance, the Commonwealth moved pursuant to G.L. c. 276, § 58A, to detain the juvenile until trial, and simultaneously requested a continuance of the detention hearing.²SeeG.L. c. 276, § 58A (4).In response to the juvenile's request to conduct the dangerousness hearing immediately, the judge responded that it was too late to conduct the hearing that day.³

Despite the hour, the judge permitted both counsel to be heard on the subject of a continuance.They argued about the legal requirements for continuing a dangerousness hearing, the propriety of release pending the hearing, and the juvenile's prior record as it related to signs of dangerousness.The assistant district attorney read from the police report and explained her reasons for seeking pretrial detention.The juvenile's counsel contended that the police report mischaracterized the juvenile's statement to the police.

After the presentation by counsel, the judge found probable cause to arrest, seeG.L. c. 276, § 58A (4)("During a continuance, the individual shall be detained upon a showing that there existed probable cause to arrest the person"), as well as good cause for a continuance, seeMendonza v. Commonwealth,423 Mass. 771, 792, 673 N.E.2d 22(1996)("The sensible reading of the continuance provision is to allow such a three-day continuance at the request of the Commonwealth only if the Commonwealth can show good cause for it").The judge granted a three-day continuance of the pretrial detention hearing, but released the juvenile on bail pending the hearing.

Mootness.This case is moot.The Commonwealth eventually nolle prossed the arson charge, and pretrial probation (agreed on by the parties) was imposed on the other charges, so the juvenile no longer faces the prospect of pretrial detention pursuant to G.L. c. 276, § 58A, and the three-day continuance to conduct a dangerousness hearing pursuant to § 58A (4) has long since passed.Nevertheless, review of the reported questions by this court is appropriate.The operation of the § 58A (4) continuance provision is of recurring importance in the Commonwealth yet the very short time during which a continuance can be considered and granted means that questions concerning the process would almost certainly evade review.See, e.g., Mendonza v. Commonwealth, supra at 777, 673 N.E.2d 22;Aime v. Commonwealth,414 Mass. 667, 670, 611 N.E.2d 204(1993).

Pretrial detention.General Laws c. 276, § 58A, allows the Commonwealth to move for pretrial detention of a person charged with certain enumerated felonies and other offenses, including arson, involving the use, or threatened use, of violence, or the violation of protective orders.G.L. c. 276, § 58A (1).We have previously upheld the statute against a facial due process challenge, Mendonza v. Commonwealth, supra at 773, 673 N.E.2d 22, and we have held it applicable to juveniles appearing in delinquency proceedings, Victor V. v. Commonwealth,423 Mass. 793, 794-795, 672 N.E.2d 529(1996).A judge may impose such pretrial detention (for up to ninety days unless good cause exists to extend the detention) only after a hearing at which the judge determines by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other persons or the community.§ 58A (3).In making such a determination, the judge must consider, inter alia, the nature and seriousness of the danger posed by the arrested person if released, the nature and penalties of the offense charged, family ties, employment, prior record and history of mental illness, and whether the person is on bail for other charges.§ 58A (5).

The statute sets forth the procedural requirements of the dangerousness hearing.The defendant has the right to be present and to be represented by counsel.The defendant also has the right to testify, to present witnesses, to provide additional information to the court, and to cross-examine the Commonwealth's witnesses.§ 58A (4).However, the statute specifies that the rules of evidence applicable in a criminal trial do not apply at the hearing.Id.

The portion of the statute relevant to this case provides that the dangerousness hearing shall be held immediately, but also provides for the possibility of a brief continuance.In part, § 58A (4) states:

"The [dangerousness] hearing shall be held immediately upon the person's first appearance before the court unless that person, or the attorney for the commonwealth, seeks a continuance.Except for good cause, a continuance on motion of the person may not exceed seven days, and a continuance on motion of the attorney for the commonwealth may not exceed three business days.During a continuance, the individual shall be detained upon a showing that there existed probable cause to arrest the person."

We have previously construed this continuance provision as allowing any continuance "at the request of the Commonwealth only if the Commonwealth can show good cause" for a continuance as well as probable cause to arrest.Mendonza v. Commonwealth, supra at 790, 792, 673 N.E.2d 22.The Mendonza court also stated that "[t]he judge should then make a specific finding that such [good] cause has been shown and what such [good] cause is."Id. at 792, 673 N.E.2d 22.We must now determine how the showing of probable cause may be made; what sort of hearing is required at the continuance phase; and whether the judge must order the defendant held during the continuance period.

Discussion.1.As to the manner in which the Commonwealth may make the showing of probable cause to arrest at the continuance hearing, the Commonwealth contends that the issuance of a complaint satisfies its burden, and that, alternatively its attorney may make the showing by reading a police report to the judge.We agree.

General Laws c. 276, § 58A (4), provides that "[d]uring a continuance, the individual shall be detained upon a showing that there existed probable cause to arrest the person"(emphasis added)."[P]robable cause [to arrest] exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense."Commonwealth v. Santaliz,413 Mass. 238, 241, 596 N.E.2d 337(1992), quotingCommonwealth v. Storey,378 Mass. 312, 321, 391 N.E.2d 898(1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813(1980).A determination of probable cause to arrest may be based on hearsay evidence.Myers v. Commonwealth,363 Mass. 843, 849 n. 6, 298 N.E.2d 819(1973).Because this definition and the associated evidentiary requirements had been established by 1994, the year in which the continuance provision was added, seeSt.1994, c. 68, § 6, we presume that the Legislature was aware when it selected the probable cause to arrest standard that it could be satisfied by hearsay evidence.See, e.g., Commonwealth v. Brown,431 Mass. 772, 777, 730 N.E.2d 297(2000);Opinion of the Justices,408 Mass. 1215, 1222, 563...