Com. v. Perito
| Decision Date | 05 May 1994 |
| Citation | 417 Mass. 674,632 N.E.2d 1190 |
| Parties | COMMONWEALTH v. Vincent PERITO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William M. Leonard, North Scituate, for defendant.
Nancy D. Adams, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ. O'CONNOR, Justice.
The defendant appeals from four armed robbery convictions. He claims error in (1) the denial of his pretrial motion to dismiss the robbery indictments or to suppress photograph and fingerprint evidence as a remedy for an allegedly illegal detention; (2) the denial of his pretrial motion to dismiss one of the robbery indictments as a remedy for the Commonwealth's failure to preserve potentially exculpatory evidence; and (3) the exclusion at trial of evidence of other armed robberies. We transferred the case to this court on our own initiative to consider whether a District Court judge may set bail in a defendant's absence and order him committed to a house of correction pending a postponed arraignment when medical necessity precludes his immediate appearance in court. We conclude that the defendant's right to participate in his bail hearing and his right to a prompt initial court appearance were violated by such a practice. See G.L. c. 276, § 58 (1992 ed.); Mass.R.Crim.P. 7(a)(1), as amended, 397 Mass. 1226 (1986). However, we also conclude that there is no basis in this case for the relief the defendant requests. We find no merit in the defendant's other two allegations of error. Accordingly, we affirm the convictions.
We first consider whether there was an illegal detention which required dismissal of the robbery indictments or suppression of photograph and fingerprint evidence. The motion judge found the following facts.
At approximately 11:00 A.M. on Tuesday, February 21, 1989, following an automobile chase which terminated when the defendant's vehicle struck a guard rail, the defendant was arrested for receiving a stolen motor vehicle, receiving a stolen credit card, driving to endanger, failing to stop for a police officer, and attaching plates. The defendant was not at that time a suspect in any armed robbery investigation. The injured defendant was taken to a hospital, and bail in the amount of $2,500,000 surety or $250,000 cash was set later that day by a judge at the Wareham District Court while the defendant, who was unrepresented at the bail hearing, was in the hospital. The defendant's case was continued until March 3, and the judge issued a mittimus ordering that the defendant be committed to the Plymouth County house of correction pending his postponed appearance.
At approximately 12:00 P.M. the following day, February 22, the sheriff's department transported the defendant from the hospital to the house of correction where he was fingerprinted and photographed pursuant to the facility's standard admissions procedure. Later that day, the staff psychologist at the house of correction examined the defendant, found the defendant to be suicidal, and recommended that he be committed to Bridgewater State Hospital. The following morning, after he set fire to his own cell, the defendant was examined by a second doctor who concurred in the first doctor's recommendation and filed a request for commitment with the court. Pursuant to G.L. c. 123, § 18(a), a District Court judge adopted the recommendation and ordered that the defendant be committed to Bridgewater for a period of observation not to exceed thirty days.
The defendant was first brought to court on March 27, after being released from Bridgewater, and was arraigned at that time on the charges arising out of the February 21 incident. The defendant was also arraigned, following his release from Bridgewater, on charges for various armed robberies to which the police had connected him using the photographs and fingerprints taken at the house of correction. The charges arising out of the February 21 incident were subsequently dismissed.
The defendant contends that his detention from February 21 to March 27 was illegal because bail was set in his absence and because he was not brought to court for an initial appearance. In response, the Commonwealth argues that the delay in bringing the defendant to court was reasonable under the totality of the circumstances, and therefore lawful, since the defendant's own behavior in attempting to flee the arresting officer caused his hospitalization and therefore his absence from court when bail was set. According to the Commonwealth, whenever a defendant is unable to be present at arraignment for medical reasons, the standard practice in the Wareham District Court is to set bail in his absence and continue the case ten days. The delay beyond ten days in this case was reasonable, says the Commonwealth, because of the subsequent necessity of committing the defendant to Bridgewater for observation.
We agree with the defendant that the practice followed by the District Court judge violated the defendant's right to participate in his bail hearing and his right to a prompt initial court appearance, and that, consequently, the defendant was illegally detained. However, for the reasons stated below, there is no basis for dismissing the indictments or suppressing the photographic and fingerprint evidence.
The Massachusetts bail statute, G.L. c. 276, § 58 (1992 ed.), reads in pertinent part:
"A justice or a clerk or assistant clerk of the district court, a bail commissioner or master in chancery ... shall ... hold a hearing in which the defendant and his counsel, if any, may participate and inquire into the case and shall admit such person to bail on his personal recognizance without surety unless said justice, clerk or assistant clerk, bail commissioner or master in chancery determines ... that such a release will not reasonably assure the appearance of the prisoner before the court" (emphasis added). 1
As we have previously stated, "[o]ur Legislature intended § 58 to protect the rights of [a] defendant by establishing a presumption that he or she will be admitted to bail on personal recognizance without surety and by delineating carefully the circumstances under which bail may be denied." Delaney v. Commonwealth, 415 Mass. 490, 495, 614 N.E.2d 672 (1993). This presumption, like the preference expressed in Mass.R.Crim.P. 6(a), 378 Mass. 852 (1979), for issuing a summons instead of an arrest warrant, "is bottomed on the belief that defendants should be burdened with the fewest restrictions on their pretrial liberty that will adequately assure their presence at trial." Reporters' Notes to the Mass.R.Crim.P. 6, Mass.Ann.Laws, Rules of Criminal Procedure at 94 (Law.Coop.1979).
Section 58 explicitly grants a defendant and his counsel, if any, the right to participate in his bail hearing. This participation is crucial, in light of the Commonwealth's policy of limiting pretrial restrictions on liberty, because it provides a bail official with an opportunity to question the defendant "in order to establish a sufficient basis for a determination of the appropriate conditions of his release." Reporters' Notes to Mass.R.Crim.P. 6, supra. In the instant case, the defendant's right to participate in his bail hearing was violated since bail was set without his participation.
As the Commonwealth observes, a defendant may be admitted to bail out of court. (Footnote omitted.) Quinn v. State Ethics Comm'n, 401 Mass. 210, 212, 516 N.E.2d 124 (1987). Contrary to the Commonwealth's suggestion, however, the present situation is not analogous to the alternative procedures, which are used when the court is closed, to set bail until the defendant can be brought before a judge. A defendant would be present at an out-of-court bail hearing and therefore able to participate. General Laws c. 276, § 61 (1992 ed.), provides that "[a] person authorized to take bail [out of court] shall take such bail in the presence of the person to be bailed."
In addition to granting a defendant the right to participate in his bail hearing, § 58 directs that a defendant who has not been "released on his personal recognizance without surety [through an out of court bail hearing] shall forthwith be brought before the next session of the district court for a review of the order to recognize in accordance with the standards set forth in [§ 58]." Similarly, Mass.R.Crim.P. 7(a)(1), as amended, 397 Mass. 1226 (1986), reads, in pertinent part:
Thus, rule 7(a)(1) and c. 276, § 58, require a defendant, who has not previously been released from custody, to be brought to court for an initial appearance at...
To continue reading
Request your trial
-
Com. v. Rosa
...in determining relevance and prejudice will not be reversed unless justice requires a different result. Commonwealth v. Perito, 417 Mass. 674, 685, 632 N.E.2d 1190 (1994). Commonwealth v. Scott, 408 Mass. 811, 816, 564 N.E.2d 370 In Commonwealth v. Keizer, supra, we concluded that such evid......
-
Com. v. Rosario
...detention and to eliminate the opportunity and incentive for application of improper police pressure. See Commonwealth v. Perito, 417 Mass. 674, 680, 632 N.E.2d 1190 (1994), citing Commonwealth v. Cote, 386 Mass. 354, 361 n. 11, 435 N.E.2d 1047 (1982). The reasonableness of any delay is to ......
-
Com. v. Hunter
...defendant's suppression hearing, the reasonableness of any delay was to be determined by the circumstances. 2 Commonwealth v. Perito, 417 Mass. 674, 680, 632 N.E.2d 1190 (1994). These circumstances include "(1) whether Miranda warnings were given; (2) ... the passage of time between the ill......
-
Commonwealth v. Carr
...proper remedy for the loss of evidence absent a clear abuse of discretion. Commonwealth v. Cintron, supra, citing Commonwealth v. Perito, 417 Mass. 674, 684, 632 N.E.2d 1190 (1994). The defendant maintained that the missing rifle, ammunition, and bullet fragment prevented him from exploring......