Com. v. Young

• Decision Date: 04 May 2009
• Docket Number: SJC-10147.
• Citation: 905 N.E.2d 90,453 Mass. 707
• Parties: COMMONWEALTH v. Thomas YOUNG & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

905 N.E.2d 90

453 Mass. 707

COMMONWEALTH v. Thomas YOUNG & another.¹

SJC-10147.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 5, 2009.

Decided May 4, 2009.

Rachel J. Eisenhaure, Assistant District Attorney (C. Samuel Sutter, District Attorney, with her) for the Commonwealth.

Willie J. Davis, Boston, for Thomas Young.

Paul W. Patten for Jermaine Rodrigues.

Murray A. Kohn, Committee for Public Counsel Services, Holden, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

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

SPINA, J.

These cases, here on a reservation and report by a single justice of this court, require us to decide whether unlicensed possession of a firearm qualifies as a predicate offense pursuant to G.L. c. 276, § 58A, which allows the Commonwealth to seek pretrial detention of individuals accused of certain serious offenses. We conclude that it does not.²

1. Facts. The defendants, in unrelated cases, were both charged with, inter alia, unlicensed possession of a firearm. See G.L. c. 269, § 10 (a).³ The Commonwealth moved to detain them pursuant to G.L. c. 276, § 58A (§ 58A). A judge in the Superior Court presiding over both § 58A proceedings ruled that unlicensed possession of a firearm was not a predicate offense for purposes of § 58A. We summarize the relevant procedural history with respect to each defendant.⁴

Jermaine Rodrigues. On September 27, 2007, a grand jury in Bristol County indicted Rodrigues for (1) unlawful possession of a large capacity weapon, see G.L. c. 269, § 10 (m); (2) unlawful possession of a large capacity feeding device, see G.L. c. 269, § 10 (m); (3) unlawful possession of a firearm whose serial number had been removed, defaced, altered, obliterated, or mutilated in any manner, see G.L. c. 269, § 11C; (4) unlawful possession of ammunition without a firearm identification (FID) card, see G.L. c. 269, § 10 (h) (1); (5) receiving stolen property, see G.L. c. 266, § 60; (6) unlawful possession of a firearm, see G.L. c. 269, § 10 (a); and (7) unlawful possession of a loaded firearm, see G.L. c. 269, § 10 (n).

On October 30, 2007, the Commonwealth, citing all seven indictments, moved to detain the defendant pursuant to § 58A.⁵ A judge in the Superior Court denied the motion on the ground that "possession without more does not establish clear and convincing evidence of dangerousness" pursuant to G.L. c. 276, § 58A.

Thomas Young. On October 22, 2007, a complaint issued in the Taunton Division of the District Court Department charging Thomas Young with (1) two counts of possession of a firearm without an FID card, see G.L. c. 269 § 10 (h); (2) possession of a class D substance, see G.L. c. 94C, § 34; (3) conspiracy to sell drugs, see G.L. c. 94C, § 40; (4) distribution of a class B substance, see G.L. c. 94C, § 32A (a); (5) failure to yield at an intersection, see G.L. c. 89, § 8; (6) failure to wear a seat belt, see G.L. c. 90, § 13A; and (7) receiving stolen property, see G.L. c. 266, § 60. On October 24, 2007, another complaint issued in the District Court charging Young with (1) carrying a firearm without a license, see G.L. c. 269, § 10 (a); (2) possession of a firearm without an FID card, see G.L. c. 269, § 10 (h); and (3) carrying a loaded firearm without a license, see G.L. c. 269, § 10 (n).

After a § 58A hearing on October 26, 2007, a judge in the District Court, citing "firearm w/o license, FID" as predicate offenses, ordered that Young be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed by the same judge that presided over Rodrigues's § 58A hearing and bail was set at $7,000 cash.

The Commonwealth subsequently sought relief in both cases from a single justice of this court pursuant to G.L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with "any other felony that by its nature involves a substantial risk that physical force against the person of another may result." § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court.

2. Statutory background. Section 58A "sets out a comprehensive scheme of measures available with respect to arrested persons charged with crime." Mendonza v. Commonwealth, 423 Mass. 771, 774, 673 N.E.2d 22 (1996). Among the measures described in § 58A is pretrial detention. The pretrial detention regime in § 58A "is explicitly `predictive' and `seek[s] systematically to identify those who may present a danger to society and to incapacitate them before that danger may be realized.' "Id. at 780, 673 N.E.2d 22, quoting Opinion of the Justices, 423 Mass. 1201, 1219, 668 N.E.2d 738 (1996). Section 58A (1) provides:

"The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result, including the crime of burglary and arson whether or not a person has been placed at risk thereof, or a violation of an order pursuant to [G.L. c. 208, § 18, § 34B, or § 34C; G.L. c. 209, § 32; G.L. c. 209A, § 3, § 4, or § 5; or G.L. c. 209C, § 15 or § 20], or arrested and charged with a misdemeanor or felony involving abuse as defined in [G.L. c. 209A, § 1,] or while an order of protection issued under said [G.L. c. 209A] was in effect against said person, an offense for which a mandatory minimum term of three years or more is prescribed in [G.L. c. 94C], arrested and charged with a violation of [G.L. c. 268, § 13B,] or a third or subsequent conviction for a violation of [G.L. c. 90, § 24]" (emphasis added).

If an individual has been charged with a predicate offense, a hearing may be held to determine whether the individual should, pending trial, be released on personal recognizance without surety, released on conditions of release set forth in § 58A (2)(A)-(B), or detained. § 58A (2). The 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." § 58A (4).⁶ Pretrial detention may be ordered only if the judge, after considering a number of statutorily prescribed factors to assess an individual's dangerousness,⁷ finds that the Commonwealth has established by clear and convincing evidence that "no conditions of release will reasonably assure the safety of any other person or the community." § 58A (3).

An individual detained under § 58A "shall be brought to a trial as soon as reasonably possible, but in absence of good cause, the person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36(b)(2) [378 Mass. 909 (1979)]." Id. An individual ordered detained by a judge in the District Court may petition the Superior Court for review of that order. § 58A (7). Review of a Superior Court pretrial detention decision may be had by application to a single justice of this court. Mendonza v. Commonwealth, supra at 775, 673 N.E.2d 22.

3. Discussion. The Commonwealth initially contends that the judge in the Superior Court erred in Rodrigues's case in concluding that "possession without more does not establish clear and convincing evidence of dangerousness" because he conflated the predicate offense inquiry, see § 58A (1), with the individualized dangerousness determination under § 58A (5).

The threshold question in every case is whether the defendant has committed a predicate offense under § 58A (1), thereby triggering the Commonwealth's right to move for a § 58A hearing. See § 58A (4) ("When a person is held under arrest for an offense listed in subsection [1] and upon a motion by the commonwealth, the judge shall hold a hearing ..."). We agree with the Commonwealth that § 58A requires a categorical approach to determining whether a felony is a predicate offense, independent of the particular facts giving rise to a complaint or indictment. The statute's plain language directs courts to focus on whether a felony offense, if not one of the specifically listed crimes, "has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another" or "by its nature involves a substantial risk that physical force against the person of another may result" (emphasis added). § 58A (1). These statutory alternatives demonstrate that the predicate offense inquiry focuses on the elements of the crime, rather than the particular facts underlying a complaint or indictment.

This approach comports with the analysis utilized under the Federal Bail Reform Act, 18 U.S.C. § 3142 (2000). See United States v. Singleton, 182 F.3d 7, 10-12 (D.C.Cir.1999) (offenses eligible for pretrial detention hearing categorically ascertainable by "reference to their elements"). See also United States v. Bowers, 432 F.3d 518, 521 (3d Cir.2005) (same); United States v. Johnson, 399 F.3d 1297, 1301 (11th Cir.2005) (same); United States v. Rogers, 371 F.3d 1225, 1228 n. 5 (10th Cir.2004) (same).⁸ Consequently, an individualized dangerousness determination based on, inter alia, the factual predicate giving rise to the complaint or indictment, see § 58A (5), is appropriate only if the predicate offense hurdle has been cleared. See United States v. Byrd, 969 F.2d 106, 109-110 (5th Cir.1992) (defendant could not be detained unless accused of predicate offense despite dangerousness); United States v. Ploof, 851 F.2d 7, 11 (1st Cir.1988) ("where detention is based on dangerousness grounds, it can be ordered only in ca...