Commonwealth v. Cabral, SJC-09274 (MA 1/4/2005), SJC-09274
| Decision Date | 04 January 2005 |
| Docket Number | SJC-09274 |
| Citation | 443 Mass. 171 |
| Parties | COMMONWEALTH vs. RYAN J. CABRAL (and thirty-six companion cases 1 ). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bail. Surety. Kidnapping. Assault by Means of a Dangerous Weapon. Assault and Battery by Means of a Dangerous Weapon. Assault and Battery.
Indictments found and returned in the Superior Court Department on July 2, 2002.
A motion to dismiss was heard by John P. Connor, Jr., J., and questions of law were reported by him to the Appeals Court.
The Supreme Judicial Court granted an application for direct appellate review.
Alison R. Bancroft, Assistant District Attorney, for the Commonwealth.
Carlo A. Obligato, Committee for Public Counsel Services (John L. Holgerson, Committee for Public Counsel Services, with him) for the defendants.
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
We granted the defendants' application for direct appellate review of two questions a Superior Court judge reported to the Appeals Court2 in connection with his reconsideration of his earlier decision denying the defendants' motions to dismiss the indictments:
1. Whether the defendants, either acting as a Massachusetts surety posting bail for a principal or acting as agents for that surety, may raise as an affirmative defense that they possess the lawful authority to apprehend, detain, and deliver the principal to the court house?
2. If the surety and his agents have the authority to apprehend, detain, and deliver the principal to the court house, what are the standards for determining whether they acted within the bounds of that authority?
For the reasons discussed below, the answer to Question 1 is "Yes." As to Question 2, a surety3 and his agents may use only such force as is reasonable in the circumstances to apprehend, detain, and deliver the principal to the court house, which shall in any event not exceed the force a police officer would be justified in using to execute an arrest warrant in analogous circumstances. Moreover, any use of force must be preceded by sufficient notice to the principal.
1. Background. The Commonwealth has charged the defendants, a surety and his alleged agents, with kidnapping, G. L. c. 265, § 26; conspiracy to commit kidnapping, G. L. c. 274, § 7; assault by means of a dangerous weapon, G. L. c. 265, § 15B; and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A. In addition, two defendants are charged with assault and three with assault and battery, G. L. c. 265, § 13A (a). The charges stem from the defendants' apprehension, detention, and delivery to Superior Court of a principal to exonerate bail after the principal did not appear at a court hearing. The primary facts of record, which were the only facts before the judge as he ruled on the defendants' motions to dismiss, are the grand jury minutes, which we summarize.4,5
On June 29, 2001, the defendant Phillipe Lima, and on November 9, 2001, Michael Correia, not a defendant in this case, posted $10,000 cash bail each as sureties for charges then pending against the principal.6 On February 28, 2002, the principal failed to appear at a court hearing in his case. He claims he was not present because his lawyer had told him he need not appear on that date. The record does not indicate whether the principal's absence resulted in a default.
On the evening of March 6, 2002, after playing basketball, the principal left a recreation center with a friend and one of the defendants, Sharik Mendes. They stopped at the house where Mendes's brother lived. As the principal entered the kitchen, the defendant Brandin Gonsalves lunged at him, pointed a gun at his chest, and said, Several other people grabbed the principal, slammed him face down to the ground, and handcuffed him with his arms behind his back. Several of the defendants, including Ryan Cabral, John Ferreira, Robert Feliciano, and Mendes, were present during, or participated in, this encounter. Various of the defendants later participated in moving the principal to two other locations,7 detaining him overnight. During this time, the defendants kept the principal handcuffed, at all times in the presence of at least one person armed with a gun. The following day the defendants surrendered the principal at the court house.8
2. A surety's lawful authority. To answer Question 1, we must resolve two related questions. First, do a surety and his agents have the lawful authority to apprehend, detain, and deliver the principal to the court house? As to that, the Commonwealth argues that no such authority exists because the Legislature has statutorily abrogated the common law that recognized such authority. Second, assuming such lawful authority exists, implicit in the judge's use of the phrase "affirmative defense" is a second question: how should a court allocate between the parties the burden of proving whether a defendant is or is not a surety or surety's agent? We address each in turn.
(a) Existence of lawful authority. We commence our discussion with a brief overview of the common law concerning the authority of a bail bondsman or surety to surrender his principal. See note 3, supra. At common law, a surety had "the custody of the principal, and may take him at any time, and in any place." Commonwealth v. Brickett, 8 Pick. 138, 140 (1829). He was permitted to seize the principal himself or to engage an agent to do so, without resort to the legal system. Id. Accord Tailor v. Trainor, 83 U.S. (16 Wall.) 366, 371 (1872). See Commonwealth v. Wilkinson, 415 Mass. 402, 404 (1993).9 The surety could use such force as might otherwise result in civil or criminal liability: "If the door [to the principal's dwelling] should not be opened on demand at midnight, the bail may break it down, and take the principal from his bed, if that measure should be necessary to enable the bail to take the principal." Commonwealth v. Brickett, supra. The principal was presumed to consent to, and the State presumed to authorize, the surety's use of such force. See, e.g., Commonwealth v. Stuyvesant Ins. Co., 366 Mass. 611, 614-616 (1975) (); Commonwealth v. Brickett, supra at 140-142. See also note 12, infra.
The Commonwealth argues that two statutes originally enacted in 1863 have supplanted the common law just described. See G. L. c. 276, § 6810 (); G. L. c. 276, § 6911 (). In the Commonwealth's view, Commonwealth v. Brickett, supra, "is no longer good law in Massachusetts" and, while a surety is "entitled" to return of any money posted as bail when he surrenders the principal to an appropriate official, "this entitlement does not give to a surety the right to arrest," which, according to the Commonwealth, "except in the rarest of cases, the Commonwealth reserves for itself."
We do not agree for several reasons. Neither statute expressly codifies, modifies, or abrogates the scope of the common-law right of a surety to apprehend and detain the principal in order to exonerate bail. Nor does either statute place any limits on a surety's actions while effecting a surrender. Stated differently, the statutes leave unexplained how the surety is to "obtain[] sufficient control over the principal" so as to complete the surrender. Commonwealth v. Stuyvesant Ins. Co., supra at 615. Rather, the statutes describe the administrative protocol that the surety must follow to recover his deposits. The statutes address aspects of the relationship between the Commonwealth and the surety; they do not address the relationship between the principal and the surety or purport to govern how the surety may exercise custody over his principal.12
Our conclusion is consistent with the settled rule of statutory construction that "[a] statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed." Eyssi v. Lawrence, 416 Mass. 194, 200 (1993), quoting Riley v. Davison Constr. Co., 381 Mass. 432, 438 (1980). We see no clear expression of legislative intent to abrogate the common law concerning the surety's right to exercise custody over his principal.13 To the contrary, as recently as 1999, members of the Massachusetts House of Representatives implicitly recognized that a surety has a broad right to capture and detain his principal, and proposed legislation to limit it. See An Act Relative to Bounty Hunters, So-Called, 1999 House Doc. No. 1481 ().14
It is therefore to the common law that we look to answer the reported questions. It is beyond dispute that the common law provides that the surety may raise as a defense to a charge of criminal conduct his right to apprehend his principal and deliver him to the court house. See, e.g., Commonwealth v. Wilkinson, supra at 408. Of course, a surety's right to use force in exercising custody over a principal is not unfettered, an issue we address in our answer to Question 2.
We recognize that there are compelling public policy reasons why the Legislature may seek to...
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