Commonwealth v. Perkins

Citation464 Mass. 92,981 N.E.2d 630
Decision Date14 January 2013
Docket NumberSJC–10979.
PartiesCOMMONWEALTH v. Lavonrence PERKINS.
CourtUnited States State Supreme Judicial Court of Massachusetts

464 Mass. 92
981 N.E.2d 630

Lavonrence PERKINS.


Supreme Judicial Court of Massachusetts,

Argued Sept. 4, 2012.
Decided Jan. 14, 2013.

[981 N.E.2d 632]

Peter B. Krupp, Boston, (E. Page Wilkins with him) for the defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth.



[464 Mass. 92]This case raises the question whether a defendant who is charged initially by complaint with murder in the first degree is entitled to a preliminary or probable cause hearing in the District Court 1 pursuant to the provisions of G.L. c. 276, § 38 ( § 38), and, if so, when the probable cause hearing [464 Mass. 93]described in § 38 must be held.2 We conclude that § 38 is applicable to such a defendant and provides the defendant with the right to a probable cause hearing as soon as practicable in the circumstances. For the reasons we shall discuss, we decline to adopt a bright-line rule that would require the Commonwealth to conduct the probable cause hearing within thirty days or another definite time frame, but we conclude that because the probable cause hearing is an important stage in a criminal

[981 N.E.2d 633]

proceeding, the Commonwealth must demonstrate good cause to justify any request by the Commonwealth to continue it.

Background. On May 7, 2010, Cordell McAfee was shot and killed on the front porch of a house in the Dorchester section of Boston.3 On December 20, 2010, a criminal complaint issued against the defendant charging him with the murder of McAfee and the unlawful carrying of a firearm. The defendant was arrested in Rhode Island on January 18, 2011, and a judge in the Dorchester Division of the Boston Municipal Court Department (District Court; see note 1, supra ) arraigned the defendant on the charges on January 21, 2011.

At the defendant's arraignment, the judge scheduled a probable cause hearing to be held on February 17, 2011. See Mass. R. Crim. P. 7(b)(4), as appearing in 461 Mass. 1502 (2012).4[464 Mass. 94]On that date, the prosecutor requested a continuance.5 The judge granted the requested continuance and scheduled a second date for the probable cause hearing in thirty days, to be held on March 16, 2011. At the March 16 hearing, the prosecutor requested another thirty-day continuance with an explanation that the Commonwealth needed additional time to obtain deoxyribonucleic acid evidence; she asked for a probable cause hearing date of April 15, 2011. Over objection of the defendant, the judge granted the requested continuance and rescheduled the probable cause hearing for April 15. On March 16 as well, the defendant filed a motion to dismiss or for release, arguing that the successive continuances of the probable cause hearing violated his liberty interests, given that he remained in custody during these delays. The judge denied the motion.

Thereafter, on March 24, 2011, the defendant filed a petition in the county court pursuant to G.L. c. 211, § 3, seeking an order that a probable cause hearing be held in the District Court as soon as possible and not later than April 15, 2011, and requesting in the alternative that the single justice dismiss the pending complaint against the defendant. Before the defendant's petition was heard by the single justice, at the scheduled April 15 hearing in the District Court, the prosecutor requested another continuance. She argued that, due to delays reaching the witnesses, the Commonwealth was unable to complete the grand jury investigation, and she stated that the grand jury was scheduled to meet again on May 6, 2011. The defendant again objected to a continuance, and filed a renewed motion to dismiss. The judge granted the Commonwealth's requested continuance and denied the defendant's motion to dismiss, setting May 9, 2011, as the next date for the probable cause hearing. The grand jury returned

[981 N.E.2d 634]

an indictment on May 7, 2011, charging the defendant with murder in the first degree. The probable cause hearing in the District Court never took place.6

Before the indictment was returned, the single justice heard [464 Mass. 95]the defendant's c. 211, § 3, petition on April 26, 2011, and on May 9, 2011, issued a memorandum of decision denying the requested relief.7 The defendant filed a timely appeal.

Discussion. 1. Mootness. As the defendant has been indicted and does not suggest that he would be entitled at this point either to a probable cause hearing or dismissal of the indictment, his petition for relief under G.L. c. 211, § 3, is moot. However, it is within the discretion of this court to answer questions that, due to circumstances, no longer may have direct significance to the parties but raise issues of public importance and, because of their nature, may be “capable of repetition, yet evading review.” See Lockhart v. Attorney Gen., 390 Mass. 780, 782–783, 459 N.E.2d 813 (1984), quoting Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298, 327 N.E.2d 885 (1975), and cases cited. Cf. Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943).

Whether a person charged and held on a District Court complaint for murder in the first degree is entitled to a probable cause hearing in the District Court and, if so, the timing of such a hearing and the relationship between a person's right to that hearing and the Commonwealth's right to initiate grand jury proceedings are issues that implicate the liberty interests of all defendants who are so situated, and more generally are significant for the proper administration of the criminal justice system. These issues have been briefed fully by the parties, and we will consider them.

2. Probable cause hearings for defendants held on a complaint of murder. a. Introduction. It is useful to set out the text of the two statutes that give rise to the issues just summarized.

General Laws c. 276, § 38, provides:

“The court or justice 8 before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. After the testimony [464 Mass. 96]to support the prosecution, the witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution. Nothing contained herein shall be construed to prohibit the enforcement of the waiver provisions of Rule 3 of the Massachusetts Rules of Criminal Procedure. A defendant charged with an offense as to which he has the right to be proceeded against by indictment may elect a probable cause hearing in accordance with Rule 3 of the Massachusetts Rules of Criminal Procedure, but in such event shall be deemed to have waived his right to be proceeded against by indictment.” (Emphasis added.)

General Laws c. 263, § 4A (§ 4A), provides in relevant part:

“A defendant charged in the district court with an offense as to which he has the right to be proceeded against by

[981 N.E.2d 635]

indictment shall have the right, except when the offense charged is a capital crime,9 to waive that right, whereupon the court shall have as full jurisdiction of the complaint as if an indictment had been found. If a defendant is so charged and requests a probable cause hearing in district court, that request shall constitute a waiver of the right to be proceeded against by indictment and the prosecution may proceed upon the complaint. If a defendant waives the right to be proceeded against by indictment, a probable cause hearing shall be held in the district court unless the defendant waives the probable cause hearing or unless the prosecutor elects to proceed by indictment pursuant to the Massachusetts Rules of Criminal Procedure.” (Emphasis added.)

[464 Mass. 97]The single justice implicitly determined that § 38, with its provision for a probable cause hearing in the District Court, applied to the defendant. However, the single justice concluded that a District Court judge maintains discretion to continue a scheduled probable cause hearing, and he found no abuse of discretion in the continuances granted by the District Court judge in the defendant's case.

The defendant argues that the single justice committed an error of law in denying the defendant's request for an immediate probable cause hearing or dismissal of the District Court complaint. He contends that § 38 protects a defendant who is charged in the District Court but subject to being bound over to the Superior Court from being held in custody without a neutral assessment, within a short time after the prosecution actually begins, of whether there is probable cause to support the charges against him.10 In particular, the defendant points to § 38's requirement that a judge conduct a probable cause hearing to review the charges “as soon as may be,” a time frame that he argues should be no more than thirty days from the date of arraignment. He views a limit of thirty days as consistent with (1) Mass. R.Crim. P. 7(b)(4), as appearing in 461 Mass. 1501 (2012) (see note 4, supra ), directing a District Court judge to schedule a probable cause hearing at the time of arraignment on any complaint that is beyond the jurisdiction of that court; and (2) G.L. c. 276, § 35, which prohibits at any one time the continuance beyond thirty days of any hearing or trial in the District Court involving a defendant held in custody. He contends that if any continuance

[981 N.E.2d 636]

beyond thirty days is permissible, it must only be in “exceptional circumstances” that do not include scheduling or completing grand jury presentations.

The Commonwealth, on the other hand, asserts that a defendant charged with murder in the first degree has no right to a probable cause hearing under § 38. The argument is that under [464 Mass. 98]both §§ 4A...

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