Commonwealth v. Rojas
| Decision Date | 07 July 2020 |
| Docket Number | Docket: 1977CR0275 |
| Parties | COMMONWEALTH v. GERALDO ROJAS |
| Court | Massachusetts Superior Court |
Dates: July 7, 2020
Present: David A. Deakin Associate Justice
County: ESSEX, ss.
The defendant, Gerald() Rojas, is charged with armed assault with intent to murder (G. L. c. 265, § 18(b)), assault by means of a dangerous weapon (G. L. c. 265, § 15B(b)), assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A(b)), and carrying a firearm without a license (G. L. c. 269, § 10) in connection with an April 28, 2019, shooting in Lynn. He was indicted with two co-defendants, Deylis Encarnacion (see 1977CR00276) and Michael Cepeda (see 1977CR00277). Pursuant to G. L. c. 276, § 58A, Rojas has been held without bail since July 15, 2019, while awaiting trial in this court. He has brought a Motion to Admit Defendant to Bail (Paper No. 21). As grounds for his Motion, Rojas contends both that his detention has exceeded the 180-day limit on pretrial detention under G. L. c. 276, § 58A ("§ 58A"), and that, in any event, circumstances have changed — both as to his dangerousness and as to his plan for pretrial release — such that his continued detention is unnecessary and, therefore, impermissible. The court concludes that § 58A's 180-day limit on pretrial detention has not expired because of periods excluded by § 58A from its computation. The court further concludes that there have been no material changes in circumstances that warrant vacating the court's original order of pretrial detention. The Motion to Admit Defendant to Bail is therefore DENIED.
Rojas was arraigned in Lynn District Court on May 3, 2019, in connection with these charges. See 1913CR001216. On May 15, 2019, a judge of that court held him without bail pursuant to G. L. c. 276, § 58A. See 1913CR001216. The indictment in this case was returned on June 13, 2019, and Rojas was arraigned in this court on July 15, 2019. A hearing for pretrial detention was held that day, and, the following day, Rojas was again held without bail on grounds of dangerousness. See G. L. c. 276, § 58A.
A pretrial conference was held on August 28, 2019, and the case was scheduled for a motion hearing on September 27, 2019. That day, Rojas filed a "Motion for [D]iscovery." The case was scheduled for another motion hearing on October 9, 2020. It appears from the docket that the court (Drechsler, J.) ruled on the discovery motion on October 9. The case was then continued for a lobby conference on December 2, 2019.
The next scheduled date was January 21, 2020, for "[filling of [m]otions." That filing date was continued until February 27, 2020, at the "[r]equest of efendant." On February 21, 2020, current defense counsel, Eduardo Masferrer, entered his appearance, replacing Rojas's prior, appointed counsel. On February 27, 2020, the Commonwealth filed a Motion for Court Order for the Production of the Victim's Medical Records (Paper No. 13). The court (Tabit, J.) allowed the motion that day. The case was next scheduled for April 9, 2020, for a "[Nearing on [c]ompliance." On March 31, 2020, however, that hearing was continued "due to COVID-19" until May 15, 2020.2 On April 29, 2020, the hearing was continued to June 19, 2020, again due to the COVID-19 public health emergency.
On June 19, 2020, Rojas filed this Motion to Admit Defendant to Bail, as well as several other motions. On June 25, 2020, the Commonwealth filed its Opposition (Paper No. 27). A hearing was held on the Motion on June 26, 2020, by teleconference. After the hearing, the Commonwealth filed a Supplemental Summary of Grand Jury Testimony (Paper No. 28), and Rojas filed a Reply to Commonwealth's Opposition to Release on Bail (Paper No. 29).
Section 58A of G. L. c. 276, allows for the pretrial detention of indicted defendants for up to 180 days.3 In order to hold a defendant without bail under the statute, a court must find both that the defendant poses a danger to one or more members of the public and that no conditions of release can reasonably protect against that danger. See Commonwealth v. Vieira, 483 Mass. 417, 417 (2019). The 180-day period during which a defendant may be detained pretrial on grounds of dangerousness excludes "any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36(b)(2)."4 G. L. c. 276, § 58A(3). Rule 36(b)(2) lists a number of situations in which periods of delay in criminal prosecution are excluded from computation of time under the rule (see infra). The appellate courts of the Commonwealth have also interpreted Rule 36 as excluding from its computation periods of delay that a defendant "acquiesced in, was responsible for, or benefited from . . . ." Commonwealth v. Dirico, 480 Mass. 491, 498-499 (2018). Like the one-year period under Rule 36, the 180-day period of permissible detention under G. L. c. 276, § 58A(3), starts — or, in the case of a defendant previously arraigned in district court, restarts — with the defendant's arraignment in superior court. See Finn v. Commonwealth, 482 Mass. 817, 822 (2019). Cf. Commonwealth v. Polanco, 92 Mass. App. Ct. 764, 767 (2018) ().
This case turns in large part on whether only periods expressly excluded by Rule 36(b)(2) are also excluded under G. L. c. 276, § 58A, or, instead, periods excluded by judicial interpretation of Rule 36 are also excluded under the statute. Effectively adopting the latter position, the Commonwealth argues that periods of delay that Rojas "acquiesced in, was responsible for, or benefitted from," are excluded from the Rule 36 computation, Dirico, 480 Mass. at 499, and therefore also from the computation of the 180-day limit under § 58A. Rojas's argument proceeds, in part, from the implied premise that only those periods of delay excluded from the Rule 36 computation by the express language of Rule 36(b)(2) are also excluded from the § 58A computation.
The issue is one of statutory construction. The court must determine the Legislature's intent in incorporating in § 58A an exclusion of periods of delay set out in Rule 36(b)(2), the only sub-section of the rule that enumerates excluded periods. The question is whether the Legislature intended to exclude only those periods expressly set out in that sub-section or, instead, intended to incorporate the courts' common-law interpretation of the rule. For the reasons set out below, the court adopts the latter view and concludes that the Legislature intended for the excluded periods under Rule 36 and § 58A to be coextensive.
In drafting laws, the Legislature is presumed to know and understand the common law. See Elm Corp. v. Commissioner of Revenue, 433 Mass. 568, 571 (2012) ( ) (citations omitted). The Supreme Judicial Court has explained that, in the Rule 36 context,
[t]here are two separate ways in which the Commonwealth can meet its burden of justifying a delay, thereby excluding it from the speedy trial calculation under rule 36. The first way is to show that the delay falls within one of the 'excluded periods' specifically enumerated under rule 36(b)(2)..
The second way that the Commonwealth can justify a delay is provided not by any provision in rule 36, but by the common law. Under the common law, a defendant is not entitled to dismissal if he or she acquiesced in, was responsible for, or benefitted from the delay. . . . Thus, in several cases, we have excluded time under rule 36 based on the defendant's failure to object to a delay.
Dirico, 480 Mass. at 498-499 (citations omitted). In Commonwealth v. Look, 379 Mass. 893, 898 n.2 (1980), the Supreme Judicial Court noted that the doctrine of acquiescence5 pre-dated the adoption of Rule 36, which went into effect on July 1, 1979. At least since 1983, "[t]he [Reporter's] Notes to subdivision (b) (2) [of Rule 36 have] state[d] that periods of delay in which a defendant acquiesces, for which [the defendant] . . . is responsible, or from which [the defendant] . . . benefits should be excluded periods and 'are not to be included in the calculation of the time limits of this rule'" Bony v. Commonwealth, 390 Mass. 285, 295 (1983), quoting Reporters' Notes to Rule 36(b)(2). It is, therefore, indisputable that, when § 58A was enacted in July 1994, courts had long construed Rule 36 as excluding not only periods expressly listed in sub-section 36(b)(2) but also periods of delay in which the defendant had acquiesced.
That the common-law interpretation of Rule 36 excludes periods of delay to which a defendant acquiesces, however, does not resolve whether the Legislature intended to exclude those periods from the computation of time under § 58A. The court, therefore, must look to "the intent of the Legislature in enacting" the statute. Wallace W. v. Commonwealth, 482 Mass. 789, 793 (2019), quoting, inter alia, Matter of E.C., 479 Mass. 113, 118 (2018). As the Supreme Judicial Court recently explained,
[t]he primary purpose of G. L. c. 276, § 58A, is to "protect[] the public from the potential harm posed by persons who have been arrested or are subject to arrest, who have found to be dangerous." . . . Accordingly the statute "permits pretrial detention of persons accused of certain crimes on the grounds of dangerousness, in order to protect public safety."
Finn v. Commonwealth, 482 Mass. 817, 820 (2019) (citations omitted). In light of this important public safety purpose, it is most unlikely that the Legislature intended to allow a defendant found to be dangerous to "passively...
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