Commonwealth v. Vieira, SJC-12696

• Citation: 133 N.E.3d 296,483 Mass. 417
• Decision Date: 22 October 2019
• Docket Number: SJC-12696
• Parties: COMMONWEALTH v. Carlos L. VIEIRA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

483 Mass. 417

133 N.E.3d 296

COMMONWEALTH

v.Carlos L. VIEIRA.

SJC-12696

Supreme Judicial Court of Massachusetts, Suffolk..

Argued May 6, 2019.

Decided October 22, 2019.

Catherine Langevin Semel, Assistant District Attorney (Kimberly Faitella, Assistant District Attorney, also present) for the Commonwealth.

Gilbert F. Nason, Jr., for the defendant.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

General Laws c. 276, § 58A, permits the pretrial detention of a defendant, without bail, where the individual poses an ongoing danger such that "no conditions of release will reasonably assure the safety of any other person or the community." To be detained pursuant to a finding of dangerousness prior to trial, a defendant first must be charged with one of an enumerated set of predicate offenses. Among these is any "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." G. L. c. 276, § 58A (1).

The defendant is alleged to have engaged in sexual activity with a thirteen year old boy whom he met online, in violation of G. L. c. 265, § 23A (statutory rape), and G. L. c. 265, § 13B (indecent assault and battery on a child). In Commonwealth v. Barnes, 481 Mass. 225, 229-230, 114 N.E.3d 74 (2019), we recently determined that the rape of a child, not by force but aggravated by age, does not constitute a predicate offense under G. L. c. 276, § 58A, because the offense is not one of the enumerated offenses identified in the statute and does not have as an element the use, attempted use, or threatened use of physical force. Put differently, under the dangerousness statute, G. L. c. 276, § 58A, a person charged with statutory rape cannot be held without conditions of release prior to trial.

The Commonwealth argues that a charge for the distinct crime of indecent assault and battery on a child under the age of fourteen, at issue here, renders an individual eligible for such pretrial detention, even where its more severe analog does not. Compare G. L. c. 265, § 13B (maximum penalty ten years in State prison), with G. L. c. 265, § 23A (minimum penalty ten years in State prison). We disagree, and conclude that a charge of indecent assault and battery on a child under the age of fourteen may not form the basis for pretrial detention under G. L. c. 276, § 58A.

1. Background. The following is taken from the agreed-upon statement of facts by both parties.

The defendant was charged with two counts of aggravated rape of a child, G. L. c. 265, § 23A,¹ and two counts of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. He was arraigned in February 2019.² At arraignment, the Commonwealth sought a dangerousness hearing. See G. L. c. 276, § 58A.

A judge of the District Court initially found probable cause to detain the defendant pending a dangerousness hearing, and allowed the Commonwealth's request for a three-day continuance. The next day, however, the judge sua sponte required the parties to appear at a second hearing to determine whether any of the charges the defendant faced qualified as a predicate offense under G. L. c. 276, § 58A, in light of our decision in Barnes, 481 Mass. at 230, 114 N.E.3d 74. The judge concluded that none of the charges qualified under the statute and that the defendant could not be detained without bail.³

The following day, the Commonwealth filed an emergency petition for extraordinary relief in the county court, pursuant to G. L. c. 211, § 3. The single justice reserved and reported the matter to the full court, and at the same time ordered that a bail hearing be conducted in the District Court.

During the pendency of these proceedings, the defendant was indicted by a grand jury for the same offenses. In April of 2019, the defendant was arraigned in the Superior Court and placed on pretrial probation.⁴

2. Discussion. The defendant maintains, and the District Court judge determined, that the defendant could not be detained without bail pending trial, given the crimes with which he had been charged. See G. L. c. 276, § 58A.

Pretrial release is governed by two statutes: G. L. c. 276, § 58 (bail statute), and G. L. c. 276, § 58A (dangerousness statute). Under the bail statute, "[t]he preferred pretrial disposition is release on personal recognizance." Mendonza v. Commonwealth, 423 Mass. 771, 774, 673 N.E.2d 22 (1996), citing G. L. c. 276, § 58. Where release on personal recognizance "will not reasonably assure the appearance of the person before the court," conditions of release, including bail, are appropriate. See G. L. c. 267, § 58. The purpose of bail is to assure the appearance of the accused in court. See Brangan v. Commonwealth, 477 Mass. 691, 692, 699, 80 N.E.3d 949 (2017) ; Commonwealth v. King, 429 Mass. 169, 174, 706 N.E.2d 685 (1999).

Pretrial detention is a measure of last resort. See Brangan, 477 Mass. at 704, 80 N.E.3d 949 ("in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception" [citation omitted] ). Prior to conviction, a criminal defendant is presumed not to have committed the crimes charged. See Commonwealth v. Madden, 458 Mass. 607, 610, 939 N.E.2d 778 (2010). Bail set in an amount that the individual cannot afford, resulting in "the functional equivalent of an order for pretrial detention," Brangan, 477 Mass. at 705, 80 N.E.3d 949, is permissible only where no other conditions or amount of bail would "adequately assure the person's appearance before the court." G. L. c. 276, § 58.⁵ In the absence of a motion by the Commonwealth pursuant to G. L. c. 276, § 58A, any potential danger posed by the defendant to the community does not factor into the calculus. King, 429 Mass. at 174, 706 N.E.2d 685.⁶

Under the dangerousness statute, however, pretrial detention may be permitted, in limited circumstances, where "no conditions of release will reasonably assure the safety of any other person or the community." G. L. c. 276, § 58A. See Mendonza, 423 Mass. at 774, 673 N.E.2d 22. Such a determination is made after a dangerousness hearing, held at the Commonwealth's request.⁷

a. Predicate offenses under G. L. c. 276, § 58A. Where the Commonwealth seeks pretrial detention on account of an individual's dangerousness, "[t]he threshold question in every case is whether the defendant has [been charged with committing] a predicate offense under [G. L. c. 276,] § 58A (1)." See Commonwealth v. Young, 453 Mass. 707, 711, 905 N.E.2d 90 (2009). If no predicate offense has been charged, a defendant may not be placed in pretrial detention under G. L. c. 276, § 58A.

The charges for which an individual may be detained prior to trial, due to dangerousness, are limited. See Commonwealth v. G.F., 479 Mass. 180, 198, 93 N.E.3d 816 (2018) ; Madden, 458 Mass. at 610, 939 N.E.2d 778. The practice of pretrial detention on the basis of dangerousness has been upheld as constitutional in part because the Legislature "carefully limit[ed] the circumstances under which detention may be sought to the most serious of crimes," e.g., a "specific category of extremely serious offenses." United States v. Salerno, 481 U.S. 739, 747, 750, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).⁸ See Brangan, 477 Mass. at 706, 80 N.E.3d 949, quoting Aime v. Commonwealth, 414 Mass. 667, 680, 611 N.E.2d 204 (1993) ("State may not enact detention schemes without providing safeguards similar to those which Congress incorporated into the [Federal] Bail Reform Act"). See also Mendonza, 423 Mass. at 786-787, 673 N.E.2d 22 (inclusion of certain enumerated crimes under G. L. c. 276, § 58A, but not under Federal Bail Reform Act, raises no constitutional concerns where enumerated crimes exhibited sufficient "menace of dangerousness").

Indecent assault and battery on a child, as codified in G. L. c. 265, § 13B, is not among the crimes explicitly enumerated as a predicate offense permitting pretrial detention under G. L. c. 276, § 58A.⁹ The Commonwealth argues that the offense nonetheless falls under the "force clause" in the statute, which appends to the list of enumerated offenses any "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." See G. L. c. 276, § 58A (1).¹⁰

In determining whether a crime qualifies under the force clause of G. L. c. 276, § 58A, we take a "categorical approach." See Barnes, 481 Mass. at 228, 114 N.E.3d 74. Our analysis turns on "the elements of the offense, rather than the facts of or circumstances surrounding the alleged conduct." Id., citing Young, 453 Mass. at 711-712, 905 N.E.2d 90.¹¹ That is to say, we look at the definition of the crime, rather than the facts of any one particular case. See Commonwealth v. Wentworth, 482 Mass. 664, 671 & n.4, 128 N.E.3d 14 (2019) (noting that strict elements-based approach is appropriate where defendant has no right to trial by jury during dangerousness proceeding). Where "physical force" is an element of the offense charged, the offense qualifies under the statute. See Barnes, supra at 235-236, 114 N.E.3d 74 (setting forth, as examples: " G. L. c. 265, § 22A [rape of child]; G. L. c. 265, § 22 [rape]; G. L. c. 265, § 18C [home invasion]; G. L. c. 265, § 19 [unarmed robbery]; G. L. c. 265, 51 [human trafficking -- ‘forced services’]").

Accordingly, we must determine whether indecent assault and battery on a child under fourteen, under G. L. c. 265, § 13B, includes "the use, attempted use or threatened use of physical force" as an element of the offense. G. L. c. 276, § 58A (1).

b. Elements. General Laws c. 265, § 13B, does not precisely define the elements of the crime ("Whoever commits an indecent assault and battery on a child under the age of [fourteen] shall be punished ..."). "[W]e presume that the Legislature intended to incorporate the common law definition of assault and battery." Commonwealth v. Burke, ...