Corey v. Com.
| Decision Date | 19 September 1973 |
| Citation | 364 Mass. 137,301 N.E.2d 450 |
| Parties | Robert COREY v. COMMONWEALTH et al. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles J. Artesani, Jr., Asst. Dist. Atty., for respondents.
Roderick L. Ireland, Allston, for petitioner.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.
This is a petition for a writ of certiorari and related relief brought under G.L. c. 211, § 3, 2 asking the court to exercise its supervisory powers 'to correct and prevent errors and abuses' in bind-over hearings conducted in the District Courts of the Commonwealth. The petitioner asks us to vacate the District Court's decision to decline jurisdiction and bind the defendant over for trial on the grounds that he was not given a fair hearing on the question of whether he 'appear(s) to be guilty.' C. 218, § 30. This petition comes before us upon a reservation and report without decision by a single justice upon the pleadings and a statement of agreed facts.
Although we will review interlocutory rulings in criminal cases under our general superintendence powers 'only in the most exceptional circumstances,' GILDAY V. COMMONWEALTH, MASS., 274 N.E.2D 589, 590,A we will act 'at whatever stage in the proceedings it becomes necessary to protect substantive rights.' Barber v. Commonwealth, 353 Mass. 236, 239, 230 N.E.2d 817, 819. The question before us is whether the summary manner in which the District Court judge conducted the petitioner's bind-over hearing violated his 'substantive' rights.
The pertinent facts may be summarized briefly. On March 15, 1973, the petitioner was arraigned in the Municipal Court of the Roxbury District on charges of possession of marihuana and unlawfully carrying a firearm. After the charges were read to the petitioner, the judge entered a plea of not guilty on both complaints, and asked the arresting officer for a statement of the facts leading to the petitioner's arrest. After listening to the arresting officer's statement, the judge examined the petitioner's probation file, set a trial date for March 26, 1973, and assigned the case to the Boston University Defenders Program. (No attorney from that program was present in the court room during this stage of the proceedings.) Further action on the case was suspended for approximately an hour and a half to allow the Roxbury Court clinic to determine if the petitioner was drug dependent. During this interval, the petitioner's family asked an attorney from the Roxbury Defenders Committee to represent the petitioner. Upon resumption of the case and after the judge had read the clinic's evaluation report, the Roxbury Defenders Committee's attorney addressed the bench in regard to representing the petitioner. The attorney informed the judge that he had represented this indigent petitioner in the past and that the petitioner wished to be represented by him in the present proceedings. A conversation then ensued between the judge and the Roxbury Defenders Committee's attorney concerning bail proceedings in the Commonwealth's court system and an unrelated charge against the petitioner which was still awaiting trial in Suffolk Superior Court. After expressing his disapproval of the Roxbury Defenders Committee's former and present course of action in bail matters, the judge declined jurisdiction over the complaints and set bail at $5,000.
The facts of the instant case indicate that the petitioner's preliminary hearing consisted of a statement by the arresting officer. The petitioner was not given a meaningful opportunity to cross-examine this witness or present evidence on his own behalf and he was not advised that he could cross-examine witnesses and present evidence. 3 He was not represented by counsel at the time. Obviously, the summary nature of the petitioner's bindover 'hearing' does not satisfy the procedural requirements of a probable cause hearing which we held in MYERS V. COMMONWEALTH, MASS., 298 N.E.2D 819,B are mandated by c. 276, § 38. The question before us is whether that statute applies to criminal charges over which the District Court may exercise final jurisdiction. 4
The Commonwealth argues that c. 218, § 30, 5 which authorizes the bind-over procedure, does not require or even suggest that the District Court judge must first find probable cause before holding the defendant for trial. The statute notes that the examining magistrate 'may so commit or bind over persons brought before them who appear to be guilty of crimes within their final jurisdiction' (emphasis supplied). Apparently, the Commonwealth's argument rests on its assumption that the statutory requirement that defendants 'appear to be guilty' before being bound over for trial cannot be equated with or read in light of c. 276, §§ 38--42, provisions concerning probable cause hearings.
We are unable to find any support for such an assumption either in the express language of the pertinent statutory provisions or in their legislative history. As we noted in the Myers case, supra, the rules governing the conduct of preliminary hearings in the Commonwealth are summarily set forth in C.L. c. 276, §§ 38--42. Section 38 grants all defendants, who have not been indicted by a grand jury, a right 6 to an adversary hearing where they may confront their accusers and present testimony in their own behalf on the question whether there is probable cause to bind them over for trial. See Myers v. Commonwealth, supra. Defendants are held for trial only if it appears to the examining magistrate (1) 'that a crime has been committed' and (2) 'that there is probable cause to believe the prisoner guilty.' Chapter 276, § 42. These two requirements are designed to establish an effective bind-over standard which screens out those groundless or unsupported charges that should not go to trial. Nothing in the statutory text of these provisions suggests that they are applicable only to charges like those in the Myers case over which the District Court has no concurrent jurisdiction. To the contrary, c. 276, § 42, makes it clear that in cases where the District Court declines to exercise its final jurisdiction, the judge must find probable cause before setting bail. ('If it appears that a crime has been committed and that there is probable cause to believe the prisoner guilty, the court or justice shall, if final jurisdiction is not exercised, admit the prisoner to bail, if the crime is bailable and sufficient bail is offered; otherwise, he shall be committed to jail for trial' (emphasis supplied).)
The unambiguous reference in § 42 to cases where the District Court declines to exercise its final jurisdiction over the charges before it and its requirement that in such cases probable cause be found before the defendant is committed or admitted to bail make it clear that the Legislature did not intend that probable cause hearings be held in District Courts only in cases where the District Courts did not have ultimate jurisdiction over the charges involved. Such a distinction would make little sense because the preliminary hearing's primary function of determining whether there is sufficient legally admissible credible evidence of the defendant's guilt to justify holding him over for trial is applicable to any case where a bind-over determination is being made. The fact that the District Court could have exercised its final jurisdiction 7 does not justify a failure to make a proper bind-over determination when the court decides to decline final jurisdiction.
Therefore, we must reject the Commonwealth's argument that c. 218, § 30, should not be interpreted in conjunction with c. 276, §§ 38--42. We construe the requirement of c. 218, § 30, that defendants shall not be bound over for trial unless they 'appear to be guilty' to mean that the District Court judge must always make a finding of 'probable cause to believe the prisoner guilty,' c. 276, § 42, before he binds any defendant over for trial in the Superior Court, regardless of whether the District Court has concurrent jurisdiction over the crimes charged. Our holding is supported by earlier decisions of this court which held that the statutory predecessors of c. 218, § 30, and c. 276, §§ 38--42, must be read together as requiring a finding of probable cause before a bind-over determination could be made. See Commonwealth v. Harris, 8 Gray 470; Commonwealth v. Sullivan, 156 Mass. 487 8, 31 N.E. 647. See also Smith, Criminal Practice and Procedure, § 686, p. 337.
Since the petitioner was deprived of his statutory right to a probable cause hearing before being bound over for trial, unless the court decides to exercise its jurisdiction, he must be given a new preliminary hearing to determine whether there is sufficient evidence to justify holding him for trial. Therefore, pursuant to our powers of 'general superintendence of all courts of inferior jurisdiction,' c. 211, § 3, the original bind-over decision is vacated and the case is to be transferred to the Municipal Court of the Roxbury District for further proceedings consistent with this opinion. 9
So ordered.
The specific relief sought by the petitioner is that this court order the Municipal Court of the Roxbury District to 'schedule a probable cause hearing for the charges against (the) defendant's and that further action by the Commonwealth be stayed pending the holding of such a hearing. The briefs of both the petitioner and the Commonwealth state the principal question for decision to be whether a defendant, appearing before a judge of a District Court on a criminal complaint charging an offence of which that court has final jurisdiction, is entitled to a 'bind-over' or 'probable cause' hearing, so called, before the judge can decline jurisdiction and bind the defendant over to the Superior Court. By its opinion this court holds that the petitioner is...
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