Mendonza v. Com.

• Decision Date: 14 November 1996
• Parties: Kevin MENDONZA v. COMMONWEALTH. COMMONWEALTH v. Vincent L. CALLENDER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 22

673 N.E.2d 22

423 Mass. 771

Kevin MENDONZA v. COMMONWEALTH.

COMMONWEALTH v. Vincent L. CALLENDER.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 10, 1996.

Decided Nov. 14, 1996.

David C. Megan & Barbara F. Berenson, Assistant District Attorneys, for Commonwealth.

Carol A. Donovan, Committee for Public Counsel Services (Wendy S. Wayne, Committee for Public Counsel Services, with her), Boston, for Kevin Mendonza & another.

Ralph C. Martin, II, District Attorney, John P. Zanini, Assistant District Attorney, for District Attorney, amicus curiae, submitted a brief.

Before WILKINS, C.J., ABRAMS, LYNCH, & FRIED, JJ.

FRIED, Justice.

In these cases we consider the constitutionality of G.L. c. 276, § 58A (1994 ed.), ¹ which allows a judge to detain, prior to trial, a person accused of certain crimes on the ground of that person's dangerousness (preventive detention). In Aime v. Commonwealth, 414 Mass. 667, 668, 611 N.E.2d 204 (1992), we concluded that G.L. c. 276, § 58, as amended through St.1992, c. 201, § 3, a predecessor to § 58A, violated the due process clause of the Fourteenth Amendment to the United States Constitution. That earlier provision differed in several respects from the Bail Reform Act of 1984, 18 U.S.C. § 3142, id. at 676 & n. 12, 611 N.E.2d 204, which the Supreme Court of the United States upheld against a facial constitutional challenge in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In Aime, supra at 681 n. 18, 611 N.E.2d 204, we expressly declined to consider the constitutionality of preventive detention under our Declaration of Rights. Section 58A is similar in most respects to the Federal Bail Reform Act.

Kevin Mendonza now challenges its constitutionality under arts. 1, 10, 12, and 26 of the Massachusetts Declaration of Rights. He challenges as well those aspects of § 58A that differ from the Federal legislation on both State and Federal constitutional grounds. Vincent Callender challenges the constitutionality under both Constitutions of the provision in § 58A(4) which the Commonwealth and the District Court read as requiring the pretrial detention of a defendant for three days if the Commonwealth requests a continuance prior to a hearing on dangerousness. Although the Bail Reform Act contains a similar provision, ² the Supreme Court did not address it in Salerno.

We conclude that in the respects challenged by Mendonza, § 58A is valid under the Fourteenth Amendment and the Declaration of Rights, both on its face and as applied to him. A provision that would require detention during a three-day continuance requested by the Commonwealth, without a hearing or any determination of need could not stand under either Constitution, but it is not necessary to read § 58A(4) in this way. The Commonwealth must show good cause for such a continuance, and the judge must in each case make a specific finding indicating what such cause is.

I

A

General Laws c. 276, § 58A, allows a District or Superior Court judge, on motion of the Commonwealth, to order the pretrial detention of a person charged with certain felonies and other offenses involving the use, or threatened use, of violence or abuse, or the violation of protective orders, including protective orders obtained under G.L. c. 209A (1994 ed.). Section 58A sets out a comprehensive scheme of measures available with respect to arrested persons charged with crime. The preferred pretrial disposition is release on personal recognizance. G.L. c. 276, § 58 (1994 ed.). Only if such release will not reasonably assure the presence of the arrested person at trial or the safety of any other persons may the judge impose the least restrictive conditions proposed to him necessary to provide such assurance, including bail in a reasonably necessary amount. G.L. c. 276, § 58A(2). Release is conditioned on the accused's not committing a Federal, State, or local crime during the period of release. G.L. c. 276, § 58A(2)(A). Only if the judge determines after a hearing that no conditions of release will reasonably assure the safety of any other persons may he order the pretrial detention of a person arrested for one of the specified offenses. G.L. c. 276, § 58A(3). A person so detained shall be brought to trial as soon as reasonably possible. In the absence of good cause, he may not be detained longer than ninety days. G.L. c. 276, § 58A(3). The judge is precluded from imposing a financial condition that results in pretrial detention in order to assure the safety of other persons, although financial conditions having that effect are not precluded for the purpose of assuring his appearance before the court. G.L. c. 276, § 58A(2) and (3). Accordingly, the provision should end any tendency to require high bail as a device for effecting preventive detention because it directs that all decisions based on dangerousness be made under the procedures set forth for that specific purpose.

The hearing at which the detention order is sought must take place at the arrested person's first appearance, absent a request for a continuance by one of the parties. The hearing may be continued for three business days on motion of the Commonwealth. The prisoner shall be detained during such continuance on a showing that there was probable cause to arrest him. § 58A(4). The judge at the hearing must find the requisite dangerousness by clear and convincing evidence, G.L. c. 276, § 58A(3) and (4), and shall consider, among other factors, the nature and seriousness of the danger posed by the prisoner if released, the nature and circumstances of the offense charged, his family ties, his employment record, his record of convictions, and whether he is on bail pending adjudication of other prior charges. G.L. c. 276, § 58A(5). The prisoner has a right to counsel at the hearing, including, if appropriate appointed counsel. He shall have the right to testify, present witnesses and information, and to cross-examine witnesses who appear against him. The rules of evidence applicable in a criminal trial do not apply at the hearing. The prisoner may be detained pending completion of the hearing. If the judge orders detention, he must issue a written opinion stating his findings of fact as to why such detention is necessary under the terms of the statute. G.L. c. 276, § 58A(4). The judge may reopen the order at any time to consider material new information, G.L. c. 276, § 58A(4), and the prisoner has the right to petition the Superior Court for review of a decision in the District Court. G.L. c. 276, § 58A(7). There is no provision for review of a Superior Court detention order although such review may be had by application to a single justice of this court. G.L. c. 211, § 3 (1994 ed.). The detention must take place, to the extent practicable, in a facility separate from that in which are held persons awaiting or serving sentence or awaiting the outcome of an appeal. G.L. c. 276, § 58A(4).

B

Four police officers came to Mendonza's house to serve him with a protective order obtained by his wife, requiring him to move out of the family home. Mendonza asked permission to gather his belongings from his bedroom. As Mendonza and three of the officers approached the bedroom he ran into the room and barricaded the door with furniture. When the officers got inside, they found Mendonza standing in a corner pouring gasoline from a canister over his head with one hand and holding a book of matches in the other. Mendonza said, "I have matches and I'll set the whole place on fire." One of the officers subdued Mendonza with "capstun" (a disabling substance), arrested him, and charged him with three counts of armed assault with intent to murder, assault and battery on a police officer, and violation of a protective order for his failure to leave the house when served with the order.

At his arraignment on these charges, the Commonwealth sought a detention order under G.L. c. 276, § 58A, but the judge ordered Mendonza committed to Bridgewater State Hospital for an evaluation of his competency to stand trial and of his criminal responsibility. During this time a grand jury indicted Mendonza on the charges enumerated above. Almost four months after the initial arraignment and after a series of additional commitments, Mendonza was returned to the Superior Court. On the same day, a hearing was held, and a § 58A detention order issued. The evidence at the hearing included the testimony of a police officer as to statements made to the officer by Mendonza's wife about threats he had made to kill her and an incident in which he had awakened her as he stood over her with a knife. The judge also noted evidence that Mendonza was, or had been, addicted to drugs, that he had a prior history of psychiatric hospitalizations, and that psychiatrists who had observed him during his commitment had thought him an "acute suicide risk." Mendonza filed a petition before a single justice of this court, challenging, among other things, the constitutionality of § 58A. The single justice denied relief and this appeal followed. Mendonza pleaded guilty to the charges of assault and battery, violation of the restraining order, and entered an Alford plea, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the charge of attempted arson. The armed assault charges were placed on file. He is no longer in custody.

Callender was arrested for banging on the door of an apartment which a G.L. c. 209A protective order forbad him from visiting. At the time, Callender was on probation for three violations of G.L. c. 209A protective orders. At his arraignment, the Commonwealth moved for a § 58A detention order and requested a continuance for three days. The District Court judge declined to grant the three-day continuance on the ground that the § 58(4) requirement that a continuance be granted merely at the request of the Commonwealth was unconstitutional....