Mushwaalakbar v. Commonwealth

• Decision Date: 09 June 2021
• Docket Number: SJC-13098
• Citation: 169 N.E.3d 184,487 Mass. 627
• Parties: Hakeem MUSHWAALAKBAR v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

487 Mass. 627

169 N.E.3d 184

Hakeem MUSHWAALAKBAR

v.COMMONWEALTH.

SJC-13098

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 2021.

Decided June 9, 2021.

Patrick Levin, Committee for Public Counsel Services, for the petitioner.

Marina Moriarty & Benjamin Shorey, Assistant District Attorneys, for the Commonwealth.

Diana Fantasia & Shoshana E. Stern, Assistant District Attorneys, for District Attorney for the Plymouth District & another, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

LOWY, J.

Hakeem Mushwaalakbar, to whom we shall refer in this opinion as the defendant, has been held in pretrial detention for over eighteen months on charges arising out of the Chelsea and Lynn Divisions of the District Court Department (Chelsea District Court and Lynn District Court).¹ His trial in the Chelsea case was originally scheduled for March of 2020, but was delayed until June 2021, when he was acquitted of the charges. His trial in the Lynn case was scheduled for April of 2020, but it has been delayed since then due to the COVID-19 pandemic. The defendant has now been held for more than a year beyond his initial trial dates.

The defendant appeals from various orders regarding his pretrial detention status, arguing that this prolonged detention violates his due process rights. Deciding this issue requires that we revisit our holding in Commonwealth v. Lougee, 485 Mass. 70, 147 N.E.3d 464 (2020). There, we held that as of June 2020, when the case was decided, the length of pretrial detention caused by the delay of jury trials due to the COVID-19 pandemic had not yet reached the point of triggering a due process analysis. See id. at 84, 147 N.E.3d 464. Now, more than a year into the pandemic, we revisit that holding. Although we are heartened by successful resumption of jury trials in the Commonwealth, we recognize the possibility of continued unforeseen delays, as well as the fact that in some cases the length of pretrial detention may have approached or exceeded the limits of constitutional due process.

Given that due process is flexible and fact-specific, the defendant is correct that a global remedy is inappropriate. The pretrial detention statutes already contain mechanisms for individual review of detention orders suited to the task. As we noted in Lougee, 485 Mass. at 81-82, 147 N.E.3d 464, the delays caused by the COVID-19 pandemic may constitute a changed circumstance within the meaning of G. L. c. 276, § 58A (4). Thus, defendants may seek individualized review whether their pretrial detention violates due process by filing motions for reconsideration under § 58A (4).

To guide trial court judges in analyzing whether a defendant's pretrial detention violates due process, we set out the following procedural framework. Defendants have a right to a hearing on motions for reconsideration under § 58A (4) if they have been held longer than the presumptive time periods in § 58A minus any periods of excludable delay other than delay due to the COVID-19 pandemic, and they make a preliminary showing on one or more of the following due process factors.

At the hearing, judges should weigh (1) the length of detention and the projected length of ongoing detention, (2) the existence and nature of a plea offer, (3) evidence supporting detention under § 58A, (4) specific unfair prejudice to the defendant, and (5) the Commonwealth's responsibility for the delay.

Given that the defendant has now been acquitted in the Chelsea case, that case is moot. Regarding the Lynn case, we vacate the single justice's decision that no due process violation occurred and remand the matter to the Lynn District Court for proceedings consistent with this opinion.²

Background. 1. Lynn case. On October 1, 2019, a complaint issued out of the Lynn District Court charging the defendant with assault and battery on a family or household member (subsequent offense), G. L. c. 265, § 13M (b ) ; and strangulation, G. L. c. 265, § 15D. The alleged victim in that case was the defendant's then girlfriend. A warrant issued for the defendant's arrest.

2. Chelsea case. A few weeks later, on October 23, 2019, police responded to a single-car accident in Chelsea. The occupants of the crashed car were the defendant and the same girlfriend. The girlfriend told police that the two had gotten into an argument that had escalated into a physical fight. The defendant was injured in the car crash and taken to Massachusetts General Hospital. Upon discharge from the hospital, the defendant was placed under arrest. He was then arraigned in the Chelsea District Court for assault on a family or household member (subsequent offense), G. L. c. 265, § 13M (b ) ; assault with intent to murder, G. L. c. 265, § 15 ;³ assault by means of a dangerous weapon, G. L. c. 265, § 15B (b ) ; and strangulation, G. L. c. 265, § 15D. The defendant was ordered held without bail pending a dangerousness hearing.

3. Dangerousness hearings. After a dangerousness hearing in the Chelsea District Court on November 7, 2019, the defendant was held without bail. A Chelsea District Court judge found that no conditions or combination of conditions of release could suffice to protect the alleged victim or the public, noting the defendant's prior domestic violence cases, the pendency of the Lynn complaint, and three restraining orders that had been entered against the defendant.

On December 5, 2019, the defendant petitioned for review of the pretrial detention order in the Superior Court in Suffolk County. A Superior Court judge vacated the dangerousness order, concluding that the defendant could be safely released on conditions including global positioning system monitoring, an order to stay away from the victim, a curfew, and a $10,000 cash bail. The defendant was unable to post the bail amount and remained incarcerated.⁴

On December 11, 2019, the defendant was arraigned on the Lynn District Court complaint. The Commonwealth filed a § 58A petition, which was heard on December 16. After the hearing, a Lynn District Court judge ordered the defendant held without bail.

4. Prior motions for release. Jury trials were scheduled for March 30, 2020, in the Chelsea District Court, and April 14, 2020, in the Lynn District Court. Those trial dates were continued due to the COVID-19 pandemic.

Following our decision in Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 142 N.E.3d 525, S.C., 484 Mass. 1029, 143 N.E.3d 408 (2020), the defendant filed motions for release in both courts. In April 2020, both motions were denied. The defendant also filed an emergency petition for release pursuant to G. L. c. 211, § 3, which was denied in May 2020. In June, in the Chelsea District Court, the defendant filed another motion to reduce his bail, which was denied. Following our decision in Lougee, 485 Mass. 70, 147 N.E.3d 464, the defendant filed a motion for relief in the Lynn District Court, which motion was denied in July of 2020.

5. Motions underlying this appeal. In the fall of 2020, the defendant renewed his motions for release. He had suffered from a knee injury while playing basketball at the Nashua Street jail and argued that his inability to receive treatment for the injury while in jail, as well as the continued unavailability of jury trials, constituted changed circumstances. The motions were denied in October in the Chelsea District Court and in December in the Lynn District Court.

In November 2020, the defendant filed a motion in the Superior Court in Suffolk County to reconsider its prior order instating a $10,000 cash bail. In December 2020, the Suffolk County prosecutor conveyed an offer to defense counsel to resolve the Chelsea case through a change of plea with a recommended split sentence of two and one-half years in the house of correction, nine months to serve, with the balance suspended during a period of probation. Because the defendant had by then been imprisoned for thirteen months, acceptance of the offer would have resulted in release on conditions for the Chelsea case. A Superior Court judge denied the defendant's motion to reconsider.⁵

Later in December 2020, the defendant filed a new petition in the county court requesting release. A single justice of this court transferred the petition to the Appeals Court. With regard to the Chelsea case, the Commonwealth agreed that given the length of the defendant's pretrial detention in relation to the likely sentence if convicted, the bail should be reduced to an amount he could post. With regard to the Lynn case, the Commonwealth opposed any relief.

On March 15, 2021, a single justice of the Appeals Court denied the defendant's petition. In a written order, the single justice addressed the defendant's due process argument, writing:

"In my view, it will be for the Supreme Judicial Court to say when, and if, we reach that point during the present COVID-19 pandemic emergency. Accordingly, at least at this time, I conclude that the defendant's continued detention, which began on October 24, 2019 does not run afoul of statutory or due process limitations.

The defendant filed a timely notice of appeal, and we allowed his application for direct appellate review.

6. Further developments in the trial courts. On March 23, 2021, the parties jointly moved for a bail reduction in the Chelsea District Court. On April 5, 2021, a judge issued an order reducing the defendant's bail to $2,000 "by agreement" of the parties. On June 2, 2021, a jury trial was held. On the strangulation count, the trial judge entered a required finding of not guilty at the close of the Commonwealth's case. The jury returned verdicts of not guilty on all remaining charges. See Care & Protection of Zita, 455 Mass. 272, 282, 915 N.E.2d 1067 (2009) (court may take judicial notice of docket entries).

The defendant also moved in the Superior Court in Essex County for review of the Lynn District Court's...