Myers v. Com.

• Citation: 298 N.E.2d 819,363 Mass. 843
• Parties: Kenneth MYERS v. COMMONWEALTH et al 1 .
• Decision Date: 17 July 1973
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 819

298 N.E.2d 819

363 Mass. 843

Kenneth MYERS v. COMMONWEALTH et al ¹.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 9, 1973.

Decided July 17, 1973.

Charles J. Artesani, Jr., Asst. Dist. Atty., for the commonwealth.

Elliot R. Levine, University Heights, Ohio (Roderick L. Ireland, Allston, with him), for Kenneth Myers.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ. TAURO, Chief Justice.

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 power 'to correct and prevent errors and abuses' in probable cause hearings conducted in the District Courts of the Commonwealth. The petitioner asks us to vacate a finding of probable cause in the Municipal Court of the Roxbury District and remand the case to that court for a new probable cause hearing consistent with the requirements of G.L. c. 276, § 38, which he alleges were violated in his initial preliminary hearing. This petition comes before us upon a reservation and report without decision by a single justice of this court 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,^A we can and should 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 manner in which the Municipal Court judge conducted the petitioner's probable cause hearing violated his 'substantive' rights.

The pertinent facts may be summarized briefly. On February 23, 1973, a preliminary examination was held pursuant to G.L. c. 276, § 38, before a judge of the Municipal Court to determine whether there was probable cause to support the prosecution of the petitioner on charges of rape, assault by means of a dangerous weapon, breaking and entering at night, and breaking and entering at night and committing rape of a person lawfully therein. At that probable cause hearing, only the complaining witness was called to testify on behalf of the Commonwealth. At the end of direct examination the petitioner's counsel began his cross-examination of the witness. When the petitioner's counsel questioned the complaining witness about her alleged belief in witchcraft, the judge stated that he had heard enough testimony to find probable cause which made further cross-examination by the petitioner's counsel unnecessary. The petitioner's counsel stated to the court that he wished to complete his cross-examination of the complaining witness, and introduce further evidence ³ in the defendant's behalf. The judge repeated his finding of probable cause and terminated the hearing. The question before us is whether the judge's finding of probable cause before the petitioner had an opportunity to complete cross-examination of the complaining witness and to present relevant testimony and witnesses in his own behalf violated the petitioner's 'substantive rights.'

1. The rules governing the conduct of preliminary hearings in the Commonwealth are summarily set forth in G.L. c. 276, § 38, 'The court or justice before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. . . . (T)he witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution' ⁴ (emphasis supplied). The Commonwealth contends that this statute should not be interpreted as granting the defendant an absolute 'inflexible' right to cross-examine prosecution witnesses and present testimony in his own behalf at the preliminary hearing because the examining magistrate has the discretion to find probable cause after listening only to the witnesses for the prosecution. The petitioner argues that c. 276, § 38, grants defendants at such hearings mandatory fundamental procedural rights to confront their accusers and present testimony in their own behalf.

The petitioner's construction of the statute is supported by its express mandatory terms ('witnesses for the prisoner if any, shall be examined' (emphasis supplied)). 'It is difficult to see how language could have been framed which would more clearly and categorically impose an absolute obligation.' Assessors of Springfield v. New England Tel. & Tel. Co., 330 Mass. 198, 201, 112 N.E.2d 260, 262. However, '(t)he word 'shall' as used in statutes . . . is not of inflexible signification and not infrequently is construed as permissive or directory in order to effectuate a legislative purpose. Cheney v. Coughlin, 201 Mass. 204, 87 N.E. 744. Rea v. Alderman of Everett, 217 Mass. 427, 430, 105 N.E. 618.' Swift v. Registrars of Voters or Quincy, 281 Mass. 271, 276, 183 N.E. 730, 732. Therefore, the controversy before us as to the proper statutory construction of c. 276, § 38, cannot be resolved without examining the purposes (and procedure) of a probable cause hearing in order to determine which construction of the statute best effectuates those purposes.

2. The judge's chief task at a preliminary hearing is to determine whether the defendant should be bound over for trial in the Superior Court. See G.L. c. 218, § 30. Defendants are held for trial only if the examining magistrate funds (1) 'that a crime has been committed' ⁵ and (2) 'that there is probable cause to believe the prisoner guilty.' G.L. c. 276, § 42 (and see G.L. c. 276, § 41). These two requirements are designed to establish an effective bind-over standard which distinguishes between groundless or unsupported charges and meritorious prosecutions. Thus, the preliminary hearing's primary function is to screen out at this early but critical stage of the criminal process those cases that should not go to trial thereby sparing individuals from being held for trial, and from being unjustifiably prosecuted (but see fn. 16). See Jennings v. Superior Court of Contra Costa County, 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304.

The United States Supreme Court recognized the importance of the preliminary hearing's screening function in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, where the court held that Alabama's preliminary hearing is a 'critical stage' of the State's criminal process at which the accused is entitled to the aid of counsel. 'Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel (within the limitations of relevancy) can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.' P. 9, 90 S.Ct. p. 2003. In light of the reasoning in the Coleman case, we held in Commonwealth v. Britt, Mass., ^b 285 N.N.2d 780, that probable cause hearings were 'a critical stage' of criminal proceedings in the Commonwealth.

Since the examining magistrate's chief task is to determine whether there is sufficient credible evidence to proceed to trial which justifies binding the defendant over, his determination of probable cause to bind over is somewhat analogous in function to the trial court's ruling on a motion for a directed verdict as to whether there is sufficient evidence to send the case to the jury. Unfortunately since this court has never defined the quantum of evidence needed to satisfy probable cause to bind over, some District Court judges have equated probable cause to bind over with probable cause for arrest (and search).

In finding probable cause to arrest, the examining magistrate has determined only that at the time of the arrest (or at the time when the warrant for arrest is requested), the 'facts and circumstances within . . . (the officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offence.' COMMONWEALTH V. STEVENS, MASS., 283 N.E.2D 673.^C In this context, the term 'probable cause' 'means less than evidence which would justify condemnation.' Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364. Furthermore, such a finding of probable cause may rest upon hearsay evidence which is not admissible in a criminal trial. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327. As the court stated in Bringar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, 'There is a large difference between the two things to be proved (guilt and probable cause to arrest or search) as well as between the tribunals which determine them and therefore a like difference in the quanta and modes of proof required to establish them.' See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684. See also Commonwealth v. Lillis, 349 Mass. 422, 424, 209 N.E.2d 186.

Similarly, there is a 'large difference'...