Paquette v. Commonwealth
| Decision Date | 06 May 2003 |
| Citation | 795 NE 2d 521,440 Mass. 121 |
| Parties | DONALD PAQUETTE vs. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Mary E. Bennett for Donald Paquette
Sharon L. Sullivan-Puccini, Assistant District Attorney, for the Commonwealth.
Brownlow M. Speer, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
In this case, we examine the constitutionality of paragraph three of G.L. c. 276, § 58, and consider the conditions for the revocation of a defendant's bail when he is charged with committing a subsequent crime during the period of his release on bail. A judge in the District Court ordered that Donald Paquette (defendant) be held without bail under this statutory provision for his alleged violation of an abuse prevention order issued pursuant to G.L. c. 209A, § 7. The defendant filed a petition for relief pursuant to G.L. c. 211, § 3, challenging the judge's order. A single justice of this court reserved and reported the case, without decision, to the full court. For the reasons set forth below, we affirm the order revoking the defendant's bail.1
1. Background. The facts, as set forth by the parties in a statement of agreed facts, are as follows. On September 23, 2002, the defendant was arrested and arraigned in the Fall River District Court on a charge of violating an abuse prevention order issued pursuant to G.L. c. 209A, § 7. The alleged violation had occurred the previous day when the defendant telephoned the complainant and told her that he was coming over to her apartment to see her. Following a hearing, cash bail was set in the amount of $5,000, with conditions, and the defendant was advised of the potential for bail revocation pursuant to G.L. c. 276, § 58, if he were charged with committing a subsequent offense during the period of his release. On September 24, 2002, after a bail review hearing in the Superior Court, the defendant was released on personal recognizance.
On September 26, 2002, the defendant was again arrested and arraigned in the Fall River District Court on a charge of violating the same abuse prevention order issued pursuant to G. L. c. 209A, § 7. The alleged violation had occurred the previous day and involved another telephone call made to the same complainant. The Commonwealth requested that the judge revoke the defendant's bail on the prior charge. The defendant was held overnight, pending a bail revocation hearing the next day. At the hearing, the Commonwealth argued that bail revocation was warranted because the defendant had been given a bail revocation warning and had committed a new offense on September 25, 2002. The Commonwealth presented to the court the police report for the September 25 incident and the defendant's board of probation record. The judge found probable cause to believe that the defendant had committed a new crime during the period that he had been free on bail. The judge further determined that the release of the defendant would seriously endanger another person and the community, and that the defendant's detention was necessary to reasonably assure their safety. Accordingly, the judge revoked the defendant's bail. The judge filled out a form entitled "Revocation of Terms of Release" that set forth his findings and his revocation order pursuant to G. L. c. 276, § 58.2
Later that same day, defense counsel requested that the bail revocation proceeding be reopened. Defense counsel informed the judge that, after the hearing, he had been approached by two witnesses who cast doubt on whether the defendant had, in fact, violated the abuse prevention order. Defense counsel sought the opportunity to present the testimony of these two witnesses and argued that, pursuant to G. L. c. 276, § 58, the court could not fairly deny his request for a further hearing on the issue of probable cause. The judge stated that he had already found probable cause based on the statements from the district attorney and the police report. The judge pointed out that the defendant had been given a hearing, that the defendant's arguments went to the merits of the case, and that defense counsel could file a motion to dismiss the case if he had evidence that the crime had not been committed. The judge denied the defendant's request for a further hearing. Defense counsel then filed a motion requesting findings of fact and rulings of law from the judge in support of his decision to revoke the defendant's bail. The motion was denied.
On October 7, 2002, the defendant filed in the Superior Court an emergency petition for writ of habeas corpus, challenging the legality of his pretrial detention based on the bail revocation proceeding. The defendant claimed that such proceeding violated G. L. c. 276, § 58, and his rights to due process under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and arts. 1, 7, 12, and 26 of the Massachusetts Declaration of Rights. The sheriff of Bristol County, represented by the Attorney General, filed a motion to dismiss the petition for writ of habeas corpus. Following a hearing, a judge denied the defendant's petition and dismissed the case for lack of jurisdiction. The defendant then filed his petition for relief pursuant to G. L. c. 211, § 3.
2. Constitutional claims. The thrust of the defendant's arguments is that the third paragraph of G. L. c. 276, § 58, is unconstitutional because it violates the substantive and procedural due process provisions of the Fourteenth Amendment and arts. 1, 10, and 12. He contends that this statutory provision is not narrowly tailored to further a compelling government interest because it permits the pretrial detention of defendants charged with the commission of any subsequent offense during the period of their release on bail, not merely those defendants charged with committing acts of physical force or violence whose release may actually pose a danger to the community. The defendant argues that the judge's mandatory statutory inquiry into dangerousness essentially creates a broad preventive detention scheme that is punitive in nature without a finding of the defendant's guilt beyond a reasonable doubt. Furthermore, the defendant contends that the third paragraph of G. L. c. 276, § 58, is unconstitutional because it does not provide adequate procedural safeguards against the erroneous deprivation of liberty where pretrial detention may be ordered, at the judge's discretion, on a mere suspicion of dangerousness.3
(a) Substantive due process. "So-called `substantive due process' prevents the government from engaging in conduct that `shocks the conscience,' Rochin v. California, 342 U.S. 165, 172 (1952), or interferes with rights `implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325-326 (1937)." United States v. Salerno, 481 U.S. 739, 746 (1987). Where, as here, the right involved, freedom from physical restraint, is "fundamental," we "`must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation,' Moore v. East Cleveland, 431 U.S. 494, 499 (1977)." Aime v. Commonwealth, 414 Mass. 667, 673 (1993). See Commonwealth v. Bruno, 432 Mass. 489, 503 (2000). A State "may impose a regulatory restraint on the individual in narrowly-circumscribed situations." Aime v. Commonwealth, supra at 677-678. A statute imposing such a restraint typically will be upheld only if it is "narrowly tailored to further a legitimate and compelling governmental interest." Id. at 673. See Commonwealth v. Querubin, ante 108, 116 (2003).
General Laws c. 276, § 58, sets forth the conditions both for a defendant's initial release on bail pending adjudication of the charges against him, and for the possible revocation of bail if he is charged with committing a subsequent offense during the period of his release. The first paragraph of § 58 provides, in relevant part:
"A justice or a clerk or assistant clerk of the district court. . . in accordance with the applicable provisions of section fifty-seven, shall, when a person is held under arrest or committed either with or without a warrant for an offense other than an offense punishable by death . . . hold a hearing in which the defendant and his counsel, if any, may participate and inquire into the case and shall admit such person to bail on his personal recognizance without surety unless said justice, clerk or assistant clerk . . . determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person before the court."
The preferred result under G. L. c. 276, § 58, is release on personal recognizance. See Commonwealth v. Dodge, 428 Mass. 860, 865 (1999), and cases cited. "This statute `was not intended to give the courts discretion to deny bail but rather to establish the right of the accused, in most circumstances, to be admitted to bail.'" Commonwealth v. Finelli, 422 Mass. 860, 863 (1996), quoting Commonwealth v. Roukous, 2 Mass. App. Ct. 378, 381 (1974). See Commonwealth v. Hampe, 419 Mass. 514, 519 (1995) (); Delaney v. Commonwealth, 415 Mass. 490, 495 (1993) ().
Pursuant to the first paragraph of G. L. c. 276, § 58, when a person is originally admitted to bail, he must be advised that, as an explicit condition of release, "should said person be charged with a crime during the period of his release, his bail may be revoked in accordance with the third paragraph...
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