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SJC-12687

                   JAMES FINN     vs.   COMMONWEALTH.



            Suffolk.       April 2, 2019. - August 13, 2019.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                             Kafker, JJ.


Pretrial Detention. Practice, Criminal, Arraignment.        Arrest.
     Statute, Construction.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on January 8, 2019.

    The case was reported by Budd, J.


     Lisa S. Core for the petitioner.
     Catherine P. Sullivan, Assistant District Attorney
(Christina P. Ronan, Assistant District Attorney, also present)
for the Commonwealth.
     Benjamin H. Keehn & Rebecca Kiley, Committee for Public
Counsel Services, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.


    GAZIANO, J.        In this case, we consider whether G. L.

c. 276, § 58A, allows the Commonwealth to seek a dangerousness

hearing when a defendant appears before a Superior Court judge

for arraignment pursuant to a postindictment summons, rather
                                                                     2


than an arrest warrant.    We conclude that the language of the

statute permits a Superior Court judge to conduct a

dangerousness hearing upon a defendant's first appearance in

that court, regardless of whether that appearance is pursuant to

a summons or to an arrest warrant.1

     1.   Background.   In December of 2017, the defendant was

arrested and charged by criminal complaint in the District Court

with one count of indecent assault and battery on a child

under the age of fourteen, G. L. c. 265, § 13B; one count of

open and gross lewdness, G. L. c. 272, § 16; and three counts of

dissemination of obscene material to a minor, G. L. c. 272,

§ 28.    The offense involved allegations concerning three

children (two of whom were related) who lived in the defendant's

apartment building.     At arraignment, the Commonwealth moved for

pretrial detention pursuant to G. L. c. 276, § 58A.    After an

evidentiary hearing, a District Court judge ordered that the

defendant be held without bail.    The judge then allowed the

defendant's motion for reconsideration, and ordered that the

defendant could be released with conditions, including global

positioning system monitoring, a "no contact" order with the

alleged victims and the witnesses, and a prohibition on alcohol




     1 We acknowledge the amicus letter submitted by the
Committee for Public Counsel Services.
                                                                    3


and drug use.   The defendant was released under these conditions

in January 2018.

     Approximately three weeks later, in February 2018, a grand

jury indicted the defendant on three counts of indecent assault

and battery on a child under the age of fourteen, and two counts

of disseminating obscene material to a minor, for the same

events underlying the December 2017 complaint.   The prosecutor

arranged with defense counsel to schedule the defendant's

arraignment in the Superior Court; no new arrest warrant was

issued.   The defendant complied with a summons, and was

arraigned in March 2018.    At arraignment, the Commonwealth moved

for pretrial detention pursuant to G. L. c. 276, § 58A.     The

defendant opposed the motion on the ground that the Commonwealth

lacked the right to seek a dangerousness hearing in the Superior

Court because the defendant had not been "'subject to arrest' or

'held under arrest' when he appeared for his arraignment,

pursuant to [a] summons."

     In a written memorandum of decision, a Superior Court judge

allowed the motion for pretrial detention, without prejudice.2


     2 The judge sufficiently explained his reasoning, the
options he considered, and how he reached his conclusion. See
G. L. c. 276, § 58A (5) (in determining "whether there are
conditions of release that will reasonably assure the safety of
any other individual or the community," judge "shall . . . take
into account the nature and seriousness of the danger posed to
any person or the community that would result by the person's
release, the nature and circumstances of the offense charged,
                                                                   4


The judge concluded that this court's interpretation of G. L.

c. 276, § 58A, as set forth in Commonwealth v. Diggs, 475

Mass. 79, 80 (2016), allowed the Commonwealth to seek a

dangerousness hearing in the Superior Court notwithstanding the

defendant's release on conditions following his arraignment in

the District Court.   The judge considered and rejected the

defendant's proffered conditions of release (including

relocating to a motel), and found "that such conditions do not

reasonably assure the safety of young children in the

community."3   See G. L. c. 276, § 58A (3).   Approximately ten

months later, the defendant filed an emergency petition for




the potential penalty the person faces, the person's family
ties, employment record and history of mental illness, his
reputation, the risk that the person will obstruct or attempt to
obstruct justice or threaten, injure or intimidate or attempt to
threaten, injure or intimidate a prospective witness or juror,
his record of convictions, if any, any illegal drug distribution
or present drug dependency, whether the person is on bail
pending adjudication of a prior charge, whether the acts alleged
involve abuse . . . or violation of a temporary or permanent
[restraining] order . . . , whether the person has any history
of [protective] orders issued against him [or her] . . . , [and]
whether he [or she] is on probation, parole or other release
pending completion of sentence . . .").

     3 The judge determined that because the defendant could not
identify a "suitable residence and custodian," the defendant
would need to reside at a place of public accommodation; the
judge then concluded that "[i]f children in a large apartment
building were at risk, as this court has found probable cause to
believe, children in an unsupervised place of public
accommodation would also be at risk." Nonetheless, the
defendant "remain[ed] free to make a more significant
presentation of a proffered custodian and residence."
                                                                    5


interlocutory review in the county court, pursuant to G. L.

c. 211, § 3, seeking to vacate the order of pretrial detention.

The single justice reserved and reported the matter to the full

court.

     2.   Discussion.    We confine our review to the legal

question before us:     the defendant's argument that the

Commonwealth lacked authority to move to detain him pursuant to

G. L. c. 276, § 58A, because he was not "under arrest" or

subject to arrest within the meaning of the statute when he

appeared in the Superior Court pursuant to a summons.4      See

Commonwealth v. Giang, 402 Mass. 604, 608 (1988).     We review

this question of statutory interpretation de novo.     Diggs, 475

Mass. at 81.

     We interpret a statute "according to the intent of the

Legislature ascertained from all its words construed by the

ordinary and approved usage of the language, considered in

connection with the cause of its enactment, the mischief or

imperfection to be remedied and the main object to be

accomplished, to the end that the purpose of its framers may be




     4 We note that this opinion likely will be released after
the completion of the defendant's trial, meaning that the case
will become moot. Nonetheless, we address this issue because it
is "of recurring importance to the administration of justice in
the Commonwealth," and likely to evade review. See Commonwealth
v. Lester L., 445 Mass. 250, 253 (2005); Mendonza v.
Commonwealth, 423 Mass. 771, 777 (1996).
                                                                   6


effectuated."   O'Brien v. Director of the Div. of Employment

Sec., 393 Mass. 482, 487–488 (1984), quoting Industrial Fin.

Corp. v. State Tax Comm'n, 367 Mass. 360, 364 (1975).

    The primary purpose of G. L. c. 276, § 58A, is to

"protect[] the public from the potential harm posed by persons

who have been arrested or are subject to arrest, who have been

found to be dangerous."   Diggs, 475 Mass. at 84.   Accordingly,

the statute "permits pretrial detention of persons accused of

certain crimes on the grounds of dangerousness, in order to

protect public safety."   Commonwealth v. G.F., 479 Mass. 180,

198 (2018), citing Mendonza v. Commonwealth, 423 Mass. 771, 778,

782, 790 (1996).

    As relevant here, G. L. c. 276, § 58A (4), provides in

pertinent part:

    "When a person is held under arrest for an offense listed
    in subsection (1) and upon a motion by the [C]ommonwealth,
    the judge shall hold a hearing to determine whether
    conditions of release will reasonably assure the safety of
    any other person or the community."

In Diggs, 475 Mass. at 82, we noted that the statute does not

provide a definition of the phrase "held under arrest," within

the meaning of this subsection.   We rejected a strictly literal

interpretation of the phrase, and observed that, in light of the

statute's primary purpose to protect the public, "it is unlikely

that the Legislature intended to draw arbitrary distinctions

between individuals who have been released on bail by a
                                                                     7


magistrate, those who are arrested and in physical custody, and

those for whom an arrest warrant has issued, but has not been

executed."   Id. at 84.    See Commonwealth v. Peterson, 476 Mass.

163, 167 (2017) ("we do not adhere . . . to a literal reading of

a statute if doing so would yield an 'absurd' or 'illogical'

result" [citation omitted]).     We concluded in Diggs. supra at

80, "that where a criminal defendant has been arrested or is

subject to an outstanding arrest warrant for an enumerated

offense, the defendant may be subject to pretrial detention

under G. L. c. 276, § 58A (4), even if the defendant is not held

in custody following the arrest, so long as the dangerousness

hearing takes place 'immediately upon the person's first

appearance before the court.'"

    The defendant nonetheless argues that the Superior Court

judge lacked authority to detain him under G. L. c. 276, § 58A.

The defendant maintains that he "was not 'held under arrest' --

as the terms of the 'dangerousness' statute requires -- or

subject to arrest -- as interpreted by Diggs -- when he first

appeared . . . in the . . . [S]uperior [C]ourt, notwithstanding

that he was previously arrested and arraigned in the . . .

[D]istrict [C]ourt."      We do not agree.

    The defendant would require the Commonwealth to rearrest

any individual who previously had been released on conditions

after a dangerousness hearing in the District Court, or released
                                                                    8


under G. L. c. 276, § 58, should the Commonwealth seek a

dangerousness hearing following an indictment and subsequent

arraignment in the Superior Court.   This argument is unavailing

and would produce illogical results.     It also is inconsistent

with our existing precedent.   See Commonwealth v. Murchison, 428

Mass. 303, 303 (1998) ("The Superior Court must hold a new

hearing in order to determine whether a defendant previously

subject to a pretrial detention order in a District Court may be

detained without bail after an arraignment in the Superior

Court").   See also Commonwealth v. Parella, 464 Mass. 274, 280

(2013) ("an indictment and a complaint are the products of two

distinct procedures, and are not interchangeable labels for the

commencement of a criminal proceeding"); Commonwealth v. Madden,

458 Mass. 607, 607 (2010) (Superior Court judge has "authority

to review and modify pretrial conditions of release imposed on a

defendant by a District Court judge pursuant to G. L. c. 276,

§ 58A"); Commesso v. Commonwealth, 369 Mass. 368, 373 (1975) (G.

L. c. 276, § 58A (4), "requires the Superior Court judge to

consider the matter anew and to exercise his [or her] own

judgment and discretion").

    Moreover, subjecting a defendant to arrest is more

disruptive to that defendant than is a mutual agreement to

appear in court pursuant to a summons.    The defendant's reading

would result in increased arrests, and unnecessary use of
                                                                    9


Commonwealth and court resources, where an arrest may be

unnecessary.   We discern "nothing in the history or purpose of

the statute that justifies such an extreme and excessive

result."   Peterson, 476 Mass. at 168.

     When a defendant is indicted, regardless of whether the

indictment was preceded by a criminal complaint, that defendant

is subject to the possibility of arrest on those charges if a

court determines that the defendant is unlikely to "appear upon

a summons alone."     See Reporters' Notes to Rule 6, Mass. Ann.

Laws Court Rules, Rules of Criminal Procedure, at 1504

(LexisNexis 2018).5    As the Commonwealth acknowledged at argument

before us, however, requesting a defendant's presence in court

through a summons is far preferable to arresting the defendant.

See id. ("The preference for the issuance of summonses operates

to conserve law enforcement resources by releasing the police

for other duties, and conserves the resources of the court and

parties").   See also Commonwealth v. Mogelinski, 466 Mass. 627,

634 (2013) (noting preference for summonses over warrants to

arrest in juvenile context).    Practically, both an arrest and a




     5 We note that the defendant in this case was indicted on
two charges (involving the same conduct) for which no complaint
had been filed in the District Court. Accordingly, his
appearance in the Superior Court pursuant to a summons was in
fact his first appearance in any court with respect to two of
the charges against him.
                                                                  10


postindictment summons bring a defendant before a Superior Court

judge for the first time for arraignment on indicted charges.

    Given that G. L. c. 276, § 58A, is intended primarily to

protect the public, see Diggs, 475 Mass. at 84, citing 1994

House Doc. No. 4305 and St. 1994, c. 68, the Legislature would

not have intended to preclude the Commonwealth from being able

to move for a dangerousness hearing should the Commonwealth seek

the defendant's presence in court through a summons, as Mass. R.

Crim. P. 6, 378 Mass. 842 (1979), encourages, where the

defendant is likely to appear without being arrested.     See E.B.

Cypher, Criminal Practice and Procedure § 3:35 (4th ed. 2014).

Accordingly, we clarify that a Superior Court judge has

authority to conduct a dangerousness hearing pursuant to G. L.

c. 276, § 58A, regardless of whether a defendant appears before

the judge for the first time pursuant to a postindictment

summons or an arrest warrant; in either instance, the

defendant's first appearance in the Superior Court constitutes a

"first appearance" within the meaning of Diggs, supra at 85.

    The matter is remanded to the county court for entry of an

order denying the defendant's petition for interlocutory relief

pursuant to G. L. c. 211, § 3.

                                   So ordered.
