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SJC-12008
SJC-12009

                  COMMONWEALTH   vs.   MARCEL A. DIGGS.

                  COMMONWEALTH   vs.   DAMIANE K. SOTO.



            Suffolk.      April 7, 2016. - July 29, 2016.

  Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                            & Hines, JJ.1



               Bail.   Arrest.   Statute, Construction.



     Civil actions commenced in the Supreme Judicial Court for
the county of Suffolk on November 9 and 17, 2015.

     The cases were reported by Spina, J.


     Edward Crane for the defendants.
     Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
     Timothy J. Cruz, District Attorney, & Robert C. Thompson,
Assistant District Attorney, for the Commonwealth, amicus
curiae, submitted a brief.


     DUFFLY, J.     The defendants, Marcel A. Diggs and Damiane K.


     1
       Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
                                                                       2


Soto, challenge orders for pretrial detention imposed by

District Court judges after hearings at which the judges

concluded that each defendant was dangerous within the meaning

of G. L. c. 276, § 58A (dangerousness statute).     Under that

statute, a person "held under arrest" on charges of one of an

enumerated list of offenses may be subject to "a hearing to

determine whether conditions of release will reasonably assure

the safety of any other person or the community."     G. L. c. 276,

§ 58A (4).    The defendants argue that neither of them was "held

under arrest" within the meaning of G. L. c. 276, § 58A (4),

when they appeared in court to be arraigned, and therefore that

they could not lawfully be subjected to a pretrial detention

hearing.     The defendants each filed petitions for extraordinary

relief pursuant to G. L. c. 211, § 3, in the county court.       The

single justice ordered the matters joined and reserved and

reported them to the full court.

    We conclude 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
                                                                     3


first appearance before the court."2    Id.   Accordingly, we affirm

the orders of pretrial detention.

     Background.   1.   Damiane Soto.   Soto was arrested on

charges of assaulting and threatening his pregnant girl friend,

in violation of G. L. c. 265, § 13A, and G. L. c. 275, § 2.3

After he was booked at the Marlborough police station, Soto

posted bail, which had been set at $1,000.     Two days later, a

criminal complaint issued charging Soto with the offenses

alleged.   That same day, when Soto appeared in court as

required, the Commonwealth moved for an order of pretrial

detention under the dangerousness statute.     Soto argued that he

could not be detained because he had been released on bail

following his arrest, and therefore he was not "held under

arrest" when he appeared for arraignment.     The judge rejected

     2
       As we observed in Mendonza v. Commonwealth, 423 Mass. 771,
780 (1996), the Commonwealth bears a "heavy burden" to satisfy
G. L. c. 276, § 58A, and therefore to subject an individual to
pretrial detention. The Commonwealth must establish by clear
and convincing evidence that "no conditions of release will
reasonably assure the safety of any other person or the
community." G. L. c. 276, § 58A (3).
     3
       General Laws c. 276, § 58A (1), provides, in relevant
part, that "[t]he [C]ommonwealth may move, based on
dangerousness, for an order of pretrial detention . . . [for] a
violation of an order pursuant to . . . [G. L. c. 209A,
§§ 3, 4, 5,] . . . or arrested and charged with a misdemeanor or
felony involving abuse as defined in [G. L. c. 209A, § 1]." The
Commonwealth sought pretrial detention on the theory that the
offenses for which Soto was charged are enumerated offenses
because they are misdemeanors involving "abuse" of a "family or
household member" as defined in G. L. c. 209A, § 1. Soto does
not dispute this contention.
                                                                    4


Soto's challenge to the legality of the proceedings, conducted a

dangerousness hearing, and ordered Soto held without bail

pursuant to G. L. c. 276, § 58A (4).

     2.   Marcel Diggs.   Diggs allegedly threatened to burn down

a house belonging to the mother of his former girl friend, while

the family was inside.    Following the threat, the former girl

friend filed a report with the Watertown police department and

sought a restraining order against Diggs.    A summons was issued

based on these events, and on the following day, a criminal

complaint issued charging Diggs with threatening to commit a

crime, G. L. c. 275, § 2.4   Shortly thereafter, following a

review of Diggs's criminal history, a Watertown police officer

obtained an arrest warrant for Diggs.    Diggs, however, had no

fixed address at that point, and police were unable to locate

him to execute the arrest warrant.

     Several months later, Diggs was held on a probation

detainer in Plymouth County for violating the terms of his

probation in an unrelated matter.    When authorities from the

Plymouth County house of correction transported Diggs to the

District Court to appear for arraignment on those charges, the

Commonwealth moved for pretrial detention based on

dangerousness.   Diggs argued that he was not subject to pretrial

     4
       Diggs does not dispute the Commonwealth's assertion that a
violation of G. L. c. 275, § 2, is an enumerated offense under
the dangerousness statute.
                                                                     5


detention because, although he was in the custody of Plymouth

County on charges of a probation violation, he had not been

arrested by the Watertown police in connection with the

complaint charging him with threatening to commit a crime, and

thus was not "held under arrest" for an enumerated offense at

the time of his arraignment.    The judge rejected Diggs's

challenge to the legality of the proceedings, conducted a

dangerousness hearing pursuant to G. L. c. 276, § 58A, and

ordered Diggs held in pretrial detention without bail.

    Discussion.     Whether the defendants were "held under

arrest," such that the Commonwealth lawfully could seek

dangerousness hearings under G. L. c. 276, § 58A, at the time of

their arraignments, is a question of statutory interpretation.

We review questions of law, such as statutory interpretation, de

novo.   Boston Police Patrolmen's Ass'n v. Boston, 435 Mass. 718,

719 (2002).   "Our task is to interpret the 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 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).     To the
                                                                  6


extent that the Legislature's intent is clear, "the statute, if

reasonably possible, must be construed to carry out that

intent."   Automobile Insurers Bur. of Mass. v. Commissioner of

Ins., 425 Mass. 262, 267 (1997), quoting Industrial Fin. Corp.

v. State Tax Comm'n, supra.   Because we assume generally that

the Legislature intends to act reasonably, "[w]e will not adopt

a literal construction of a statute if the consequences of such

a construction are absurd or unreasonable."   Champigny v.

Commonwealth, 422 Mass. 249, 251 (1996), quoting Attorney Gen.

v. School Comm. of Essex, 387 Mass. 326, 336 (1982).

    General Laws c. 276, § 58A (4), provides in relevant 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 releases will reasonably assure the
    safety of any other person or the community."

The statute does not define the meaning of "held under arrest"

for purposes of this subsection.   Relying on dictionary

definitions of the word "arrest," the defendants argue that a

defendant is held under arrest when he or she is arrested and

held in physical custody by a legal authority.   The defendants

also point to the United States Court of Appeals for the Ninth

Circuit's decision in United States v. Leal-Felix, 665 F.3d

1037, 1041 (9th Cir. 2011), in which the court interpreted the

word "arrest," as used in the United States sentencing

guidelines, to mean the process by which the police inform a
                                                                     7


suspect that she or he is under arrest, transport the suspect to

the police station, and book the suspect into jail.    The

defendants argue that they were not subject to pretrial

detention hearings because neither of them was arrested and in

the custody of the arresting authorities at the time of

arraignment.

    The Commonwealth contends that such a construction of the

statute would contravene the intent of the Legislature.      It

proffers the following hypothetical.   Three suspects, all with

identical criminal records demonstrating a history of violent

offenses, jointly commit an armed robbery.   One suspect is

arrested immediately and brought before the court for

arraignment.   The second suspect is arrested after the District

Court has closed for the day, and subsequently released on bail

with instructions to report to court the next day.    The third

suspect evades arrest, and an arrest warrant issues.    That

suspect is later arrested in another jurisdiction for an

unrelated offense, and eventually is brought before the court to

remove the warrant for the armed robbery.    Under the defendants'

proposed construction of the phrase "held under arrest," only

the first suspect would be subject to a dangerousness hearing,

even though all three suspects have the same criminal histories

and are charged with the commission of the same enumerated

offense.   The Commonwealth maintains that the Legislature could
                                                                   8


not have intended this outcome.

     We agree that construing the phrase "held under arrest" in

a strictly literal sense would thwart the dangerousness

statute's intended purpose to protect the public from dangerous

individuals who are awaiting trial for a specified set of

offenses that include, as here, offenses involving the abuse of

family members.   See Commonwealth v. Young, 453 Mass. 707, 709

(2009), quoting Mendonza v. Commonwealth, 423 Mass. 771, 780

(1996) ("The pretrial detention regime in [G. L. c. 276],

§ 58A[,] 'is explicitly predictive and seek[s] systematically to

identify those who may present a danger to society and to

incapacitate them before that danger may be realized'"); G. L.

c. 276, § 58A (1) (listing enumerated offenses).

     The Legislature enacted G. L. c. 276, § 58A, in the wake of

this court's decision in Aime v. Commonwealth, 414 Mass. 667,

682 (1993), which struck down the prior regime of pretrial

detention in part because it did not afford sufficient

procedural protections to individuals before they were subject

to pretrial detention.5   See 1994 House Doc. No. 4305.   The


     5
       In Aime v. Commonwealth, 414 Mass. 667, 682 (1993), we
struck down G. L. c. 276, § 58, as amended through St. 1992,
c. 201, § 3, the predecessor to G. L. c. 276, § 58A, because we
concluded that the statute as written violated the due process
clause of the Fourteenth Amendment to the United States
Constitution. The predecessor statute applied to all persons
arrested or subject to arrest, regardless of the seriousness of
the offense charged; it did not require the Commonwealth to
                                                                    9


Governor proposed the new form of the dangerousness statute,

originally entitled, "An Act to reduce crime committed by

defendants awaiting trial," to the Legislature.6   In his letter

to the House of Representatives and the Senate accompanying the

proposed bill, the Governor explained that the bill would cure

the procedural defects of the prior statute, and commented,

           "Government has no more important obligation than
      protecting the safety of its citizens, and yet dangerous
      arrestees who clearly pose an ongoing danger to our
      community too often are released out on bail or personal
      recognizance. Innocent lives, particularly the lives of
      women victimized by domestic violence continue to be put at
      risk. This legislation is critical to our ability to
      reduce, if not eliminate, that risk."

Id.   The Legislature approved House Bill No. 4305 on July 14,

1994.7    See St. 1994, c. 68.

      The phrase at issue here, "held under arrest," was included


prove dangerousness by any specific standard of proof; and it
did not provide the individual with the right to be heard, to
cross-examine witnesses, or to counsel. In Mendonza v.
Commonwealth, 423 Mass. at 780-788, we concluded that the
amended version of the dangerousness statute, at issue here,
provided adequate procedural protections by limiting its
application to situations where there was probable cause to
believe that an individual had committed certain enumerated
offenses, requiring the Commonwealth to prove dangerousness by
clear and convincing evidence, and affording a right to a
hearing and the right to counsel.
      6
       The title subsequently was changed to "An Act relative to
the release on bail of certain persons." See St. 1994, c. 68.
      7
       Enactment of G. L. c. 276, § 58A, followed public debate
on a widely publicized killing of a woman by her husband, who
had been released on bail following an earlier attack against
her. See Killing of Malden Woman Ignites Fight on Bail Reform,
Boston Globe, May 9, 1994.
                                                                  10


in the Governor's proposed bill, and the Legislature adopted

that provision virtually verbatim.   See 1994 House Doc.

No. 4305; St. 1994, c. 68, § 6.   Based on this, we conclude that

the Legislature enacted G. L. c. 276, § 58A, with the intent of

protecting 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.   See Mendonza v. Commonwealth, supra at

781 (fact that "a surprising percentage of crimes are committed

by persons awaiting trial" provided support for Commonwealth's

need to detain "persons who pose a particular danger to the

public").

    Given this explicitly articulated 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 magistrate, those who are arrested and in

physical custody, and those for whom an arrest warrant has

issued, but has not been executed.   See Reade v. Secretary of

the Commonwealth, 472 Mass. 573, 578 (2015), cert. denied, 136

S. Ct. 1729 (2016), quoting Watros v. Greater Lynn Mental Health

& Retardation Ass'n, 421 Mass. 106, 113 (1995) ("[I]t is a well-

established cannon of statutory construction that a strictly

literal reading of a statute should not be adopted if the result

will be to thwart or hamper the accomplishment of the statute's

obvious purpose, and if another construction which would avoid
                                                                   11


this undesirable result is possible").

    We are not persuaded by the defendants' assertion that the

Legislature intended to draw such a distinction in order to

encourage defendants who have been released on bail, or who have

not yet been arrested, to appear in court, rather than to

default.   Nothing in the language, structure, or history of the

dangerousness statute suggests that the use of the phrase "held

under arrest" indicates a legislative intent to provide an

incentive to persons who have been arrested or are subject to

arrest, but who are not in custody, to appear in court.

Moreover, the Legislature has criminalized the failure to appear

in court after release on bail, thereby providing an explicit

disincentive for an individual to default.   See G. L. c. 276,

§ 82A.   Adopting the defendants' proposed construction would

thwart the legislative purpose to permit a judge to determine

whether someone charged with a crime is sufficiently dangerous

so as to warrant detention while awaiting trial, or whether

additional safeguards are required in order to allow the

individual to be admitted to bail while protecting the public.

See Commonwealth v. Scott, 464 Mass. 355, 358 (2013), quoting

Opinion of the Justices, 313 Mass. 779, 782 (1943) ("the

construction of a word or phrase may vary from its plain meaning

when such a meaning would 'involve a construction inconsistent

with the manifest intent of the law-making body or repugnant to
                                                                  12


the context of the same statute").

    In sum, the phrase "held under arrest," within the meaning

of G. L. c. 276, § 58A (4), refers to any person who has been

arrested or for whom an arrest warrant has issued in connection

with one of the enumerated offenses in G. L. c. 276, § 58A (1).

Under this construction, both defendants were "held under

arrest," and therefore properly were subject to a dangerousness

hearing pursuant to G. L. c. 276, § 58A (4), where each hearing

was held "immediately upon the person's first appearance before

the court."

                                     Orders for pretrial
                                       detention affirmed.
