Heard: November 5, 2018.
action commenced in the Supreme Judicial Court for the county
of Suffolk on May 25, 2018. The case was considered by
Merritt Schnipper for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
appeal we review and apply the legal standards for bail
decisions in cases where the defendant has been charged with
murder in the first degree and the judge must decide whether
the defendant should be admitted to bail, or held without
bail to assure the defendant's appearance at future court
proceedings. The defendant,  Pedro Vasquez, has been in
pretrial detention since his arrest on January 5, 2015, for
the murder of his girlfriend. Following the defendant's
indictment and arraignment for murder in the first degree and
related charges, a judge of the Superior Court ordered him to
be held without right to bail, and the defendant's four
subsequent requests for admission to bail in the Superior
Court were all denied. The defendant then challenged the
denial of his bail requests in a petition for relief under G.
L. c. 211, § 3, which was also denied by a single
justice of the county court. In this appeal from the judgment
of the single justice, the defendant contends that, under the
constitutional and other legal standards applicable to bail
decisions, the Commonwealth's anticipated evidence
against him was not strong enough to justify his pretrial
detention without bail, given his local family ties and lack
of past court defaults or "meaningful" prior
convictions. We conclude that a defendant charged with murder
in the first degree has no right to bail, but may be admitted
to bail in the discretion of the judge. The judge's
exercise of discretion should not rest solely on a
presumption against bail, but should be based on a careful
review of the specific details of the case and the
defendant's history. The judge should consider the nature
and circumstances of the offense and weigh the
defendant's risk of flight in light of the strength or
weakness of the Commonwealth's case and the potential
penalty of a sentence to life in prison. Further appropriate
considerations include the defendant's family ties,
financial resources, length of residence in the community,
character and mental condition, and record of convictions and
appearances at court proceedings or of any previous flight to
avoid prosecution or any failure to appear at any court
proceedings, along with the other factors listed in G. L. c.
276, §§ 57 and 58, insofar as they are relevant.
The defendant is entitled to representation by counsel at a
hearingand the opportunity to present argument
concerning the relevant bail factors.
detention without bail is appropriate where the judge
concludes, based on a preponderance of the evidence and the
relevant factors for bail, that it is necessary to assure the
defendant's appearance at future court proceedings. The
decision must be accompanied by a statement of findings and
reasons, either in writing or orally on the record. Finally,
when a bail order comes before a judge for reconsideration,
the judge should also consider, among other factors, the
length of the defendant's pretrial detention and the
equities of the case, including the extent of the
prosecution's responsibility for the delay, and the
strength of the Commonwealth's case, especially if the
character of the evidence has changed.
these standards in the present case, we conclude that the
bail judge did not abuse his discretion or commit an error of
law in denying the defendant's bail request, and
therefore affirm the single justice's judgment denying
the defendant's petition.
summarize the facts based on the record available to the bail
judge, reserving certain details for further discussion
below. Early in the morning of January 5, 2015, police
officers responding to a 911 call discovered the body of a
woman slumped over in the passenger seat of a sport utility
vehicle (SUV) parked on the side of the road in Springfield.
She had suffered a single gunshot wound to the head and was
bleeding profusely. Attempts to revive her failed, and she
was declared dead at the scene. The victim was later
identified as the defendant's girlfriend.
discovered that a home across the street from the crime scene
maintained a video security system. The detectives viewed the
videotape footage from this system and found that it included
the sequence of events surrounding the shooting. The
videotape shows the SUV stopping and parking on the street.
The vehicle's rear passenger door on the driver's
side opens, and an argument between a man and a woman in
Spanish can be heard. The woman demands that the man return
her keys and threatens to call the police. A single gunshot
can then be heard as the male leaves the vehicle and runs
also interviewed the victim's family and friends,
including the victim's son, her brother, and her
brother's girlfriend. The officers learned that the
defendant and the victim had been romantically involved and
had lived together for four or five years, along with the
victim's son. The officers also learned that there had
been a history of domestic violence between the defendant and
the victim. The victim's son, her brother, and her
brother's girlfriend were all familiar with the defendant
due to his relationship with the victim. At the police
station, the officers played the security videotape
separately for each of them, first playing only the audio
portion and then showing the video portion to each witness.
In each case, they identified the voices of the man and the
woman as the defendant and the victim; the victim's
brother also noted that the victim had used the
defendant's name twice. After being shown the video
recording, they also identified the man who fled the vehicle
as appearing to be the defendant, although they could not
make a positive identification because the man's face was
on this information, a warrant was issued for the
defendant's arrest, and he was taken into custody later
that evening. Following the defendant's indictment and
arraignment on charges of murder in the first degree, G. L.
c. 265, § 1; unlawful possession of a firearm, G. L. c.
269, § 10 (a.); and unlawful possession of a loaded
firearm, G. L. c. 269, § 10 (n), a Superior Court judge
ordered him to be held without right to bail in May 2015.
Judges of the Superior Court also denied the defendant's
four subsequent requests for admission to bail after hearings
in July 2016, December 2016, December 2017, and May 2018.
Following the December 2017 and May 2018 decisions of a judge
(bail judge) to deny bail, the defendant then filed a
petition for review under G. L. c. 211, § 3, in the
county court, which was denied by a single justice without
hearing in June 2 018.
Standard of review.
explain further infra, bail decisions concerning
defendants charged with murder in the first degree are
subject to the discretion of the bail judge, and therefore
the bail judge's decision is reviewed for abuse of
discretion or error of law. See Commonwealth v.
Marshall, 373 Mass. 65, 66-67 (1977) (applying abuse of
discretion standard in reviewing denial of bail where
defendant was charged with murder in first degree);
Commonwealth v. Baker, 343 Mass. 162, 168-169 (1961)
(considering whether denial of bail where defendant was
charged with murder in first degree may have been tainted by
error of law). In this case, the single justice denied the
defendant's petition under G. L. c. 211, § 3,
because the single justice concluded that the bail judge did
not abuse his discretion in rejecting the defendant's
request for bail.
general matter, we review decisions of the single justice
under G. L. c. 211, § 3, for clear error of law or abuse
of discretion. See Brangan v. Commonwealth, 477
Mass. 691, 697 (2017); Commonwealth v. Chism, 476
Mass. 171, 176 (2017); Boston Herald, Inc. v.
Sharpe, 432 Mass. 593, 602 (2000) (Sharpe) . In this
instance, however, the single justice did not exercise his
discretion,  and consequently, we focus our attention
on his legal ruling that the bail judge did not abuse his
discretion. We review this legal ruling independently to
determine whether it is erroneous, without giving any
deference to the single justice's decision. See
Sharpe, supra at 603. In effect, this means
that we must address the same legal issue presented to the
single justice: whether the bail judge's decision to deny
the defendant's bail request involved an abuse of
discretion or error of law. See Chism,
supra at 182-185 (directly considering whether trial
judge abused his discretion in denying impoundment motion,
without deference to rulings on that issue by single justice
of Appeals Court and single justice of county court under G.
L. c. 211, § 3).
as the bail judge's decision involved an exercise of
discretion, we must accord it great deference, and we will
not overturn his decision for abuse of discretion merely
because we would have reached a different result.
L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014) . But that deference is not unlimited. "[A]
judge's discretionary decision constitutes an abuse of
discretion where we conclude the judge made a clear error of
judgment in weighing the factors relevant to the decision,
such that the decision falls outside the range of reasonable
alternatives" (quotation and citation omitted).
Id. To the extent that the bail judge's decision
is premised on legal rulings, we consider those legal issues
independently and without deference. See Sharpe, 432
Mass. at 603.
defendant urges us to go further, asking us to conduct a de
novo review of the Commonwealth's evidence against him
and, in particular, of the bail judge's statement that
the Commonwealth had a "strong case" against the
defendant. We decline to do so. The defendant argues that the
bail judge's characterization of the Commonwealth's
case as "strong" should be reviewed de novo because
it is analogous to a factual finding made by a motion judge
based on documentary evidence when a defendant has moved to
suppress evidence, citing Commonwealth v. Melo, 472
Mass. 278, 293 (2015) ("We review de novo any findings
of the motion judge that were based entirely on the
documentary evidence . . ."). But the bail judge's
statement was not a factual finding, so much as the
judge's general assessment of the weight of the evidence
made as part of his over-all discretionary bail decision.
While we must consider whether the bail judge's
assessment of the evidence involved a clear error of
judgment, it is not appropriate for us to substitute our own
assessment for his in reviewing his exercise of discretion.
Legal standards for bail decisions where the defendant
has been charged with murder in the first degree. a.
to grant bail to a defendant who has been charged with murder
in the first degree is a matter for the bail judge's
discretion. In Commonwealth v. Baker, 343 Mass. 162
(1961), this court reviewed the history of the common law and
statutes pertaining to bail in such cases. We noted that
"[f]rom early colonial times bail appears to have been
allowable in the court's discretion in capital cases . .
. and as a matter of right in all other cases."
Id. at 165. We also determined that this basic
common-law framework had not been altered by subsequent
statutory enactments. Id. at 166-168. In particular,
we noted that G. L. c. 276, §§ 42 and 57, which
were the principal bail statutes in force when Baker
was decided, did not define nonbailable offenses.
Id. at 166. We therefore concluded that "one
charged with the capital offence of murder in the first
degree may be admitted to bail, and that bail in such a case
is not a matter of right but is discretionary with the judge,
who is to give due weight to the nature and circumstances of
the case." Id. at 168. Thus, we held that if
the bail judge had denied bail based on the mistaken view
that murder in the first degree was a nonbailable offense,
that decision would be tainted by an error of law, but if the
judge exercised his discretion, there was no error.
there have been significant developments in the law of bail
and pretrial release during the one-half century since
Baker was decided, the court's conclusion --
that whether to grant bail to a defendant charged with murder
in the first degree is a matter for the judge's
discretion -- remains sound. Notably, in 1971 the Legislature
rewrote G. L. c. 276, § 58, to establish a presumption
of release on personal recognizance pending trial. See St.
1971, c. 473; Commonwealth v. Ray, 435 Mass. 249,
254 (2001); Commesso v. Commonwealth, 369 Mass. 368,
369, 371 (1975); Matter of Troy, 364 Mass. 15, 35
n.10 (1973). Importantly, however, § 58 specifically
excludes from its coverage persons charged with "an
offense punishable by death," and we have interpreted
that provision to mean that § 58 does not apply to
persons charged with murder in the first degree,
notwithstanding our holding that the death penalty statute
then in effect was unconstitutional. See Commonwealth v.
Flaherty, 384 Mass. 802, 802-803 (1981), citing
District Attorney for the Suffolk Dist. v.
Watson, 381 Mass. 648 (1980). Accordingly, "[s]ince
the statute does not apply, the question of bail for a person
charged with murder in the first degree is a matter of
discretion." Abrams v. Commonwealth, 391 Mass.
1019, 1019 (1984) (rejecting defendant's contention that
G. L. c. 276, § 58, restricts judicial discretion to
revise or revoke bail in murder in first degree case). See
Farley v. Commonwealth, 433 Mass. 1004, 1004 (2000);
Magraw v. Commonwealth, 429 Mass. 1004, 1004 (1999)
Factors to be considered in exercising discretion.
exercising discretion to decide whether a person charged with
murder in the first degree should be admitted to bail, a
judge should be guided by the same factors that apply to bail
decisions in other types of cases, although the relative
weight given to these factors will be affected by the nature
and gravity of the offense charged. These factors include,
but are not limited to, the common-law historical factors for
bail, such as the nature and circumstances of the offense
charged and the accused's family ties, financial
resources, length of residence in the community, character
and mental condition, and record of convictions and
appearances at court proceedings or of any previous flight to
avoid prosecution or any failure to appear at any court
proceedings. Judges should also consider the additional
factors listed in G. L. c. 276, § 57, second par., where
the murder or related offenses charged involve domestic abuse
or violation of a restraining order, as defined
therein.Judges may also wish to consult the list of
factors set out in G. L. c. 276, § 58, first par.,
even though that statute does not apply to cases where the
defendant has been charged with murder in the first degree,
because those factors elaborate upon the common-law ...