Heard: April 2, 2019.
action commenced in the Supreme Judicial Court for the county
of Suffolk on January 8, 2019.
case was reported by Budd, J.
S. Core for the petitioner.
Catherine P. Sullivan, Assistant District Attorney (Christina
P. Ronan, Assistant District Attorney, also present) for the
Benjamin H. Keehn & Rebecca Kiley, Committee for Public
Counsel Services, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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 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.
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 and
drug use. The defendant was released under these conditions
in January 2018.
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
written memorandum of decision, a Superior Court judge
allowed the motion for pretrial detention, without
prejudice. 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." See G. L. c. 276, §
58A (3). Approximately ten months later, the defendant filed
an emergency ...