April 2, 2019
ACTION commenced in the Supreme Judicial Court for the county
of Suffolk on January 8, 2019, The case was reported by Budd,
Core for the petitioner.
P. Sullivan, Assistant District Attorney (Christina P. Ronan,
Assistant District Attorney, also present) for the
H. Keehn & Rebecca Kiley, Committee for Public Counsel
Services, for Committee for Public Counsel Services, amicus
curiae, submitted a brief.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
N.E.3d 605] 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 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 [a] summons."
written memorandum of decision, a Superior Court judge
allowed the motion for pretrial detention, ...