Commonwealth v. Dossantos

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SJC-11790

COMMONWEALTH vs. DOUGLAS DOSSANTOS.

Middlesex. March 2, 2015. - July 1, 2015.

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

Domestic Violence Record Keeping System.

Complaint received and sworn to in the Framingham Division
of the District Court Department on August 25, 2014.

A question of law was reported to the Appeals Court by
Douglas W. Stoddart, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Alexandra H. Deal for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney
(Laura G. Montes, Assistant District Attorney, with her) for the
Commonwealth.

BOTSFORD, J. In this case, we consider a report of a

District Court judge pursuant to Mass. R. Crim. P. 34, as
 2

amended, 442 Mass. 1501 (2004),1 concerning G. L. c. 276, § 56A

(§ 56A), a statute enacted in 2014 as one component of a

comprehensive package of legislation entitled, "An Act relative

to domestic violence." See St. 2014, c. 260, § 30. Section

§ 56A requires that in every case in which a person is arrested

and charged with a crime against the person or property, if the

Commonwealth alleges that domestic abuse occurred "immediately

prior to or in conjunction with" the charged crime, the

Commonwealth is to file a written statement that it does so

allege, the judge is to make a written ruling that the

Commonwealth does so allege, and the Commonwealth's written

statement is then to be entered into the Statewide domestic

violence record keeping system (DVRS). For the reasons we

discuss hereafter, we interpret § 56A to mean that before a

judge makes a "written ruling that abuse is alleged in

connection with the charged offense," the judge must inquire

into and be satisfied that there is an adequate factual basis

1
Rule 34 of the Massachusetts Rules of Criminal Procedure,
as amended, 442 Mass. 1501 (2004), provides:

"If, prior to trial, or, with the consent of the
defendant, after conviction of the defendant, a question of
law arises which the trial judge determines is so important
or doubtful as to require the decision of the Appeals
Court, the judge may report the case so far as necessary to
present the question of law arising therein. If the case
is reported prior to trial, the case shall be continued for
trial to await the decision of the Appeals Court."
 3

for the allegations of abuse made by the Commonwealth. In light

of our construction of the statute's terms, we do not reach the

constitutional claims raised by the judge's report and the

defendant.

Background. Framingham police officers arrested the

defendant, Douglas Dossantos, on August 24, 2014. According to

the police report, the defendant, who was trying to retrieve

personal belongings from his wife's house, attempted to enter

the house by pushing an air conditioning unit in through a

window. When the defendant's wife saw the defendant at the

window, she let him inside the house; as the defendant entered,

he pushed her aside, causing her to lose her balance but causing

no physical injury. A criminal complaint issued from the

Framingham Division of the District Court Department charging

the defendant with one count of assault and battery on a family

or household member in violation of G. L. c. 265, § 13M (a).2

Upon arraignment, a District Court judge released the

defendant on conditions.3 Prior to the defendant's release, the

2
General Laws c. 265, § 13M (a), provides: "Whoever
commits an assault or assault and battery on a family or
household member shall be punished" by a fine, imprisonment, or
both.
3
The conditions included requirements that the defendant
stay thirty yards away from his wife and her residence; he
communicate with his wife only by telephone, electronic mail, or
text messaging; and he undergo an evaluation by a health care
professional who was to file a written opinion with the court
 4

Commonwealth submitted a preliminary written statement pursuant

to § 56A, alleging that domestic abuse occurred immediately

prior to or in conjunction with the defendant's charged offense.

The judge declined to make a "written ruling that [domestic]

abuse is alleged in connection with the charged offense," see

§ 56A, but instead reported the case to the Appeals Court

pursuant to Mass. R. Crim. P. 34. In his report, the judge

opined that § 56A in part violated the defendant's

constitutional guarantee of due process, and suggested that the

statute may violate the separation of powers guarantee of art.

30 of the Massachusetts Declaration of Rights by interfering

with the judicial function. The case was entered in the Appeals

Court, and we granted the defendant's application for direct

appellate review.

Discussion. Section 56A, the text of which is quoted in

the margin,4 provides that before a judge releases, discharges,

regarding the defendant's "anger issues." One day after
imposing these conditions, the judge terminated the stay-away
and no-contact conditions of the defendant's release upon a
motion filed by the defendant's wife requesting termination of
these conditions so that she and the defendant could attend
marital counselling together.
4
General Laws c. 276, § 56A (§ 56A), provides:

"Before a judge of the superior court, district court
or Boston municipal court releases, discharges or admits to
bail any person arrested and charged with a crime against
the person or property of another, the judicial officer
shall inquire of the commonwealth as to whether abuse, as
 5

or admits to bail a person charged with any crime "against the

person or property of another," the judge must ask the

prosecutor whether the Commonwealth alleges that domestic abuse

"occurred immediately prior to or in conjunction with the crime

for which the person was arrested and charged." If the

defined in [G. L. c. 209A, § 1], is alleged to have
occurred immediately prior to or in conjunction with the
crime for which the person was arrested and charged. The
commonwealth shall file a preliminary written statement if
it is alleged that abuse has so occurred. The judicial
officer shall make a written ruling that abuse is alleged
in connection with the charged offense. Such preliminary
written statement shall be maintained within the statewide
domestic violence record keeping system [(DVRS)]. Such
preliminary written statement shall not be considered
criminal offender record information or public records and
shall not be open for public inspection. Such preliminary
written statement shall not be admissible in any
investigation or proceeding before a grand jury or court of
the commonwealth related to the crime for which the person
was brought before the court.

"If the defendant has been found not guilty by the
court or jury, or a no bill has been returned by the grand
jury or a finding of no probable cause has been made by the
court, the court shall remove the preliminary written
statement from the statewide [DVRS]; provided however, that
a dismissal shall not be eligible for removal from the
statewide [DVRS].

"Nothing in this section shall be construed as
modifying or limiting the presumption of innocence."

The word "abuse," appearing in the first paragraph of § 56A, is
defined in G. L. c. 209A, § 1, as "the occurrence of one or more
of the following acts between family or household members: (a)
attempting to cause or causing physical harm; (b) placing
another in fear of imminent serious physical harm; (c) causing
another to engage involuntarily in sexual relations by force,
threat or duress."
 6

Commonwealth alleges that domestic abuse occurred, the

prosecutor must file a "preliminary written statement," and the

judge must then "make a written ruling that abuse is alleged in

connection with the charged offense." Id. This preliminary

written statement is to be maintained in the DVRS, but it is not

considered a public record or criminal offender record

information, and is not available for public inspection. Id.

Section 56A also provides that if the crime that triggered

the Commonwealth's preliminary written statement of abuse is

ultimately disposed of by (1) a finding of not guilty, (2) a "no

bill" returned by the grand jury, or (3) a finding of no

probable cause by the court, the preliminary written statement

is to be removed from the DVRS. In the event of a dismissal of

the charge, however, the statement of abuse is not "eligible for

removal" from the DVRS. Id.

The DVRS is a registry of sorts, established by the

commissioner of probation pursuant to a statutory directive

originally enacted in 1992, and includes, among others, records

of the issuance of and any violations of criminal or civil

restraining or protective orders. St. 1992, c. 188, § 7.5 See

5
The relevant part of St. 1992, c. 188, § 7, provides as
follows:

"The commissioner of probation is hereby authorized
and directed to develop and implement a statewide [DVRS]
. . . . Said [DVRS] shall include a computerized record of
 7

Vaccaro v. Vaccaro, 425 Mass. 153, 155 (1997). Records in the

DVRS are available only to law enforcement and "judges

considering petitions or complaints" for restraining and

protective orders. See St. 1992, c. 188, § 7.

Consistent with the reporting judge's view, the defendant

contends that § 56A requires a judge automatically to affirm the

Commonwealth's allegation of domestic abuse and cause the

allegation to be recorded in the DVRS, and that this requirement

for judicial rubber stamping of the prosecutor's abuse

allegation violates his right to due process. Also consistent

with the reporting judge, the defendant further asserts that

this mandate of § 56A contravenes art. 30 by dictating that the

executive branch usurp the fact-finding authority of the

judiciary. We consider the defendant's arguments in turn.

1. Due process. The defendant, citing Mathews v.

Eldridge, 424 U.S. 319, 335 (1976), contends that § 56A offends

the issuance of or violations of any protective orders or
restraining orders issued pursuant to [G. L. c. 208, §§ 18,
34B; G. L. c. 209, § 32], civil restraining orders or
protective orders issued pursuant to [G. L. c. 209A] or any
violations of [G. L. c. 209A], or [G. L. c. 209C, §§ 15,
20]. Further, said computerized [DVRS] shall include the
information contained in the court activity record
information system maintained by the office of said
commissioner. The information contained in said [DVRS]
shall be made available to judges considering petitions or
complaints pursuant to [G. L. c. 208, §§ 18, 34B; G. L.
c. 209, § 32; G. L. c. 209A; and G. L. c. 209C, §§ 15, 20].
Further, the information contained in said [DVRS] shall be
made available to law enforcement agencies."
 8

due process because, as he construes the statute, a judge must

simply affirm the Commonwealth's allegation of domestic abuse in

writing without making any independent determination whether the

allegation has any validity, and must then cause the allegation

of abuse to be entered into the DVRS -- with the consequence, he

argues, that thereafter the defendant is labeled as an "abuser"

in the "eyes of the State," and his "rights in a host of arenas

in which the [DVRS] plays a role" are compromised. In the

defendant's view, due process requirements demand that the judge

play a meaningful role in assessing the substance of the

Commonwealth's allegation of domestic abuse. The thrust of the

Commonwealth's response is that a judge, in making a "ruling"

under § 56A that the Commonwealth alleges that domestic abuse

occurred in connection with the charged offense, is performing

purely a record-keeping function that does not implicate a

liberty interest or indeed any protectable interest of a

defendant, and therefore does not raise any due process

concerns.

We disagree with the Commonwealth that § 56A is simply a

record-keeping mechanism that has no consequences for the

defendant. As the defendant notes, there are various legal

proceedings in which a judge may rely on the Commonwealth's

written statement of abuse allegation, entered into the DVRS

pursuant to § 56A. See, e.g., G. L. c. 208, § 34D (judge
 9

considering request for restraining order or order for spouse to

vacate marital home must search DVRS to determine whether

defendant has history of domestic abuse).6 However, we need not

reach the claim that § 56A violates constitutional due process

guarantees because we interpret the statute's language to

require, in a case in which § 56A comes into play, that before

making the statutorily-mandated "ruling," the judge must conduct

a preliminary inquiry to determine that the Commonwealth's

allegation of domestic abuse has sufficient factual support to

warrant its entry into the DVRS for reference and use in later

proceedings. Cf. Commonwealth v. Disler, 451 Mass. 216, 228

(2008), quoting Staman v. Assessors of Chatham, 351 Mass. 479,

487 (1966) ("Doubts as to a statute's constitutionality 'should

be avoided if reasonable principles of interpretation permit

doing so'").

The judge's report focuses on the first four sentences of

§ 56A:

"[1] Before a judge . . . releases, discharges or admits to
bail any person arrested and charged with a crime against
the person or property of another, the judicial officer
shall inquire of the commonwealth as to whether abuse . . .
is alleged to have occurred immediately prior to or in
conjunction with the crime for which the person was
arrested and charged. [2] The commonwealth shall file a
preliminary written statement if it is alleged that abuse
has so occurred. [3] The judicial officer shall make a

6
See also G. L. c. 209, § 32; G. L. c. 209A, § 7; G. L.
c. 209C, § 15.
 10

written ruling that abuse is alleged in connection with the
charged offense. [4] Such preliminary written statement
shall be maintained within the [DVRS]."7

In seeking to interpret these sentences, we follow the familiar

rule that a statute is to be construed "so that effect is given

to all its provisions, so that no part will be inoperative or

superfluous" (quotations and citation omitted). Wolfe v.

Gormally, 440 Mass. 699, 704 (2004). If the third sentence of

the statute means only that, where the Commonwealth answers

"yes" to the judge's question whether abuse is alleged to have

occurred in connection with the charged offense and the

Commonwealth files a written statement so stating, the judge is

then required by the statute to "rule" that abuse is alleged to

have occurred, the third sentence, in terms of substance, would

indeed be superfluous. That is, the second sentence directs the

Commonwealth, where it alleges that abuse occurred in connection

with the charged crime, to file a "preliminary written

statement" so stating, and the fourth sentence directs that the

Commonwealth's "preliminary written statement" be maintained

within the DVRS. A written "ruling" by the judge acknowledging

7
Although the statute makes reference to a "judge" as well
as a "judicial officer," we interpret both terms to refer to a
judge, and in this opinion use only the term "judge" for ease of
reference. Furthermore, we read the phrase "in connection with
the charged offense" in the third sentence of § 56A as
legislative shorthand that functions as the equivalent of the
phrase, "immediately prior to or in conjunction with the crime
for which the person was arrested and charged" that appears in
the statute's first sentence.
 11

that, just as its preliminary written statement states, the

Commonwealth alleges abuse has occurred is essentially a formal

gesture that adds nothing material to the equation.

Moreover, interpreting § 56A as giving the judge simply the

ministerial role of confirming that the Commonwealth states it

has alleged abuse would strip the word or term "ruling" of its

typical significance. "Ruling," when used in connection with a

court or judge, generally connotes an act involving judgment,

and signifies more than the act of signing a preliminary written

statement prepared by a prosecutor. See Black's Law Dictionary

1533 (10th ed. 2014), quoting R.E. Keeton, Judging 67-68 (1990)

(defining "ruling" as "outcome of a court's decision either on

some point of law or on the case as a whole," and noting that

"in common usage 'legal ruling' [or simply 'ruling'] is a term

ordinarily used to signify the outcome of applying a legal test

when that outcome is one of relatively narrow impact"). Cf.,

e.g., Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517

(1984) (discussing standard of review of ruling on motion to

suppress, and implying judge's "ruling" involves exercise of

judgment).

To give meaning to the reference to the judge's "ruling" --

and more particularly the statute's phrase, "a written ruling

that abuse is alleged in connection with the charged offense" in

the third sentence of § 56A -- it is appropriate to interpret
 12

the sentence to incorporate a requirement that the judge be

satisfied that there is an adequate factual basis underlying the

Commonwealth's allegation of abuse before making the ruling.

Determining whether there is an adequate factual basis does not

mean that the judge must determine that there is probable cause

to believe that abuse occurred in connection with the charged

offense. As is made plain by the second paragraph of § 56A,

which requires the removal of an abuse allegation that is being

maintained on the DVRS if "a finding of no probable cause has

been made by the court," the Legislature clearly knew how to

reference a probable cause standard, and chose not to do so in

defining the judge's role in connection with the initial

placement of an abuse allegation statement in the DVRS. See,

e.g., Nguyen v. William Joiner Ctr. for the Study of War &

Social Consequences, 450 Mass. 291, 301 (2007) ("Because the

Legislature knew how to reference employees specifically when it

wanted to, its use of the words 'any person' in [the provision

of the statute at issue] cannot reasonably be construed to

include prospective employees").

Rather, the judge must undertake an inquiry sufficient to

determine that the alleged facts supporting the Commonwealth's

proffered allegation of abuse, if deemed credible by a fact

finder, would be sufficient to warrant or justify a finding of

"abuse," as the term is defined in G. L. c. 209A, § 1. More
 13

specifically, the judge must review information concerning the

abuse allegation proffered by the Commonwealth -- which is

likely to consist of a police report, but might include other

material -- and then decide whether this information, assuming

its credibility, would support a finding of "abuse."8 To

accomplish this task, the judge is not required to take evidence

or hold a separate hearing; presumably, the inquiry we describe

here will be undertaken at the time of arraignment in

conjunction with the judge's bail determination, as § 56A

clearly appears to contemplate. See § 56A, first par. In

addition, although § 56A requires the judge's "ruling that abuse

is alleged in connection with the charged offense" to be in

writing, the judge's determination of an adequate factual basis

for the Commonwealth's allegation of abuse need not take the

form of separate written findings. It must be clear from the

record, however, that the judge did determine that a sufficient

factual basis supporting the Commonwealth's allegation of abuse

exists.

2. Separation of powers. Our conclusion that § 56A

requires a judge to make an independent determination that the

8
It bears emphasis that the judge's task under § 56A is not
to make a finding whether the allegation of abuse proffered by
the Commonwealth is credible, but to assume the credibility of
supporting alleged facts; the sole issue is the sufficiency of
the presumed-credible facts to show abuse as statutorily
defined.
 14

case record provides an adequate factual basis to support an

allegation of domestic abuse obviates the need to consider the

argument -- made explicitly by the defendant and implicitly in

the judge's report -- that § 56A violates art. 30 by permitting

the executive branch to usurp and thereby interfere with the

judiciary's "core" function of fact finding.

3. Conclusion. We respond to the judge's report as

follows: G. L. c. 276, § 56A, first par., requires that before

making "a written ruling that abuse is alleged in connection

with the charged offense," a judge must first inquire into and

be satisfied that there is an adequate factual basis for the

Commonwealth's allegation of abuse. In view of this response,

we decline to consider the constitutional questions contained in

the report.

So ordered.