Vasquez v. Commonwealth

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SJC-12556

PEDRO VASQUEZ vs. COMMONWEALTH.

Suffolk. November 5, 2018. - March 28, 2019.

Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.

Bail.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on May 25, 2018.

The case was considered by Gaziano, J.

Merritt Schnipper for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.

LOWY, J. In this 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
 2

court proceedings. The defendant,1 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

1 Although Pedro Vasquez commenced this action by filing a
petition in the county court, for convenience, we refer to him
as "the defendant."
 3

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 hearing2

and the opportunity to present argument concerning the relevant

bail factors.

Pretrial 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

2 There is no requirement that there be an evidentiary
hearing.
 4

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.

Applying 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.

Background. We 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.

Detectives 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
 5

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 away.

Police 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
 6

they could not make a positive identification because the man's

face was not visible.

Based 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 2018.3

3 In addition to these bail proceedings, the defendant was
heard on various motions to suppress evidence. After
evidentiary hearings in April and June 2017, a judge issued
orders denying the defendant's motions to suppress certain
identifications (including the voice and video identifications
described above) and evidence obtained from a search of the
defendant's cell phone, but allowing his motion to suppress his
postarrest statement to the police. A different judge denied
the defendant's motion to suppress cell site location
information evidence from his cell phone service provider after
a nonevidentiary hearing in December 2017. Single justices of
the county court allowed the defendant's and the Commonwealth's
 7

Discussion. 1. Standard of review. As we 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.

As a 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

respective requests for leave to appeal from these orders and,
following our grant of direct appellate review, their appeals
are now pending before us in a separate docket.
 8

discretion,4 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).

Insofar 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,

4 We have previously indicated that the single justice of
the county court has the discretionary power to make de novo
bail decisions in certain circumstances. See Commesso v.
Commonwealth, 369 Mass. 368, 373 (1975) (under G. L. c. 276,
§ 58, "the single justice has the power to consider the matter
anew, taking into account facts newly presented, and to exercise
his own judgment and discretion without remanding the matter for
reconsideration by the Superior Court"). We need not determine
the scope of this discretionary power or whether it would apply
in the circumstances of this case, given that the single justice
did not exercise this discretion.
 9

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.

The 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
 10

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.

2. Legal standards for bail decisions where the defendant

has been charged with murder in the first degree. a. Judicial

discretion. Whether 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
 11

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. Id.

Although 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
 12

(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).

b. Factors to be considered in exercising discretion. In

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.5 Judges should also consider the

additional factors listed in G. L. c. 276, § 57, second par.,

5 For a discussion of these factors, see Brangan v.
Commonwealth, 477 Mass. 691, 698 (2017), quoting Commonwealth v.
Torres, 441 Mass. 499, 504 (2004), and citing Querubin v.
Commonwealth, 440 Mass. 108, 115 n.6, 120 (2003).
 13

where the murder or related offenses charged involve domestic

abuse or violation of a restraining order, as defined therein.6

Judges may also wish to consult the list of factors set out in

6 General Laws c. 276, § 57, second par., as amended through
St. 2018, c. 69, § 167, states in part:

"Any person authorized to take bail for such violation may
impose conditions on a person's release in order to ensure
the appearance of the person before the court and the
safety of the alleged victim, any other individual or the
community; provided, however, that the person authorized to
take bail shall, prior to admitting the person to bail,
modifying an existing order of bail or imposing such
conditions, have immediate access to all pending and prior
criminal offender record information, board of probation
records and police and incident reports related to the
person detained, upon oral, telephonic, facsimile or
electronic mail request, to the extent practicable, and
shall take into consideration the following: the nature
and circumstances of the offense charged, the potential
penalty the person faces, the person's family ties, the
person's financial resources and financial ability to give
bail, employment record and history of mental illness, the
person's reputation, the risk that the person will obstruct
or attempt to obstruct justice or threaten, injure or
intimidate or attempt to threaten, injure or intimidate a
prospective witness or juror, the person's record of
convictions, if any, any illegal drug distribution or
present drug dependency, whether the person is on bail
pending adjudication of a prior charge, whether the acts
alleged involve abuse, as defined in [G. L. c. 209A, § 1],
a violation of a temporary or permanent order issued
pursuant to [G. L. c. 208, § 18 or 34B; G. L. c. 209, § 32;
G. L. c. 209A, § 3, 4, or 5; or G. L. c. 209C, § 15 or 20],
whether the person has any history of issuance of such
orders pursuant to the aforesaid sections, whether the
person is on probation, parole or other release pending
completion of sentence for any conviction and whether the
person is on release pending sentence or appeal for any
conviction."
 14

G. L. c. 276, § 58, first par.,7 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 factors listed above. See Brangan, 477 Mass. at

697-698 & n.13 (observing that Superior Court judges sometimes

rely on G. L. c. 276, § 58, in their bail orders, even though

statute does not apply to bail proceedings in Superior Court,

because common-law considerations for bail are among same as

those contained in § 58).

Certain aspects of the nature and circumstances of the

offense charged merit special attention in a case involving

7 General Laws c. 276, § 58, first par. as amended through
St. 2018, c. 69, § 171, states in part: "In his determination
under this section as to whether release will reasonably assure
the appearance of the person before the court, said justice
. . . shall, on the basis of any information which he can
reasonably obtain, take into account the nature and
circumstances of the offense charged, the potential penalty the
person faces, the person's family ties, financial resources and
financial ability to give bail, employment record and history of
mental illness, his reputation and the length of residence in
the community, his record of convictions, if any, any illegal
drug distribution or present drug dependency, any flight to
avoid prosecution or fraudulent use of an alias or false
identification, any failure to appear at any court proceeding to
answer to an offense, whether the person is on bail pending
adjudication of a prior charge, whether the acts alleged involve
abuse as defined in [G. L. c. 209A, § 1], or violation of a
temporary or permanent order issued pursuant to [G. L. c. 208,
§ 18 or 34B; G. L. c. 209, § 32; G. L. c. 209A, § 3, 4, or 5; or
G. L. c. 209C, § 15 or 20], whether the person has any history
of orders issued against him pursuant to the aforesaid sections,
whether he is on probation, parole, or other release pending
completion of sentence for any conviction, and whether he is on
release pending sentence or appeal for any conviction."
 15

murder in the first degree. The potential penalty that the

defendant faces, a factor listed in both § 57 and § 58, and the

related "possibility of a defendant's flight to avoid

punishment," Querubin v. Commonwealth, 440 Mass. 108, 116

(2003), are significant considerations. The risk of flight is

at its greatest where the defendant stands accused of murder in

the first degree because of the magnitude of the punishment

faced by the defendant upon conviction -- a mandatory sentence

of imprisonment for life without the possibility of parole. See

G. L. c. 265, §§ 1, 2; G. L. c. 127, § 133A.8 This is "a

uniquely severe penalty" that puts the defendant's "life . . .

at stake . . . in a way it is not where a lesser crime is

charged." Commonwealth v. Francis, 450 Mass. 132, 135-136

(2007). Consequently, whenever a defendant is charged with

murder in the first degree, there is a significant, inherent

risk that the defendant will flee, and in light of that risk,

"[i]t is presumed that a defendant charged with murder in the

first degree is not entitled to bail." Commonwealth v. Dame,

473 Mass. 524, 539, cert. denied, 137 S. Ct. 132 (2016).

8 Persons serving a life sentence for murder in the first
degree who had attained the age of eighteen at the time of the
murder are not eligible for parole. Persons under the age of
eighteen at the time of the offense must be, after serving some
mandatory period of incarceration, eligible for parole. See
G. L. c. 265, §§ 1, 2; G. L. c. 127, § 133A.
 16

While this inherent risk may prove significant in the

judge's denial of bail in a particular capital case, a generic

risk of flight should not be treated as automatically

dispositive. See Baker, 343 Mass. at 168. Nor should bail be

denied solely on the presumption that a defendant charged with

murder in the first degree is not entitled to bail, without

considering the particulars of the case, as this would deprive a

defendant of an individualized bail decision based upon his or

her specific circumstances. See id., quoting 4 W. Blackstone,

Commentaries *299 ("there are cases, though they rarely happen,

in which it would be hard and unjust to confine a man in prison,

though accused even of the greatest offence"). Cf. Stack v.

Boyle, 342 U.S. 1, 5-6 (1951) ("traditional standards [for bail]

. . . are to be applied in each case to each defendant. . . .

To infer from the fact of indictment alone a need for bail in an

unusually high amount is an arbitrary act").

In weighing the risk that the defendant will flee to avoid

a lifetime sentence to prison without parole, the judge should

also consider the strength or weakness of the Commonwealth's

evidence against the defendant. See former Fed. R. Crim. P.

46(a)(1), cited in Baker, 343 Mass. at 168 ("A person arrested

for an offense punishable by death may be admitted to bail by

any court or judge authorized by law to do so in the exercise of

discretion, giving due weight to the evidence and to the nature
 17

and circumstances of the offense"). This consideration is

important for two reasons. First, the stronger the evidence,

the greater the likelihood that the defendant will be convicted,

and hence the greater the defendant's incentive to flee. See

Magraw, 429 Mass. at 1004 (observing that defendant had

increased incentive to flee in light of Commonwealth's strong

case). Second, the stronger the evidence, the less likely it is

that an innocent defendant will be unfairly detained while

awaiting trial.

In sum, in deciding whether to admit a defendant charged

with murder in the first degree to bail, the judge's exercise of

discretion should not rest solely on a presumption against bail;

it 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,

taking into consideration as well the defendant's family ties,

financial resources, length of residence in the community,

character and mental condition, 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.
 18

c. Constitutional considerations in the exercise of

discretion. The judge's exercise of discretion is also

constrained by the due process guarantees of the Fourteenth

Amendment to the United States Constitution and arts. 1, 10, and

12 of the Massachusetts Declaration of Rights, which establish

the fundamental principle that "in our society liberty is the

norm, and detention prior to trial or without trial is the

carefully limited exception." Brangan, 477 Mass. at 704,

quoting Foucha v. Louisiana, 504 U.S. 71, 83 (1992). Although

"a defendant does not have a constitutional right to be released

on bail prior to trial,"9 pretrial detention must satisfy due

process requirements because it curtails an individual's

fundamental right to liberty and freedom from physical restraint

before he or she has been convicted of any crime. Brangan,

supra at 705, quoting Querubin, 440 Mass. at 112; Brangan, supra

at 702-703.

9 The United States Supreme Court and this court have
rejected the argument that the prohibitions against "excessive
bail" in the Eighth Amendment to the United States Constitution
and art. 26 of the Massachusetts Declaration of Rights extend so
far as to bar pretrial detention in all cases. See United
States v. Salerno, 481 U.S. 739, 754 (1987), quoting Carlson v.
Landon, 342 U.S. 524, 545 (1952) ("The bail clause was lifted
with slight changes from the English Bill of Rights Act. In
England that clause has never been thought to accord a right to
bail in all cases, but merely to provide that bail shall not be
excessive in those cases where it is proper to grant bail. When
this clause was carried over into our Bill of Rights, nothing
was said that indicated any different concept"); Mendonza v.
Commonwealth, 423 Mass. 771, 782 n.4 (1996).
 19

There are two prongs to the due process analysis --

substantive due process and procedural due process. "Under the

test of substantive due process, '[w]here a right deemed to be

fundamental is involved, courts must examine carefully the

importance of the governmental interests advanced and the extent

to which they are served by the challenged [procedure], and

typically will uphold only those [procedures] that are narrowly

tailored to further a legitimate and compelling governmental

interest'" (quotations and citations omitted). Brangan, 477

Mass. at 703, quoting Querubin, 440 Mass. at 112. Procedural

due process tests whether governmental action depriving a person

of life, liberty, or property has been implemented in a fair

manner. Brangan, supra. Our previous decisions applying these

due process requirements in cases where defendants have been

subjected to pretrial detention offer guidance here.

In Querubin, 440 Mass. at 113-116, we held that pretrial

detention without bail of a defendant charged with drug

trafficking met due process requirements where the court

reasonably concluded after a hearing that pretrial detention was

necessary to assure the defendant's appearance at future

proceedings. Addressing the substantive due process prong of

the analysis, we held that the Commonwealth and its courts have

a legitimate and compelling interest in assuring a defendant's

presence at trial, and that the procedure for determining
 20

whether to admit a defendant to bail under G. L. c. 276, § 57,

applying the factors outlined above, was narrowly tailored to

serve that interest. See id. at 116. We further held that the

requirements of procedural due process were satisfied where the

defendant was afforded a hearing and an opportunity to attack

the strength of the Commonwealth's case and to present arguments

in favor of release, such as the defendant's good character and

ties to the community. See id. at 116-120. We noted that "the

rules of evidence do not apply" in such a hearing, and a "full-

blown evidentiary hearing that includes the right to be present

and cross-examine witnesses is not needed or required." Id. at

118. "The necessary determination can be adequately presented

and decided based on documents (e.g., police reports, witness

statements, letters from employers and others, and probation

records) and the representations of counsel," provided that the

evidence is "sufficiently reliable to avoid any significant risk

of an erroneous deprivation of liberty." Id. However, an

evidentiary hearing, "or some variation, may be held in the

discretion of the judge when the circumstances of a particular

case warrant" it. Id. Finally, we held that preponderance of

the evidence is the appropriate standard of proof under G. L.

c. 276, § 57, for determining whether a person presents a risk

of flight and, if a person does present such a risk, that there
 21

is no amount of bail or other conditions that will assure his or

her presence as required. Id. at 119-120.

We have also held, in Lavallee v. Justices in the Hampden

Superior Court, 442 Mass. 228 (2004), that the defendant has a

right to be represented by counsel at a bail hearing. "Because

a defendant's liberty, a fundamental right, is at stake at a

bail hearing, the principles of procedural due process in art.

12 of the Massachusetts Declaration of Rights are implicated.

They include the right to be heard, which necessarily includes

the right to be heard by counsel. . . . Neither a bail hearing

nor a preventive detention hearing may proceed unless and until

the defendant is represented by counsel." Id. at 234.

Where the requirements set out in Querubin and Lavallee are

followed, a defendant charged with murder in the first degree

may be properly held without bail to assure his or her future

appearance without violating due process. Due process demands

additional safeguards, however, where the Commonwealth asks for

pretrial detention of a defendant due to the danger that he or

she may pose to another person or the community. In Aime v.

Commonwealth, 414 Mass. 667 (1993), we held that the 1992

amendments to G. L. c. 276, § 58, which authorized judicial

officers to deny defendants admission to bail if their release

posed a danger to another person or the community, violated due

process requirements because the amendments gave judicial
 22

officers "unbridled discretion to determine whether an arrested

individual is dangerous," and lacked "procedures 'designed to

further the accuracy' of the judicial officer's determination."

Id. at 682-683, quoting United States v. Salerno, 481 U.S. 739,

751 (1987). Subsequently, in Mendonza v. Commonwealth, 423

Mass. 771 (1996), we upheld G. L. c. 276, § 58A, which was

enacted in 1994 to permit pretrial detention of defendants due

to their dangerousness, subject to numerous procedural

protections, including limiting the statute's application to

cases where certain serious crimes have been charged; giving the

defendant the right to an evidentiary hearing where the

defendant can testify, present witnesses, and cross-examine

witnesses; and authorizing pretrial detention only where a judge

finds by clear and convincing evidence that no conditions of

release will reasonably assure the safety of any other person or

the community. Id. at 773-775, 782-783. Considered together,

Aime and Mendonza compel the conclusion that, even where a

defendant has been charged with murder in the first degree, a

judge must still follow the procedures established in G. L.

c. 276, § 58A, before denying bail if the judge would have

released the defendant on bail but for the danger the defendant

poses to the community.10

10In the present case, the Commonwealth did not move to
have the defendant held under G. L. c. 276, § 58A, nor did the
 23

More recently, in Brangan, supra, we discussed the due

process and other constitutional requirements applicable to a

defendant who is detained because he or she cannot afford to

post the bail set by the court as a condition of his release.

We principally focused on the requirement that, in setting the

amount of bail, a judge must consider the defendant's financial

resources, although the judge is not required to set a bail

amount that the defendant can afford to pay. See Brangan, 477

Mass. at 697-698, 700-702. Thus, much of our discussion in

Brangan is inapplicable to the situation here, where the

defendant has been held without bail on a charge of murder in

the first degree.

But some of the due process conditions stated in Brangan

also apply in this case. We held that "[a] statement of

findings and reasons, either in writing or orally on the record,

is a minimum requirement [of due process] where a defendant

faces a loss of liberty."11 See id. at 708. That requirement is

Commonwealth argue that the defendant should be held without
bail because he posed a danger to the community.
11 We recognize that it is often not realistic for the judge

to reduce his or her findings to writing in the midst of
presiding over a criminal session. Oral findings in most
instances are not only permissible, but also to be expected.
 24

equally applicable where a judge orders a defendant to be held

without bail.12

We also held in Brangan that, when a bail order comes

before a judge for reconsideration, the judge should consider

the length of the defendant's pretrial detention and the

equities of the case. See Brangan, 477 Mass. at 709-710, citing

Querubin, 440 Mass. at 118, and Mendonza, 423 Mass. at 781, 790.

See also, e.g., United States v. El-Gabrowny, 35 F.3d 63, 65 (2d

Cir. 1994) ("Due process analysis of pretrial detention calls

for examination of the length of detention, the extent of the

prosecution's responsibility for delay of the trial, the gravity

of the charges, and the strength of evidence upon which

detention was based").13 Where the defendant has been charged

12 In Brangan, we also required that, where the defendant
cannot afford to pay the amount of bail set by the judge, likely
resulting in the defendant's long-term pretrial detention, the
statement of findings and reasons should explain why no less
restrictive condition would suffice to assure the defendant's
presence at future court proceedings. See Brangan, 477 Mass. at
707-709. The bail judge's statement of findings and reasons
need not specifically address this issue when the defendant has
been charged with murder in the first degree, given the inherent
risk that the defendant will flee in such cases, as discussed
supra.
13 The length of a defendant's pretrial detention is also

effectively limited by Mass. R. Crim. P. 36, as amended, 422
Mass. 1503 (1996), which requires trial within one year of
arraignment, subject to certain exclusions, see generally
Commonwealth v. Graham, 480 Mass. 516 (2018), and by the right
to a speedy trial under the Sixth Amendment to the United States
Constitution and art. 11 of the Massachusetts Declaration of
Rights, see generally Commonwealth v. Butler, 464 Mass. 706
(2013).
 25

with murder in the first degree, the nature of that calculus

will be affected by the gravity of the charge and the complexity

of the case. Especially in a murder case, "preparing . . . for

trial is a complex process, full of unexpected events and

challenges" that can lead to delay for legitimate reasons.

Commonwealth v. Graham, 480 Mass. 516, 532 (2018).

Nevertheless, where, as here, a defendant has been held without

bail for four years while awaiting trial, the length of the

detention and the extent of the prosecution's responsibility, if

any, for the delay, and the strength of evidence upon which

detention was based (especially if there have been changes in

the evidence since bail was previously denied, e.g., as a result

of a successful motion to suppress), should also be considered

on reconsideration.

3. Analysis of the challenged bail decisions. With this

legal framework in mind, we now review the bail proceedings in

the Superior Court and the ruling of the single justice in the

county court.14

Various Superior Court judges conducted five separate bail

proceedings in the defendant's case, in May 2015, July 2016,

14As discussed supra, the single justice did not exercise
his discretion in this case, and consequently our review of his
decision only involves our independent consideration of his
legal ruling that there was no abuse of discretion by the bail
judge.
 26

December 2016, December 2017, and May 2018. We focus our review

on the December 2017 and May 2018 proceedings, as these were the

most recent, and present the most extensive record.15

On December 14, 2017, the bail judge conducted a hearing on

the defendant's request for bail and his motion to suppress

information obtained from his cell phone service provider.

During the course of this hearing, defense counsel had an

opportunity to present arguments concerning the factors for bail

we have cited supra. Counsel noted that the defendant had no

prior record of convictions except for the violation of a

restraining order, to which he pleaded guilty; had no defaults

on his record; had not attempted to flee before his arrest; had

family in Springfield; and had lived in the United States for

his entire life. Counsel also challenged the strength of the

15The only information presented to us concerning the first
three bail proceedings is contained in the docket entries.
According to the docket, the defendant was "[h]eld without right
to bail/without prejudice," without any reason being stated,
after his arraignment on May 18, 2015. The docket entries for
July and December 2016 state that the defendant was "committed
without bail" because he was "charged with 1st degree murder."
We cannot tell from these entries whether the judges knew that
they had discretion to release the defendant on bail and
exercised that discretion, or whether they automatically denied
the defendant's bail request because of the offense charged,
without exercising their discretion. If the latter is what
occurred, then those decisions were tainted by an error of law.
See Commonwealth v. Baker, 343 Mass. 162, 168 (1961). Nor can
we tell what factors those judges may have considered in making
those decisions. But we need not resolve these issues, because
the defendant was given two more opportunities to argue for his
release on bail, in December 2017 and May 2018.
 27

Commonwealth's case against the defendant. He argued that the

visual and audio quality of the security videotape was so poor

that it was difficult to identify the voice or image of the

apparent perpetrator. Three members of the victim's family had

identified the voice in the videotape as that of the defendant,

but defense counsel suggested that the identifications were

based on a preconceived belief that the defendant was

responsible. Defense counsel represented that five other

persons who knew the defendant and heard the videotape did not

recognize the voice.

Defense counsel also stated that the defendant had not

attempted to flee and that his ex-wife, daughter, and neighbors

all placed him as being at or near his home at the time of the

crime. And he pointed out that the available forensic evidence

did not connect the defendant to the crime: a fingerprint found

on the rear window of the vehicle where the victim was shot was

not the defendant's fingerprint, and deoxyribonucleic acid (DNA)

evidence found under the victim's fingernails belonged to

another man with whom she had had a relationship. Defense

counsel asserted that the police nevertheless pursued the

defendant because they were influenced by members of the

victim's family who assumed that the defendant was the

perpetrator.
 28

In response, the prosecutor made the following arguments.

With regard to the nature and circumstances of the crime, he

described the murder as an "execution . . . a point-blank

gunshot to the back of [the victim's] head." As for the

strength of the Commonwealth's case, he represented that, in

addition to the victim's son and brother and her brother's

girlfriend, two other persons had identified the male voice in

the videotape as that of the defendant. He noted that twice in

the videotape, the victim called the perpetrator "Pedro" -- the

defendant's first name.16 The prosecutor also observed that the

fingerprint referenced by defense counsel was on the exterior of

the rear window vehicle and the security video recording did not

show the perpetrator touching there, so it was not relevant. He

acknowledged that the DNA evidence under the victim's

fingernails belonged to another man, not the defendant, but

noted that this other person had been in a sexual relationship

with the victim. The prosecutor also presented arguments on the

other factors for bail. He noted the defendant's incentive to

flee in light of the severe penalty for murder in the first

degree, and pointed out that the defendant had spent part of his

life in Puerto Rico and had not worked for three years before

16Defense counsel argued in rebuttal that his expert
linguist denied that the name "Pedro" was used in the videotape
and represented that one of the Commonwealth's witnesses had
heard other names, not "Pedro," on the audio recording.
 29

the crime. He represented that the defendant had been the

subject of two restraining orders issued under G. L. c. 209A,

one protecting the victim and one protecting the defendant's ex-

wife, each arising out of his threats to kill the women by

shooting them. He also stated that the defendant had been

convicted of violating the order protecting his ex-wife, and

that the defendant was on probation for that violation at the

time of the crime.17 And with regard to the delay in trying the

defendant, the prosecutor observed that it had been to the

defendant's "benefit as well as to his potential detriment."

In addition to these arguments, the bail judge also

considered an affidavit by a Springfield police officer in

support of an application for a search warrant to obtain

information from the defendant's cell phone service provider.

This affidavit corroborated the prosecutor's description of the

17In rebuttal, defense counsel challenged some of the
prosecutor's representations concerning the restraining orders
against the defendant. He stated that the defendant had
obtained a restraining order against the victim, that the victim
had in turn taken out a restraining order against the defendant,
and that both restraining orders had expired because neither the
defendant nor the victim appeared to testify. He stated that
two other restraining orders involving the defendant concerned
another woman and arose from a telephone call that the defendant
made to visit his child.
 30

security videotape and the witnesses' identifications based on

their review of that videotape.18

Following the December 14, 2017, hearing, the judge ordered

the defendant held without bail. Using a Superior Court form,

the judge checked boxes citing the following factors for his

decision:

 "The nature and circumstances of the offense charged."

 "The potential penalty the defendant faces."

 "The defendant's financial resources and employment
record."

 "The defendant's record."

 "The fact that the defendant's alleged acts involve 'abuse'
as defined in G. L. c. 209A, § 1."

 "The defendant's history of orders issued against him/her
under the aforementioned sections."

 "The defendant's status of being on probation, parole, or
other release pending completion of sentence for any
conviction."

The bail judge later issued a January 8, 2018, memorandum
18

and order denying the defendant's motion to suppress the cell
phone service provider information. In that memorandum and
order, he incorporated by reference the factual findings and
rulings in a September 25, 2017, memorandum and order issued by
another judge after an evidentiary hearing on the defendant's
previous motions to suppress. Among other rulings, the
September 25, 2017, memorandum and order denied the defendant's
motion to suppress the voice and visual identifications of the
defendant that had been made by the victim's son, her brother,
and her brother's girlfriend.
 31

The judge also checked a statement reciting that he had

"considered alternative nonfinancial conditions and a lesser

bail amount, but . . . concluded that they would not be

sufficient to assure the defendant's appearance at future

proceedings for the following reasons," and then wrote: "The

court recognizes that a person charged [with] 1st degree murder

may be admitted to bail[;] however, after hearing, the court

exercises its discretion and orders the def[endant] held

[without] bail. See [Querubin, 440 Mass. at 112-113]."

Five months later, defense counsel filed a new motion for

the defendant's admission to bail, supported by a memorandum of

law and affidavits. Among other information, defense counsel's

affidavit averred that four alibi witnesses who listened to the

videotape did not identify the male voice as the defendant's

voice; that the defendant had lived in Massachusetts for twenty

years, that he had four daughters and a grandson living in

Massachusetts, and that his parents and two brothers lived in

Springfield.

The motion was heard on May 8, 2018, by the same judge who

had presided over the December 14, 2017, hearing. At the May

2018 hearing, defense counsel represented that the defendant's

trial would likely be delayed for another twelve to eighteen

months due to his appeals from the denial of his motions to

suppress evidence. Defense counsel and the prosecutor also
 32

repeated many of the same points that they had previously made

at the December 2017 bail hearing.

The following day, the judge issued an order holding the

defendant without bail. The judge cited the same factors as in

his December 2017 order, and again indicated that he had

considered alternative conditions but had concluded that they

would not be sufficient to assure the defendant's appearance at

future proceedings. He then stated the following rationale for

his decision:

"This is the [defendant's] 4th request to be admitted to
bail. The def[endant] argues that he faces at least an
additional year in pretrial detention as a result of
interlocutory appeals. After consideration of all
submissions, the [defendant's] request is denied. He is
charged w[ith] 1st degree murder. This judge heard one of
the [defendant's] motions to suppress. It is a strong case
for the Commonwealth. It was an execution style killing."

We agree with the single justice that the bail judge's

December 2017 and May 2018 orders did not constitute an abuse of

discretion or error of law. At both hearings, the bail judge

afforded defense counsel a full and fair opportunity to contest

the strength of the Commonwealth's case and argue why the

defendant should be admitted to bail. The bail judge's orders

make it clear that he was aware that he had discretion to decide

whether to admit the defendant to bail, and that he was

exercising that discretion to deny the defendant's bail requests

based on the arguments and submissions presented to him. The
 33

judge's orders also indicate that he appropriately considered

the relevant bail factors in making that decision, and the

factors he cited are all supported by the prosecutor's

presentations at the hearings. In particular, we note that the

bail judge's May 2018 order shows that he specifically weighed

the strength of the Commonwealth's case and the prospect of the

defendant's continuing detention for another year.

The defendant contends that the bail judge failed to

consider adequately the anticipated evidence described by his

counsel, including witnesses who would dispute the

identification of the defendant as the perpetrator appearing in

the videotape and testify that the defendant was elsewhere at

the time of the crime, the alleged bias of the victim's family

members when they made those identifications, and the lack of

forensic evidence tying the defendant to the crime. The

defendant also argues that the bail judge ignored his personal

attributes, including his twenty-year residency in Springfield

with numerous family members, the absence of any court defaults

in his record, and his lack of any "meaningful" prior

convictions. But these arguments weighing in the defendant's

favor were counterbalanced by other points presented by the

prosecution, including the nature of the offense charged; the

identifications of the defendant on the videotape by witnesses;

the prior restraining orders taken out against him, his
 34

violation of one of those orders, and the fact that he was on

probation at the time of the alleged offense; his lack of

employment; and his connections to Puerto Rico. Finally,

although the defendant's pretrial detention has been lengthy, he

does not argue that it has resulted from any undue delay by the

Commonwealth, and defense counsel acknowledged below that the

prospective additional delay in his trial has been caused by his

interlocutory appeals from the Superior Court's suppression

rulings.

On this record, we cannot say that the bail judge made a

clear error of judgment in weighing the factors relevant to his

decision, such that the decision falls outside the range of

reasonable alternatives, and accordingly, we conclude that the

bail judge did not abuse his discretion. See L.L., 470 Mass. at

185 n.27.

Conclusion. The judgment of the county court is affirmed.

So ordered.