COMMONWEALTH v. WARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A judge of the Superior Court denied the defendant's postconviction motion to compel the production of a pretrial bail hearing transcript. He appeals, claiming a violation of his due process rights. We affirm.

In November 2010, the defendant was arraigned in the Superior Court on a multitude of sex crimes involving children. The defendant was unable to post the initial bail amount. A subsequent bail hearing was held via videoconference; the defendant's bail was reduced, and he was released sometime thereafter.

After a different panel of this court affirmed the defendant's convictions,² he requested a copy of the transcript of the second bail hearing. A Superior Court judge ordered the Office of Transcription Services (OTS) to send the transcript to the clerk of court to be forwarded to the defendant. In April 2019, after the transcript was not delivered, the defendant moved to compel its production. OTS reported that it could not locate a transcript or a recording of the hearing; the motion to compel was denied as was the motion to reconsider. This appeal followed.

We review the denial of a motion to compel for an abuse of discretion. Commonwealth v. Camacho, 472 Mass. 587, 598 (2015). We ask “whether the judge made a ‘clear error of judgment’ in weighing the relevant factors ‘such that the decision falls outside the range of reasonable alternatives.’ ” Commonwealth v. German, 483 Mass. 553, 569 (2019), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The defendant cites two statutes in support of his claim that the clerk of court must produce the requested transcript. First, he relies upon G. L. c. 218, § 27A (h), for the proposition that, absent a stenographer, the proceedings must be recorded by electronic means. This section of the statute applies only to District Court jury trial sessions, not Superior Court bail hearings. Moreover, the statute permits, but does not require, that the court record trial testimony electronically if it is unable to provide a stenographer.

The defendant next cites G. L. c. 276, § 58, in support of his claim, but this argument fares no better. This section of the statute sets forth the factors a judge must consider when setting an amount of bail. There is nothing in this section regarding recording of bail hearings, or a defendant's request for a transcript.

When the statute's language is plain and unambiguous, we afford it “its ordinary meaning.” Commonwealth v. Pagan, 445 Mass. 315, 319 (2005), quoting Commonwealth v. Brown, 431 Mass. 772, 775 (2000). The defendant has failed to offer any authority that mandates the production of a bail hearing transcript where there is no recording of the proceedings. And, no statute, rule, or case requires it. There was no error, let alone a constitutional violation.³

Order denying motion to compel affirmed.

FOOTNOTES

2.   The panel affirmed the defendant's convictions in an unpublished memorandum and order pursuant to our rule 1:28. Commonwealth v. Ward, 93 Mass. App. Ct. 1123 (2018).

3.   We assume that the representation of OTS is correct that it could not locate a transcript or a recording of the hearing, and we have no basis to conclude otherwise. However, even though the defendant seeks a transcript of a bail hearing and not the trial, if he can explain in the trial court the relevance of the statements he claims were made at the bail hearing to his entitlement to a new trial, our decision does not preclude the defendant from seeking in the trial court to reconstruct the record; such a request may be made in the trial court before or contemporaneous with the filing of a motion for a new trial, and the Commonwealth shall cooperate in the process. See Commonwealth v. Pudder, 41 Mass. App. Ct. 930, 931 (1996). See also Mass. R. A. P. 8 (c), as appearing in 481 Mass. 1611 (2019) (addressing reconstruction of record on appeal). Of course, we do not suggest that an inability completely to reconstruct the record of the bail hearing will necessarily mean that the record is inadequate to decide any new trial motion the defendant might bring, or that such inability would automatically entitle him to a new trial.