COMMONWEALTH v. BROWN (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Daryl C. Brown, appeals from an order of a single justice denying his petition for relief pursuant to G. L. c. 211, § 3 from the allowance of the Commonwealth's motion for pretrial detention pursuant to G. L. c. 276, § 58A.² In this context, our “review of the judgment of the single justice is ‘limited to correcting errors of law and abuse of discretion.’ ” Barbosa v. Commonwealth, 475 Mass. 1009, 1009 (2016), quoting Leo v. Commonwealth, 442 Mass. 1025, 1026 (2004). We affirm.

The defendant was charged with various crimes including armed assault with intent to murder and firearm charges stemming from a shooting following an altercation at the Encore Casino in Everett.³ At his arraignment in the Superior Court, the Commonwealth moved for a dangerousness hearing pursuant to G. L. c. 276, § 58A.⁴ A hearing was held on February 4, 2021, and on March 8, 2021, the judge entered her decision. She found that the defendant was dangerous and committed him without bail, concluding that there were no less restrictive means to ensure the safety of the community. The defendant filed an emergency petition for relief pursuant to G. L. c. 211, § 3. In a lengthy and thoughtful decision, a single justice of this court denied the petition. This appeal followed.

The single justice set forth the factual basis of the indictments and rejected the defendant's contention that the Commonwealth failed to show by clear and convincing evidence that he is dangerous and that there are no less restrictive conditions that could ensure the safety of the community. In addition, the single justice considered the defendant's prior convictions, record of probation violations, and history of defaults. She noted the defendant's diagnoses of deep vein thrombosis and pulmonary embolism, the availability of the COVID-19 vaccine at the Middlesex County house of correction, and the special master's weekly report showing that there were no active cases at the jail for the five weeks prior to the entry of the single justice's order. See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 449 (2020), S.C., 484 Mass. 1029 (2020). She also considered the letters submitted on behalf of the defendant attesting to his character, and his role in his family and community. On balance, she concluded that these letters did not “compel a different result.”

Having reviewed the single justice's memorandum and order, and the parties’ respective arguments (as set forth in their filings before the single justice), we discern no abuse of discretion or other clear error of law in the single justice's ruling. We therefore affirm her order.

So ordered.

affirmed

FOOTNOTES

2.   The petition was originally filed with the Supreme Judicial Court for Suffolk County. A single justice of the Supreme Judicial Court transferred the matter to this court in accordance with that court's Standing Order Regarding Transfer of Certain Single Justice Matters During the COVID-19 Pandemic (eff. June 8, 2020). See Rule 1.0 of the Rules of the Appeals Court, as appearing in 97 Mass. App. Ct. 1001 (2020) (formerly known as rule 2:01, as amended, 3 Mass. App. Ct. 805 [1975]).

3.   The defendant was charged with armed assault with intent to murder, assault and battery by means of a dangerous weapon resulting in serious bodily injury, assault and battery with a firearm, carrying a firearm without a license, and carrying a loaded firearm without a license.

4.   Following his arraignment in the District Court, the defendant was detained pursuant to G. L. c. 276, § 58A (3). The Superior Court judge may consider this hearing and give it any weight that she deems appropriate. See Commonwealth v. Murchison, 428 Mass. 303, 307-308 (1998).