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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 "fullblown 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

 

10 In 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,

 

14 As 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 

 

15 The 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 

 

16 Defense 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 exwife, 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 

 

17 In 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."

 

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

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.