Announcer: This is SJC1-13252
in the matter of Roland F. Escobar, Jr.
-: Okay. Attorney Lee.
Lee: Good morning.
-: Morning.
-: May I please the court,
Mary Lee, Assistant District Attorney
for the Bristol District for the Commonwealth.
The issue before the court today is
it's a Commonwealth appeal
and it's whether manslaughter and assault and battery
with a dangerous weapon causing serious bodily injury
is within the umbrella of the pretrial detention statute
in Section 58A.
And as we've seen the language it's been
it would be within the Force clause
from the Commonwealth position.
And as we've seen over the years the Force clause,
which is identical to the definition of,
a violent crime in the armed career criminal statute,
both of those statutes have had quite a bit of analysis
regarding that language. And so the Commonwealth has,
is stating in this appeal that the superior court Judge,
when the case came up for a bail appeal,
made a clear error of law by finding that
both of these crimes
did not fit as predicate of offenses
under the dangerousness statutes Force clause.
-: Ms. Lee, can I ask you,
does any court use a modified categorical
analysis as opposed to
an ACC situation for pretrial detention?
-: So with respect to of the Force clause,
this court has not done that,
but with respect to the Abuse clause in Section 58A,
this court uses the modified categorical approach.
-: I thought the reason we did that was
because there's no abuse language
or no abuse crimes, right?
Per se. Lee: Right.
-: We kinda stuck with that.
But the fourth clause is, Lee: Right. Sorry.
although Federal law
and from what I've seen is everybody uses,
I've never seen modified categorical used
in a detention statute, unless I'm wrong on that.
Am I-- -: So,
the only case I'm relying on is on,
using a co non categorical approach on the Abuse clause.
And my position is if this court can apply a non categorical
or modified categorical abuse, I'm sorry,
modified categorical approach within Section 58A
in any part of it,
then of course you should be able to use it
in this section as well.
In the same way the defendant is applying Dayton
to use rule of lenity.
The rule of lenity has been applied,
in Section 58A's clause on OUI three,
but not on the forced statute. So,
so I understand the court may be viewing my argument as a
kind of in, for a penny in, for a pound.
But I think that's kind of a good description because
our first line of action here is that
this fits within the categorical analysis,
that the element of cause of death or causing serious
bodily injury fits within the Force clause.
And our second line of argument is that
if this court is applying Ashford, then you should,
and you're gonna import intent into the Force clause
in Section 58A,
then you have to
use the modified categorical approach because, under Ashford
assault and battery with a dangerous weapon
can fit within that exact same language
for proof beyond a reasonable doubt,
but it wouldn't be able to fit within Section 58A
same language for pretrial detention and that--
-: On the force argument, I get what you're saying
with regarding voluntary manslaughter.
I'm having trouble seeing your point on involuntary.
And I think the point is made in the rare cases where
a DA's Office charges voluntary manslaughter,
you could indict for voluntary manslaughter, correct?
-: Yes.
-: But involuntary, which involves
like Will Lewinsky on that in those types of cases,
how do we get forced in for example?
-: So I, and I wanted to be very upfront with the court.
I acknowledge Lewinsky, Twitch and Carter
in the involuntary manslaughter cases.
And so our position is that you cannot cause someone's death
without some infliction of physical force against them.
People don't just die. And--
-: But if the homeless folks who were in,
in the worst fire unfortunately, and they walk away,
they don't call,
how do they involve force to those firefighters?
-: And so it's an indirect use of force
in those cases. And so,
and that's why,
if you're applying a modified categorical approach,
you should be able to look at the facts.
But, I understand it's, that is a harder argument,
which I acknowledge in my brief,
in terms of the indirect use of force
with a manslaughter case but
they are still causing the death.
You have to show causation in order to get the manslaughter.
-: I have no doubt they cause the death
that's part of, that's an element of proof.
I'm just having trouble on the direct force.
-: Right. It's indirect. And--
-: The use of force, it's the, I'm sorry.
It's the use of force is the language
I think I might have stolen one question,
(both laughing) but it's use of force, right?
-: Yes. Yes. It's use of physical force
against the person of another and.
-: Right. So how so, how did Mr. Lewinsky
cause use force against the people,
when he shut the doors?
-: So by ordering that the door be blocked.
So when the fire incurred,
he has done an intentional act
and that intentional act,
has as a natural improbable consequence
caused force to be used against the people who died
in that fire at the China groove. So,
and I understand that this is a,
you know, a separate course of events,
but I would point to this court's decision that murder,
which does not person is not entitled to bail under murder,
but this court has found in the Vasquez case
that murder falls within the
58A and murder can be done in same manner
with not even being present,
setting a course of action in place and creating the natural
and probable consequences.
And so I would suggest that the lesser included
offense of manslaughter should fall within that as well.
I would then move. So,
the Commonwealth's primary position is
that both of these crimes, manslaughter
and assault and battery with a dangerous weapon
causing serious bodily injury,
have the proof of cause of death or serious bodily injury
and that is the element of the use of force.
So it's the use of physical force
against the person of another.
And what the defendant and what the
superior court Judge ruled
was that these were not predicate offenses
because she imported this court's Ashford case,
which was in 2020 regarding
the armed career criminal statute into 58A
and required the Commonwealth to show intentional conduct.
And intentional conduct, I admit
it's harder to show for manslaughter,
which requires an intentional act,
but does not require malice,
but I would suggest those
in the circumstance of ABDWSBI, it's very, I'm sorry,
assault and battery with a dangerous weapon
causing serious bodily injury.
If you look at the Ashford analysis,
it wouldn't make any sense to have
modified categorical approach that permits ABDW
on that same language to fall within the violent crime
on the same definition, and then say,
"no, it can never be."
And that is what the Judge is saying here.
ABDW can never be sufficient unless the Commonwealth
alleges intent and forego any reckless theory,
we don't even have to forego a reckless theory
for armed career criminal.
We can go under both theories and the Jury gets to decide
what is proven beyond a reasonable doubt. And so.
-: Isn't that the key that there's Jury involved in that,
I mean, here, you're detaining people pretrial
they're presumed innocent,
they're, you have none of those
procedural safeguards that you have,
for the Jury trial. And,
and the default is you don't detain people
and isn't that why we're not normally applying
the modified categorical approach?
-: I disagree. I think that
this is on a probable cause level,
the ABDW fits more cleanly into the
pretrial detention statute,
because it has a use of force,
which this court has found
can be proven through intentional acts.
And so the Commonwealth should not be foreclosed
by simply because it says we can also prove it by reckless.
And so we should be able to use
a modified categorical approach.
We have of the elements.
We have a theory of intent,
and we should fit within categorical approach.
And if we don't Ashford,
if you're gonna apply Ashford
and it's requirement of intent?
Then you should let us show our facts.
We never got a hearing on the facts because the Judge
ruled as a matter of law ABDW
causing serious some serious bodily injury
and therefore ABDW generally can't be within 58A at all.
And that can't be what the Legislature requires.
Like I said, you go and shoot somebody. I'm sorry.
-: You could have in that, when it went to superior court,
if it was an intentional act,
you could have sought an indictment
for intentional ABDW, serious bodily injury, correct?
-: So what you'd be requiring Commonwealth to do
is to actually get two indictments then
and move on the pretrial detention
for one and not the other
and that doesn't make any sense
either. -: I thought,
it was a district court.
I thought you asked for detention in superior court, right?
So when you knew it was an issue,
you could have indicted for intentional ABDW, right?
-: We could have done both,
but I don't think the law requires that.
And it doesn't make sense to have two charges against
the defendant for one case.
I mean, for one incident that that's not,
that's also not fair to the defendant to have,
two ABDW one for the pretrial detention
and one to make sure we can prove
our reckless theory at trial
if the Jury doesn't find intentional conduct.
and that's why the modified categorical approach makes,
so then the Judge can make
the probable cause finding on the crime
and then can look at the facts of the case
to determine and whether
we fall within the clear and convincing evidence
of dangerousness, which the Commonwealth maintains,
our evidence would show that, and we never even got there.
The statute is to protect the public it's to protect from
future irreparable harm and,
it's to doing so
in a way that protects the defendant's rights.
ABDW and manslaughter
are crimes of force against the person of another.
And if you import Ashford with its intentional element
into something that show at probable cause level
on the day of arraignment, in most cases,
I realized this case has been extended out,
but on the day of arraignment by probable cause
you have to let us use the modified categorical approach,
When there are two theories.
When we walked into court
on the day of arraignment in District court,
we should and have to say,
"oh, we're always going to just require intent,
"and we're going to give up recklessness forever."
Just to fall within the pretrial detention statute.
That is not what that cannot be,
what the Legislature intended when they talked about
the use of force against an individual.
I'm happy to answer any other questions.
-: Or, well, I have a question, but it's,
it's more conceptual
and not so much in the details of the statute.
And is that when you look at the statute, you know,
what the Legislature was trying to get to in terms of
pretrial detention to keep people's safer.
I'm not sure that they had
in their imagination a car accident,
or even if it's a reckless car accident.
It seemed, it's just doesn't matter,
what did the Legislature intend broadly for this statute?
Not, what we've decided on specific issues,
but how does it work?
How does that work and where does it end?
-: So the Legislature's intent is
it's a kind of a tortured analysis here
because obviously they had the now
unconstitutional residual clause where
crimes that you were discussing would naturally fall into.
And there are also lesser crimes
that are specifically categorized.
And I realized this court has also called out
to the Legislature.
If you disagree with us,
you know, I believe it was on the, the sexual assaults.
You know, you can amend it and that has not been done.
But I would suggest in this circumstance,
within ABDW causing serious bodily injury
and where a person has died by manslaughter,
that this is not a car accident,
this is a collision.
And the evidence here on the modified categorical approach
would show it was intentional
because there was a car struck,
then he drove around the car that was struck
and then he committed the fatal infliction of injury,
physical on the woman who was just getting into her car
after buying shoes
and then he went on to hit several more cars
before the rollover.
-: Ms. Lee. Isn't the problem here
that we're not just interpreting 58A
in a vacuum here.
That we're interpreting it
with the residual clause being held unconstitutional.
So we're not looking at the whole statute that's passed
we're looking at the Force clause.
And when the Force clause was written,
the Legislature recognized that there was a residual.
-: Yeah, I understand that the legislative purpose
originally would've totally included this case
and I would suggest the court
that this case still falls within it
so the Legislature would not have seen a need to amend it.
And I also rely on the analysis in the boarding case
from the US Supreme court. Thank you.
-: Okay, thank you. (clears throat) Attorney Levin.
-: Thank you, your honor. Good morning.
May I please the court Patrick Levin
on behalf of Roland Escobar.
There's sort of two pieces of this case,
and both of them are controlled by this court's prior cases.
So the first part is
whether the modified categorical approach
can apply in a pretrial detention setting
and then the second part is whether the Force clause
encompasses crimes that are,
can be committed through a reckless causation of injury.
Speaking first to the categorical approach,
the 58A process works in two steps.
The first step is
that the Judge arraignment
looks at the face of the complaint,
looks at what the charges are and does a legal analysis
of the elements of those crimes
to decide if they match up
with the predicate offenses
that are listed in 58A(1).
And the second stage,
the actual dangerousness hearing is the only part where
the underlying facts as alleged
are to be considered by the Judge.
It's very clear in this court's cases in Young
and in C and in again, in Vila
and footnote 14 of Vila in particular
speaks directly to this.
Specifically says, "at a bail determination hearing,
"we do not look beyond
"the elements of assault and battery
"to discern on a case by case basis
"whether a harmful, reckless or offensive battery is."
-: Mr. Levi, let me ask you about the modified categorical.
-: Yes, your honor.
-: Has that been used any detention statutes?
-: No, not that I'm aware of.
-: Other than what we did in abuse as Ms. Lee points out,
'cause there's lots of Force clauses
in the federal statute in other States
has modified categorical been used?
-: I haven't done an extensive,
you know 50 States survey,
to the best of my knowledge
to the Federal courts have uniformly followed
the analysis of the District of Columbia,
Circuit and Singleton,
which was the case this court relied on in Young,
which requires a categorical approach to be applied
under the Federal Bail Reform Act.
Speaking specifically to the Abuse clause
and this court's analysis in C,
I would disagree that that is
a modified categorical approach.
The thing about the Abuse clause is that
Chapter 276 Section 56A,
requires at every arraignment,
the Judge to make a finding
of whether or abuse is alleged or not
in connection with the crime.
And the Commonwealth has to file a written statement
along with the complaint, if abuse is alleged.
So at every single arraignment,
that question of is abuse alleged
in connection with this offense
is in front of the trial Judge
without them actually having to look underneath
into what the factual,
the specific factual allegation of the crime are.
So there is no inquiry into the facts of a particular case,
even in the context of the Abuse clause.
It's just whether the Commonwealth has filed that statement,
that abuse is alleged.
-: So the next question, Mr. Levin is,
if not, why not?
Why not use modified categorical
in the detention situation
when we did it in Ashford,
and basically fall Supreme court case off as it turns out?
-: Yeah. So the first reason is that
the statutory language is,
pretty clear in terms of speaking about
what are the elements of the offense as charged.
And so the
you know the, if they on the face of the complaint,
you can't see that at trial,
the Jury is gonna have to find
a use of force against the person of another
unanimously beyond a reasonable doubt,
that's not an element of the offense as charged
in the complaint.
The second reason is
that this is an arraignment
and it, these things need to move
the Judge can't be making factual determinations
about the facts of each individual case at arraignment.
And that's particularly true, I think in the Superior courts
where you're gonna that, I mean,
I guess he would have to have the Judge going back through
the grand Jury minutes at arraignment
and trying to figure out what the
basis of the crime is.
And then of course, the other thing is that
in a lot of cases, you know,
speaking to assault and battery, for example,
a given factual allegation could support either version.
It could be a reckless causation of injury,
or it could be an intentional act.
And it's up to the Jury to decide ultimately,
but it's not always gonna be clear
whether an intentional use of force is alleged at all.
-: Mr. Levin, could I ask you a question about that?
Why couldn't you do that on the face of the complaint?
I mean, there are two Whit clauses all the time, right?
Where they alleged the general law that's been violated
and there's a little paragraph on the complaint
that has just enough of the factual background
from the application that could say
what Attorney Lee said the first time
by swerving around the vehicle, after the initial accident,
they could be something kind of a akin to to it
in the complaint that it wouldn't involve
a whole lot of work by the presiding Judge at arraignment,
to determine that the, if not, why not?
-: Well, your honor,
I'm not gonna say that you couldn't allege some of the facts
of the case on the face of the complaint.
Usually they don't in this case,
it doesn't usually the complaint,
just try the statutory language,
but the, so if you look at the structure
of the pretrial detention statute, right?
It's pretty clear, like you have 58A(1),
these are the predicate offenses.
What are the elements of the offense?
The residual clause says other offenses which by its nature
presents a substantial risk of force.
And then if you look down to the subsection
that deals with the actual dangerousness hearing,
you have this direction for the Judge to consider based on
the nature and circumstances of the offense,
whether the you know,
any conditions of release advice to protect the public
and what this, what the DC circuit says in Singleton,
and what this court says in Young is that,
you can tell that from that disjuncture,
the nature of the offense has to do with the legal elements
of the offense as a formal matter.
And then the circumstances of the offense have to do with
the offense as alleged in a particular case.
And so the,
the nature of the offense is relevant at the arraignment
and then the circumstances of the offense only become
relevant at the actual dangerousness hearing.
And the, what this court's holding was in Young,
is that any inquiry into the underlying allegations
collapses that distinction improperly.
Legislative intent is for this to be
a legal analysis at arraignment.
And it's also important for that list to have
specificity for due process purposes.
The only reason this statute is
constitutional in the first place,
is because the predicate offenses are strictly limited
to a specified list
a categories of offenses
that can be determined ahead of time.
And so if you need to inquire into the allegations
of an individual case in order to figure out
whether it falls into the pretrial detention statute
in the first place, you're back in the world that,
the predecessor statute had in
which was struck down partially for that reason in aim.
If there are no more questions on the categorical approach,
I would move to this question of
whether reckless conduct qualifies.
Just to say that the language obviously is identical between
this statute and the ACC.
And there's no reason why it would mean anything different
in section 58A, than it does in,
the other statutes where this Force clause is used.
That's particularly true where you can see that
if the legislative HR wanted some other kind of crime
to qualify under section 58A,
they just depended that crime
to the list of predicate offenses.
And so you have, you know,
this list that says you get the Force clause,
the residual clause, burglary and arson, and then, you know,
restraining order violations, certain drug offenses,
certain gun offenses.
If the Legislature wanted some other crime to qualify
that didn't fall within the language
that was previously used in other statutes,
it didn't like secretly use the same language to mean
something different in this statute
it just added those other offenses to the list.
And so it's very clear from
the Federal cases and from this court's analysis in Ashford,
a use of physical force against the person of another
requires that the force be consciously directed
at that person
and a crime of recklessness doesn't require that.
So reckless crimes don't qualify as a crime whose elements
require a use of physical force
against the person of another.
Just to briefly address the Commonwealth's concern about
having multiple indictments related to the same charge
in order to qualify for pretrial detention.
I certainly am sympathetic to the idea that
it's not fair to a defendant for the prosecutor
to charge multiple crimes
arising out of the same incident,
but that has not historically been the view of the courts
or of the Commonwealth. And in this case, you can see the,
the assault and battery charges based on identical conduct
against an identical victim as the manslaughter charge
and the serious bodily injury
that was alleged is the death of that victim.
So there doesn't seem to be any practice of only charging,
you know, the, the minimum amount of charges that would,
capture the conduct that's alleged.
So certainly the Commonwealth could charge
various different crimes and try and choose one
that does qualify for pretrial detention
if that's one of their concerns.
In terms of the legislative intent,
the court already has discussed the residual clause,
which was the Legislatures,
the way that the Legislature tried to, you know,
bring some other crimes that didn't strictly require force
as an element into this statute,
which obviously has been struck down
just in terms of whether
the Legislature contemplated a car accident
as a potential predicate for detention.
I do think it's important to note the inclusion of OUI third
on the list of predicate offenses,
which does seem to show some legislative consideration
of the point at which driving offenses
begin to rise to the level of dangerousness
that should qualify them under this statute.
And, and so if it, you know,
and that's what the court in Young
sort of calls that out as well,
and says, "look, the Legislature clearly has been,
has thought about at what point,
do driving offenses
rise to this same level of dangerousness
and that's where they set that line.
And so I do think, you know,
you do see some legislative contemplation of
driving offenses possibly being included,
but they're not the offenses that are charged here.
If there are no more questions from the court,
I would like to reiterate the request I made in my brief
for the court to issue an immediate enter order
for a bail hearing in the superior court,
with an opinion to follow.
Mr. Escobar has been held now
on these charges for nine months unconstitutionally
and other than that, I would rest on the brief.