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SJC Weighs in on What Qualifies as a Predicate Offense for a Dangerousness Hearing

gavel-2-1236453-300x200The SJC recently issued a decision addressing which offenses qualify as predicate offenses for a dangerousness hearing under G.L. c.276, §58A: Commonwealth v. Barnes and Commonwealth v. Scione.  In Barnes, the Court ruled that a violation of G.L. c.265, §23A (rape of child aggravated by age difference, i.e., statutory rape) does not qualify as a predicate offense under G.L. c.276, §58A.  In Scione, the Court ruled “that, depending upon the circumstances,” a violation of G.L. c.266, §102A (use of incendiary device) “may (and, in this case, does) … qualify” as such a predicate offense.

“Predicate offenses under [G.L. c.276,] §58A either are specifically enumerated in the statute or fall within one (or more) of the following categories: (1) those felonies that ha[ve] as an element of the offense the use, attempted use or threatened use of physical force against the person of another‟ (force clause); (2) any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result‟ (residual clause); or (3) a misdemeanor or felony involving abuse as defined in [G.L. c.209A, §1, the abuse prevention statute] (abuse clause).”

The background of the Barnes case was as follows. When he was forty-three years old, defendant Barnes had sexual intercourse with a fifteen year old girl. He was charged with statutory rape in violation of [G.L. c.265,] §23A. In his appeal from an adverse ruling at a dangerousness hearing under [G.L. c.276,] §58A, he “argu[ed] that (1) §23A does not qualify as a predicate offense under the force clause of §58A; and (2) the residual clause of §58A is unconstitutionally vague. A Superior Court judge agreed[,]” the Commonwealth filed a petition pursuant to G.L. c.211, §3, and the matter made its way to the SJC. In its decision favorable to Barnes, the SJC first ruled that “[b]ecause the use, attempted use or threatened use of physical force is not an element of §23A, [a violation of that] statute does not qualify as a predicate offense under the force clause of §58A.” The SJC also agreed with the Superior Court judge “that the language in the residual clause of §58A is unconstitutionally vague under art. 12 [of the Massachusetts Declaration of Rights] and therefore §23A cannot qualify as a predicate offense pursuant to it.”

The background of the Scione case was as follows. “Police responded to a 911 call reporting a fire in the driveway of the victim’s residence.” The defendant and the victim had been romantically involved for four years, but the victim ended the relationship several years prior to the fire. “A police detective described the origin of the fire as a homemade improvised explosive device … which, had it exploded, could have caused serious harm.” Scione was charged with violating [G.L. c.266,] §102A, which provides for punishment of a person who “places an explosive or a destructive or incendiary device or substance with the intent: (i) to cause fear, panic or apprehension in any person; or (ii) to ignite, explode or discharge such explosive or such destructive or incendiary device or substance.” The Commonwealth prevailed at Scione’s dangerousness hearing under [G.L. c.276,] §58A. Scione’s efforts to challenge that ruling included his filing of a petition pursuant to G.L. c.211, §3, which eventually reached the SJC. “Scione argue[d] that the lower court judge erred in concluding that a charge under §102A qualifies as a predicate offense under the abuse clause [of §58A].” In its decision rejecting Scione’s argument, the SJC opined “that the plain language of the abuse clause of §58A captures all offenses involving abuse‟ as defined in G.L. c.209A, §1.” Here, stated the Court, Scione’s offense involved abuse because, in the language of c.209A, §1, (1) the incident was an “occurrence … between family or household members” (a term which includes persons who have previously been in a substantive dating relationship), (2) Scione “attempt[ed] to cause … physical harm” to the victim, and (3) he “plac[ed] [the victim] in fear of imminent serious physical harm.”

Being held pursuant to a finding of dangerous has an extremely significant impact on an individual because it may result in a 120 day detention. Such a detention not only potentially disrupts a person’s housing, employment, and personal relationships, but may also induce a defendant to plead guilty simply to get out of custody even when a case is defensible. If you or a loved one has been charged with a new crime and are facing a dangerousness hearing, you will need a skilled and experienced attorney to determine whether the offense qualifies as a predicate offense under the statute, and to fight for your liberty. Attorney Daniel Cappetta has successfully litigated many dangerousness hearings and always makes sure that his clients get the best defense possible. Call him for a free consultation today.