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SJC-13827
DOMINGO AGOSTINI vs. COMMONWEALTH.
Suffolk. November 5, 2025. – March 10, 2026.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.
Pretrial Detention. Robbery. Dangerous Weapon. Statute, Construction. Moot Question.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 15, 2025.
The case was reported by Gaziano, J.
Haylie Jacobson, Committee for Public Counsel Services (Jennifer Magaw, Committee for Public Counsel Services, also present) for the petitioner. Rachel J. Eisenhaure, Assistant District Attorney, for the Commonwealth.
GAZIANO, J. Under G. L. c. 276, § 58A (§ 58A), the
Commonwealth may seek pretrial detention of a criminal defendant
charged with certain predicate crimes where the defendant poses
a danger to the safety of any other person or the community.
The list of predicate crimes includes any felony offense that 2
has as an element "the use, attempted use or threatened use of
physical force against the person of another," under the so-
called force clause. G. L. c. 276, § 58A (1). The question in
this case is whether armed robbery, G. L. c. 265, § 17 (§ 17),
qualifies as a predicate offense under § 58A's force clause.
This requires an application of our categorical approach, where
we look at the definition of the crime, not the particular facts
presented, to determine the type of conduct criminalized by the
statute. See Commonwealth v. Vieira, 483 Mass. 417, 422 (2019).
We conclude that, because armed robbery may be committed through
the application of minimal physical force (such as a purse
snatching), and without the display or otherwise use of a
weapon, armed robbery is not a predicate offense under the force
clause of § 58A.
1. Background. The following is taken from the parties'
agreed-upon statement of facts. See Vieira, 483 Mass. at 418.
On August 18, 2025, a District Court complaint was issued
charging the defendant, Domingo Agostini, with one count of
armed robbery, G. L. c. 265, § 17, and one count of bomb/hijack
threat, G. L. c. 269, § 14 (b).1 The complaint application
alleged that the defendant entered a bank on August 18 and
1 Although Domingo Agostini commenced this action by filing a petition in the county court, for convenience, we refer to him as the defendant. 3
showed a teller a ripped piece of a brown paper bag with "I have
a bomb" written on it. It did not allege that the teller
observed a bomb or any other weapon.
The complaint application further alleged that after the
teller gave the defendant money with a dye pack, the defendant
walked out of the bank and ran toward his car, at which point
the dye pack burst and at least some of the money was abandoned.
The defendant drove away, and shortly thereafter several people
found money covered in red dye on the ground nearby. The
defendant was arrested about three and one-half hours later.
Upon the defendant's August 27 District Court arraignment,
the Commonwealth filed a motion for pretrial detention under
§ 58A. The defendant was held without bail pending a hearing on
that motion.
A hearing was held on September 2, and defense counsel
argued that neither of the charged offenses qualified as a
predicate offense under § 58A's force clause. A District Court
judge ordered the defendant held without bail, listing both
armed robbery and bomb/hijack threat as predicate offenses under
§ 58A.
On September 4, the defendant filed a petition for review
of the decision in the Superior Court. See G. L. c. 276,
§ 58A (7). During a September 8 hearing, defense counsel again
argued that neither charge was a predicate offense under § 58A. 4
A Superior Court judge took the matter under advisement and
ordered the defendant held without bail, citing only armed
robbery as a predicate offense under § 58A.2
On September 15, the defendant filed an emergency petition
for relief in the county court pursuant to G. L. c. 211, § 3, in
which he asked a single justice to vacate the pretrial detention
orders. On September 25, the single justice reserved and
reported the case to the full court.
On January 8, 2026, while this appeal was pending, the
defendant pleaded guilty to the underlying criminal charges and
received two concurrent sentences of from two to four years in
State prison. Thus, he is no longer detained pursuant to § 58A.
Because the defendant's only request for relief in this appeal
is to vacate his pretrial detention order, and he is no longer
being held in pretrial detention, his appeal is moot. See
Commonwealth v. Murchison, 428 Mass. 303, 305 (1998).
Nonetheless, we exercise our discretion to address the issue in
this case, as "it is important to the administration of G. L.
c. 276, § 58A, and is likely to recur, yet evade appellate
review." Commonwealth v. Dayton, 477 Mass. 224, 225 n.1 (2017).
2 The Commonwealth concedes that the crime of bomb/hijack threat, G. L. c. 269, § 14 (b), does not qualify as a predicate offense permitting pretrial detention under § 58A. 5
2. Discussion. a. Pretrial detention under § 58A. "The
Fourteenth Amendment to the United States Constitution and arts.
1, 10, and 12 of the Massachusetts Declaration of Rights
establish a fundamental right to liberty and freedom from
physical restraint that cannot be curtailed without due process
of law." Brangan v. Commonwealth, 477 Mass. 691, 702 (2017).
"[I]n certain limited circumstances a judge may properly detain
a defendant before trial, where such detention is demonstrably
necessary to ensure the defendant's appearance at future
proceedings or to protect public safety." Id. at 703. However,
"liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception" (citation omitted).
Aime v. Commonwealth, 414 Mass. 667, 677 (1993).
When the Commonwealth seeks pretrial detention of a
defendant under § 58A, the threshold question is whether the
defendant has been charged with committing any of the statute's
predicate offenses. See Commonwealth v. Escobar, 490 Mass. 488,
492 (2022). "If no predicate offense has been charged, a
defendant may not be placed in pretrial detention under
[§ 58A]." Vieira, 483 Mass. at 421.
To qualify as a predicate offense, a crime must either be
specifically enumerated in § 58A or fall within at least one of
the statute's broader categories. See Scione v. Commonwealth,
481 Mass. 225, 227 (2019). See, e.g., Vega v. Commonwealth, 490 6
Mass. 226, 234-235 (2022) (unlawful possession of firearm is
enumerated predicate offense warranting § 58A pretrial
detention). Armed robbery, G. L. c. 265, § 17, is not among the
crimes expressly enumerated as a predicate offense under § 58A.
See G. L. c. 276, § 58A. There are two viable categories of
unenumerated predicate offenses under § 58A: (1) any felony
that, pursuant to the statute's force clause, "has as an element
of the offense the use, attempted use or threatened use of
physical force against the person of another"; and (2) any
misdemeanor or felony that, pursuant to the statute's abuse
clause, "involv[es] abuse as defined in [G. L. c. 209A, § 1]."3
G. L. c. 276, § 58A (1). See Scione, 481 Mass. at 232. Only
the force clause is relevant here.
"In determining whether a crime qualifies under the force
clause of [§ 58A], we take a categorical approach" (quotation
omitted). Campbell v. Commonwealth, 494 Mass. 750, 753 (2024),
quoting Vieira, 483 Mass. at 422. Under the categorical
approach, a crime constitutes a predicate offense "if, and only
if, the elements of the offense always fall within the ambit of
3 In Scione, 481 Mass. at 232, we determined that the residual cause, which provided a third category of predicate offense under § 58A, was unconstitutionally vague. This leaves "only two pathways by which an offense not otherwise listed in § 58A may qualify as a predicate offense." Campbell, 494 Mass. at 753. 7
the force clause." Escobar, 490 Mass. at 496. That is, we
"look at the definition of the crime, rather than the facts of
any one particular case," Vieira, supra, to determine whether
all conduct criminalized by the statute -- including "the most
innocent conduct" -- falls within the force clause (citation
omitted), Campbell, supra at 754. This "strict elements-based
approach" is appropriate because a defendant has no right to a
trial by jury for a determination of dangerousness under § 58A.
Vieira, supra.
Applying the categorical approach, we have determined that
a crime does not necessarily fall within the force clause simply
because it requires some degree of physical contact. See
Vieira, 483 Mass. at 424. For example, in Vieira, we held that
when based on an offensive battery, the crime of indecent
assault and battery on a child does not qualify as a predicate
offense under the force clause because the most innocent conduct
criminalized by the relevant statute included "de minimis
touchings" (citation omitted). Id. at 424-427. Additionally,
we have held that statutory rape -- distinct from forcible rape
of a child -- is not a predicate offense under the force clause.
See Scione, 481 Mass. at 228-230. Conversely, in Campbell, 494
Mass. at 750, we determined that rape is a predicate offense
under the force clause because it "is a crime of physical 8
violence requiring unwanted forceful penetration of another
person."
b. Armed robbery. General Laws c. 265, § 17, provides
that it is a crime for any person "armed with a dangerous
weapon" to "assault[] another and rob[], steal[] or take[] from
his person money or other property which may be the subject of
larceny." To prove armed robbery, the Commonwealth is required
to establish that the defendant "(1) was armed with a dangerous
weapon; (2) either applied actual force or violence to the body
of the [victim] . . . or by words or gestures put [that person]
in fear; (3) took the money or the property of another; and (4)
did so with the intent (or sharing the intent) to steal it"
(citation omitted). Commonwealth v. Souza, 494 Mass. 705, 721
(2024).
We must determine whether these elements require the "use,
attempted use or threatened use of physical force" against
another person. G. L. c. 276, § 58A (1). We first examine the
element of actual or constructive force and then consider the
element of being armed with a dangerous weapon.
i. Force. An individual may commit armed robbery by
"force applied to the person" (actual force) or by "an assault
putting the person in fear" (constructive force). Commonwealth
v. Joyner, 467 Mass. 176, 187 (2014), quoting Commonwealth v.
Richards, 363 Mass. 299, 302 (1973). Importantly, "[w]hether 9
actual or constructive force is employed, the degree of force is
immaterial so long as it is sufficient to obtain the victim's
property against his will" (quotation and citation omitted).
Commonwealth v. Jones, 362 Mass. 83, 87 (1972). See
Commonwealth v. Mora, 477 Mass. 399, 407 (2017) ("as long as the
victim is aware of the application of force which relieves him
of his property, . . . the requisite degree of force is present
to make the crime robbery" [quotation and citation omitted]).
We have previously considered the level of force necessary
to distinguish robbery, G. L. c. 265, § 19, from larceny, which
provides guidance here. See Jones, 362 Mass. at 85-90. In
Jones, a purse snatching case, we noted that "[t]he exertion of
force, actual or constructive, [is] the principal distinguishing
characteristic of [robbery]." Id. at 86. The Jones court
rejected the defendant's proposed interpretation that a
"snatching or sudden taking of property . . . does not involve
sufficient force to constitute robbery, unless the victim
resists the taking or sustains physical injury." Id. at 87-88.
Instead, we held that where "the actual force used is sufficient
to produce [the victim's] awareness, . . . the requisite degree
of force is present to make the crime robbery," even if it is
"so quick as to deny the victim any opportunity to resist." Id.
at 89. See Commonwealth v. Santos, 440 Mass. 281, 291 (2003),
overruled on other grounds by Commonwealth v. Anderson, 461 10
Mass. 616, cert. denied, 568 U.S. 946 (2012) (noting that
"snatching" can constitute sufficient "force" to transform crime
into robbery). Beyond that, as previously noted, "the degree of
force is immaterial." Jones, supra at 87.
Our holding in Jones "depart[ed] from the [majority] rule,
under which robbery requires some resistance by or injury to the
victim." United States v. Starks, 861 F.3d 306, 319 (1st Cir.
2017). See 3 W.R. LaFave, Substantive Criminal Law
§ 20.3(d)(1), at 235 (3d ed. 2018) (noting Massachusetts robbery
rule did not follow "[t]he great weight of authority" requiring
force necessary to overcome victim's resistance). See also
Martin v. State, 100 Fla. 16, 20 (1930) (Florida robbery
conviction requires force "actually sufficient to overcome the
victim's resistance"); People v. Patton, 76 Ill. 2d 45, 52
(1979) (snatching "without any sensible or material violence to
the person" is theft, not robbery [citation omitted]); State v.
Sein, 124 N.J. 209, 217 (1991) ("robbery requires more force
than that necessary merely to snatch the object" without
"injury, threat, struggle, or attempted resistance"); Model
Penal Code § 222.1(1) (Official Draft and Revised Comments 1980)
(defining robbery as requiring defendant to "inflict[] serious
bodily injury upon another" or "threaten[] another with or
purposely put[] him in fear of immediate serious bodily
injury"). 11
Here, although robbery may require physical contact to
remove property from someone else, the "most innocent" version
of robbery can include minor physical contact, such as purse
snatching. See Jones, 362 Mass. at 87. Because the "degree of
force is immaterial" to sustain a robbery conviction, id., the
crime of robbery alone does not fall within § 58A's force
clause, see Campbell, 494 Mass. at 755 ("'physical force' [under
§ 58A] entails 'a degree of [physical] power that would not be
satisfied by the merest touching'"); Vieira, 483 Mass. at 424
(even if offense "requires physical contact or touching," it
does not necessarily require use of "physical force" under
§ 58A's force clause).
In arguing to the contrary, the Commonwealth analogizes
armed robbery to a different offense that falls within the force
clause -- rape. See Campbell, 494 Mass. at 759. In support,
the Commonwealth cites Commonwealth v. Caracciola, 409 Mass. 648
(1991), a case concerning whether an alleged threat of force was
sufficient to support an indictment for rape under G. L. c. 265,
§ 22 (b) (§ 22). In analyzing § 22's statutory force
requirement, we noted that "[b]ecause robbery and rape are both
crimes of violence, there is no reason to conclude the
Legislature assigned a different, more limited meaning to the
word 'force' in the rape statute from its meaning in the robbery
statute." Caracciola, supra at 652. The Commonwealth argues 12
that because we compared rape to robbery in Caracciola, and then
later held that § 22 is a predicate offense warranting pretrial
detention under § 58A's force clause, see Campbell, supra at
750, we should hold that robbery is also a predicate offense
under § 58A. We disagree.
After Caracciola, 409 Mass. 648, we directly addressed
whether § 22 rape is a predicate offense under § 58A's force
clause. See Campbell, 494 Mass. at 750-762. We held that rape
falls within § 58A's force clause specifically because of the
inherent violence of nonconsensual sexual penetration. Id. at
757. "[T]he most innocent conduct criminalized by § 22 still
entails forceful penetration against the will of the victim.
The violence inherent in forced penetration under § 22,
regardless of its extent or the way in which it is accomplished,
differentiates rape from the merest touching" (quotations and
citations omitted). Id. at 759. We accordingly "reject[ed] the
notion of a nonviolent forcible rape." Id. at 762. The crime
of armed robbery, by contrast, may be committed without any such
force.
ii. Armed with a dangerous weapon. Armed robbery also
requires that a defendant be "armed with a dangerous weapon."
G. L. c. 265, § 17. The Commonwealth is not required to prove
that a defendant "used or displayed the dangerous weapon during
the robbery." Anderson, 461 Mass. at 633. "[I]t is sufficient 13
that . . . the robber possessed the dangerous weapon during the
robbery." Id. See Commonwealth v. Nickologines, 322 Mass. 274,
277 (1948) ("It is not necessary to show the use of a dangerous
weapon in proving the offence of robbery while armed. The gist
of the offence is being armed, not the use of the weapon"). The
victim also does not need to fear, or even be aware of, the
weapon during the robbery. See Commonwealth v. Rogers, 459
Mass. 249, 253 n.6, cert. denied, 565 U.S. 1080 (2011) ("the
perpetrator need not display the weapon or otherwise make the
victim aware of its presence").
Armed robbery is an aggravated form of robbery because the
presence of a dangerous weapon escalates the risk that violent
physical force will be used. See Commonwealth v. Tarrant, 367
Mass. 411, 415 (1975) ("it is not only the actual use of the
weapon in the sense of harm in fact inflicted that makes the
crime of armed robbery aggravated; rather it is more importantly
the potential for injury, and the tendency toward resistance,
conflict, and violence in result which exists where robbery is
perpetrated with the use of a dangerous weapon"). But there is
a "material difference between the presence of a weapon, which
produces a risk of violent force, and the actual or threatened
use of such force." United States v. Parnell, 818 F.3d 974, 980
(9th Cir. 2016). The conduct criminalized by § 17 includes the
mere presence of a dangerous weapon without the victim's 14
knowledge, which falls short of the actual "use, attempted use
or threatened use" of the weapon itself. G. L. c. 276,
§ 58A (1). Thus, being armed with a dangerous weapon does not
categorically require the degree of force contemplated by
§ 58A's force clause.
We accordingly hold that armed robbery, G. L. c. 265, § 17,
does not categorically contain an element of physical force or
qualify as a predicate offense under G. L. c. 276, § 58A.
c. Related statutes. Our interpretation is consistent
with the interpretation of similar force clauses, including the
Massachusetts armed career criminal act (Massachusetts ACCA),
G. L. c. 269, § 10G, and the Federal armed career criminal act
(Federal ACCA), 18 U.S.C. § 924(e). Both utilize force clauses
that are nearly identical to § 58A's force clause, imposing a
sentence enhancement for the commission of an offense -- a
"violent crime" under the Massachusetts ACCA and a "violent
felony" under the Federal ACCA -- that "has as an element the
use, attempted use, or threatened use of physical force" against
another person. See G. L. c. 269, § 10G (e); G. L. c. 140,
§ 121. See also 18 U.S.C. § 924(e)(2)(B)(i). Given this
similar language, we have relied on interpretations of the
Massachusetts and Federal ACCA force clauses as persuasive
authority in interpreting § 58A's force clause. See Vieira, 483
Mass. at 426-427. Indeed, the Federal ACCA, which predates the 15
enactment of § 58A,4 was "presumably known to [§ 58A's]
enactors," and consequently we may derive the "usual and
accepted meaning" of the force clause from it (citation
omitted). Id. at 426. See id. at 427 ("Where a word or phrase
is obviously transplanted from another legal source, . . . it
brings the old soil with it" [quotation and citation omitted]).
A review of case law under the Massachusetts and Federal
ACCA supports our interpretation of § 58A's force clause. For
example, in Mora, 477 Mass. at 406-408, we concluded that
unarmed robbery, based on the evidence presented, did not
constitute a "violent crime" for purposes of a sentence
enhancement under the Massachusetts ACCA. We reasoned, in part,
that while the Massachusetts ACCA's force clause requires the
use of "violent or substantial force capable of causing pain or
injury," the degree of force used for robbery is largely
"immaterial," where the victim need not resist or be placed in
fear (citations omitted). Id. at 407. See Starks, 861 F.3d at
317-324 (armed robbery, G. L. c. 265, § 17, is not "violent
felony" under Federal ACCA force clause because, inter alia,
4 As we have previously noted, § 58A was enacted in 1994, while the relevant language in the Federal ACCA appeared as early as 1984. See Vieira, 483 Mass. at 426 n.16. 16
degree of force is immaterial); Parnell, 818 F.3d at 978-981
(same).
3. Conclusion. Armed robbery, G. L. c. 265, § 17, does
not qualify as a predicate offense under the force clause in
G. L. c. 276, § 58A (1). This matter is remanded to the county
court for entry of a judgment vacating the Superior Court
judge's order of pretrial detention.
So ordered.