NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1043
COMMONWEALTH
vs.
KAREN CORDEIRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves an unusual circumstance concerning a
motion to be released on personal recognizance filed by a
criminal defendant awaiting a new trial on a charge of murder in
the second degree. She faces a possible sentence of life with
the possibility of parole, has been held in custody for almost
twenty years, but has been incompetent to stand trial and
civilly committed for the last twelve. We conclude that the
motion judge failed to comply with the requirements of Brangan
v. Commonwealth, 477 Mass. 691, 709-710, S.C., 478 Mass. 361
(2017), in denying the motion. We therefore reverse an order by
a single justice of this court denying the defendant's petition for review. We allow the petition, vacate the motion judge's
bail order, and remand for further proceedings.
Background. 1. The offense. The defendant was indicted
for murder in the first degree in 2005. As alleged by the
Commonwealth, the murder was brutal. The victim and the
defendant exchanged words outside a nightclub in Providence,
Rhode Island. As they parted ways, the defendant challenged the
victim to come back to Fall River to settle their differences.
Unfortunately, the victim, a nineteen year old woman,
accepted the challenge, and around 3 A.M., parked her car just
down the street from the defendant's apartment and called to
tell her she was there. The defendant grabbed two steak knives
and a beer bottle and headed outside.
On leaving her apartment, according to a witness, the
defendant and her codefendant, who had been in the apartment
with her, bent over and smashed beer bottles against the
pavement. They walked to where the victim had parked her car.
The victim exited her car. The codefendant approached the
victim and struck her in the side of the face with a broken beer
bottle. The defendant then approached the victim and began
fighting with her. Another witness testified that she witnessed
the defendant stab the victim in the neck while the two women
were still on their feet.
2 At some point, the two of them fell to the ground where the
fight continued for a short period of time until the victim's
movements gradually became sluggish and slower, perhaps due to
blood loss. The defendant returned to her feet and kicked the
victim several times with her shod foot.
According to the allegations, when a police officer arrived
a short time later, the defendant held up her hands, put her
wrists together and stated, "I did it. I stabbed her. It was
self-defense." She submitted to a videotaped interview with
detectives at the Fall River Police Department in which she
admitted leaving her apartment with either one or two steak
knives and a bottle but claimed to have no knowledge of stabbing
the victim.
In 2007, a jury convicted the defendant of the lesser
included offense of murder in the second degree. She was
sentenced to life in State prison with the possibility of
parole.
2. The defendant's mental health. In 2009, the defendant
filed a motion for a new trial, and following a multiday
evidentiary hearing, the trial judge allowed the motion in
January 2012. The judge found both that the defendant may not
have been competent during the trial and that there was a
considerable risk that the jury would have found the defendant
did not act with malice at the time of the crime. There was
3 evidence that the defendant sometimes saw and heard "weird
stuff" that was not real. There were numerous records from her
initial pretrial detention at the Bristol County house of
correction reflecting mental health issues, including
dissociation and visual and auditory hallucinations. And, after
trial, in State prison, she was diagnosed with schizotypal
personality disorder and schizoaffective disorder.
The judge found that the defendant proffered credible
expert testimony that she "suffered from Sleep Paralysis and was
in a dissociative state at the time of the killing, during which
she merged her repetitive hallucinatory experiences with
reality." The judge concluded,
"there is a considerable risk that the jury would have reached a different conclusion had the newly discovered evidence been admitted at trial. The court has more than a lingering doubt about the outcome of [the defendant's] trial. In the court's view, the newly discovered evidence casts real doubt on the justice of [the defendant's] conviction, warranting a new trial."
After the order for a new trial issued, a different judge set
bail at $250,000 cash.
The Commonwealth appealed the order allowing the new trial
motion, but in February 2013, the Commonwealth voluntarily
dismissed its appeal. In April 2013, the defendant was referred
by yet another judge of the Superior Court to the Worcester
Recovery Center and Hospital (WRCH) for a competency evaluation.
After evaluation, WRCH filed a petition for commitment.
4 In August 2013, fourteen months after bail was set, the
defendant was found incompetent to stand trial. The next month,
she was civilly committed, pursuant to G. L. c. 123, § 16 (b).
The defendant has been confined to WRCH ever since.
Through multiple annual reviews by the court and multiple
evaluations by different experts, she has remained both
incompetent to stand trial and civilly committed. Due to her
mental health issues, the defendant is also under a
guardianship, pursuant to Rogers v. Commissioner of Dep't of
Mental Health, 390 Mass. 489 (1983), from the Bristol County
Probate and Family Court; her sister is her guardian.
Although the defendant remains incompetent to stand trial,
medical personnel have concluded that she no longer requires a
hospital level of care. Her treatment team considers her
suitable for discharge to a staffed group home, where she could
receive psychiatric services in a community setting. The
Department of Mental Health (DMH) conducted an independent
forensic risk assessment in January 2021, which concluded that
the treatment team's discharge plan would provide "the necessary
safeguards, treatment resources, and supports that have
mitigated [the defendant's] risk for violence during her
hospitalization." Since the defendant remains civilly committed
and a gradual discharge would be necessary, visiting such a
program may require overnight passes.
5 3. The instant motion and appeal. Because the defendant
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1043
COMMONWEALTH
vs.
KAREN CORDEIRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case involves an unusual circumstance concerning a
motion to be released on personal recognizance filed by a
criminal defendant awaiting a new trial on a charge of murder in
the second degree. She faces a possible sentence of life with
the possibility of parole, has been held in custody for almost
twenty years, but has been incompetent to stand trial and
civilly committed for the last twelve. We conclude that the
motion judge failed to comply with the requirements of Brangan
v. Commonwealth, 477 Mass. 691, 709-710, S.C., 478 Mass. 361
(2017), in denying the motion. We therefore reverse an order by
a single justice of this court denying the defendant's petition for review. We allow the petition, vacate the motion judge's
bail order, and remand for further proceedings.
Background. 1. The offense. The defendant was indicted
for murder in the first degree in 2005. As alleged by the
Commonwealth, the murder was brutal. The victim and the
defendant exchanged words outside a nightclub in Providence,
Rhode Island. As they parted ways, the defendant challenged the
victim to come back to Fall River to settle their differences.
Unfortunately, the victim, a nineteen year old woman,
accepted the challenge, and around 3 A.M., parked her car just
down the street from the defendant's apartment and called to
tell her she was there. The defendant grabbed two steak knives
and a beer bottle and headed outside.
On leaving her apartment, according to a witness, the
defendant and her codefendant, who had been in the apartment
with her, bent over and smashed beer bottles against the
pavement. They walked to where the victim had parked her car.
The victim exited her car. The codefendant approached the
victim and struck her in the side of the face with a broken beer
bottle. The defendant then approached the victim and began
fighting with her. Another witness testified that she witnessed
the defendant stab the victim in the neck while the two women
were still on their feet.
2 At some point, the two of them fell to the ground where the
fight continued for a short period of time until the victim's
movements gradually became sluggish and slower, perhaps due to
blood loss. The defendant returned to her feet and kicked the
victim several times with her shod foot.
According to the allegations, when a police officer arrived
a short time later, the defendant held up her hands, put her
wrists together and stated, "I did it. I stabbed her. It was
self-defense." She submitted to a videotaped interview with
detectives at the Fall River Police Department in which she
admitted leaving her apartment with either one or two steak
knives and a bottle but claimed to have no knowledge of stabbing
the victim.
In 2007, a jury convicted the defendant of the lesser
included offense of murder in the second degree. She was
sentenced to life in State prison with the possibility of
parole.
2. The defendant's mental health. In 2009, the defendant
filed a motion for a new trial, and following a multiday
evidentiary hearing, the trial judge allowed the motion in
January 2012. The judge found both that the defendant may not
have been competent during the trial and that there was a
considerable risk that the jury would have found the defendant
did not act with malice at the time of the crime. There was
3 evidence that the defendant sometimes saw and heard "weird
stuff" that was not real. There were numerous records from her
initial pretrial detention at the Bristol County house of
correction reflecting mental health issues, including
dissociation and visual and auditory hallucinations. And, after
trial, in State prison, she was diagnosed with schizotypal
personality disorder and schizoaffective disorder.
The judge found that the defendant proffered credible
expert testimony that she "suffered from Sleep Paralysis and was
in a dissociative state at the time of the killing, during which
she merged her repetitive hallucinatory experiences with
reality." The judge concluded,
"there is a considerable risk that the jury would have reached a different conclusion had the newly discovered evidence been admitted at trial. The court has more than a lingering doubt about the outcome of [the defendant's] trial. In the court's view, the newly discovered evidence casts real doubt on the justice of [the defendant's] conviction, warranting a new trial."
After the order for a new trial issued, a different judge set
bail at $250,000 cash.
The Commonwealth appealed the order allowing the new trial
motion, but in February 2013, the Commonwealth voluntarily
dismissed its appeal. In April 2013, the defendant was referred
by yet another judge of the Superior Court to the Worcester
Recovery Center and Hospital (WRCH) for a competency evaluation.
After evaluation, WRCH filed a petition for commitment.
4 In August 2013, fourteen months after bail was set, the
defendant was found incompetent to stand trial. The next month,
she was civilly committed, pursuant to G. L. c. 123, § 16 (b).
The defendant has been confined to WRCH ever since.
Through multiple annual reviews by the court and multiple
evaluations by different experts, she has remained both
incompetent to stand trial and civilly committed. Due to her
mental health issues, the defendant is also under a
guardianship, pursuant to Rogers v. Commissioner of Dep't of
Mental Health, 390 Mass. 489 (1983), from the Bristol County
Probate and Family Court; her sister is her guardian.
Although the defendant remains incompetent to stand trial,
medical personnel have concluded that she no longer requires a
hospital level of care. Her treatment team considers her
suitable for discharge to a staffed group home, where she could
receive psychiatric services in a community setting. The
Department of Mental Health (DMH) conducted an independent
forensic risk assessment in January 2021, which concluded that
the treatment team's discharge plan would provide "the necessary
safeguards, treatment resources, and supports that have
mitigated [the defendant's] risk for violence during her
hospitalization." Since the defendant remains civilly committed
and a gradual discharge would be necessary, visiting such a
program may require overnight passes.
5 3. The instant motion and appeal. Because the defendant
cannot meet the bail set in 2012, she cannot be released into
the community or get the passes necessary to do so, to receive
what her healthcare providers assert is the appropriate level of
care, something not available at WRCH. Although the defendant
makes factual arguments for why she would not pose a risk were
she able to transfer to an outside residential program, these
are not locked facilities. Yet, it is the clinical opinion of
her treatment team at WRCH that she will quickly decompensate if
placed in a jail. This would likely require another lengthy
hospitalization in order to return her to baseline and prepare
her for discharge.
On February 15, 2022, the defendant moved for release on
personal recognizance. The Commonwealth opposed this motion,
and a nonevidentiary hearing was held on May 4, 2022, before a
judge who was neither the trial judge nor the judge who
originally set the bail. On June 1, 2022, the motion was
denied. The motion judge concluded, "[t]he Commonwealth
continues to have a strong case against the defendant for Murder
in the Second Degree, and the defendant continues to face a life
sentence (with the possibility of parole) if convicted." The
judge found "that [the defendant] would still be a flight risk
based on the significant sentence she would be facing if
convicted." Finally, the motion judge found "that a significant
6 cash bail, in the amount of $250,000, is still warranted." The
judge wrote, "Any adverse impact on the defendant resulting from
this significant bail is outweighed by the Commonwealth's
interest in having the defendant held accountable for the
brutal, violent attack alleged in this indictment."
The motion judge stated that, "[a]lthough the defendant's
mental health has stabilized during her period of commitment,
there is no indication that she or the [WRCH] have taken any
steps to restore her to a level of competence where the criminal
proceedings against her can resume. At this time, she remains
incompetent to stand trial." This might be read to imply that
the proposed residential treatment would not provide any
progress toward restoring the defendant's competence to stand
trial. The judge did not mention the fact that the defendant
would immediately be eligible for parole if convicted of the
most serious crime of which she could be convicted, murder in
the second degree, as she has been in custody since 2005 and is
entitled to credit for the time she was in custody and civilly
committed. See Commonwealth v. Schmitt, 98 Mass. App. Ct. 403,
405-406 (2020).
The defendant sought review of the bail decision from the
single justice of the Supreme Judicial Court. The Supreme
Judicial Court single justice transferred the appeal to the
single justice session of this court. The single justice of
7 this court denied the defendant's petition by order dated
October 17, 2022, and this appeal to the full bench was timely
filed.
4. The argument before us. As the single justice did, we
treat the motion below as a new bail motion, and review it, as
the single justice did, for abuse of discretion or clear error
of law. The defendant argues that the single justice should not
have reviewed the bail determination for abuse of discretion or
clear error of law. She argues he should have considered the
facts, as well as the law, de novo, and "exercise[d] his own
judgment and discretion." Commesso v. Commonwealth, 369 Mass.
368, 373 (1975). She contends that this is so because, unlike
in the ordinary case, where the petition is from a bail order
that was set by a District Court judge and then reviewed by a
judge of the Superior Court before appeal to the single justice,
the order below revisits a bail order issued ten years prior,
based on facts that emerged over that decade, and only one prior
judge heard the issue. We need not decide this issue, however,
because we do find a clear error of law, and think the prudent
course, regardless of the proper standard of review, would be to
remand this to the trial court for a de novo hearing, from
which, if the defendant is unsatisfied, appeal can then be had
to the single justice.
8 Turning to the merits, as the defendant points out,
Brangan, 477 Mass. at 709-710, requires that a bail order like
the one at issue here consider "the length of the defendant's
pretrial detention and the equities of the case." As to length
of sentence, the defendant argues correctly that in relying on
length of sentence she is potentially facing, the motion judge's
order does not take into account the fact that she would be
eligible for parole immediately, which might reduce any flight
risk.
As to the equities, the defendant points out a number of
weaknesses in the judge's order. The motion judge in imposing
the same bail amount as that imposed in 2012 did not mention the
reservations of the trial judge about the strength of the
Commonwealth's case and whether a retrial would result in a
finding of guilt. The motion judge did not mention that the
defendant may have been incompetent at the time the crime was
committed. The defendant also argues that with civil commitment
and a Rogers guardianship in place, there are significant
assurances beyond the bail amount for her appearance in court,
which were not present at the time the current bail was
established, and that were not considered in the order.
The defendant also notes that the motion judge's order does
not state how the bail amount was calculated. Nor, the
defendant argues, does the motion judge's order explain why no
9 less restrictive condition, for example, the ongoing civil
commitment with the DMH, or the use of a global positioning
system (GPS) bracelet in conjunction with supervision by DMH
staff, would not be sufficient to ensure the defendant's
appearance in court.
She asserts that her inability to meet the current bail
amount is preventing her from receiving the appropriate mental
health treatment to improve her condition, and that the equities
of the case require her to be granted bail which will allow such
treatment. The defendant argues that the judge's statement that
her treatment providers have not taken steps to restore her
competency is clearly erroneous and that the further steps
needed to do so cannot be realized because of the bail order.
The defendant also argues that the motion was impermissibly
denied solely due to the possibility of a severe sentence or the
seriousness of the alleged crime, which she claims is improper
pursuant to Vasquez v. Commonwealth, 481 Mass. 747, 752 (2019).
The defendant asks that we reverse the single justice order
and direct entry of an order either granting her release on
personal recognizance or to determine a reasonable bail in an
amount within her means to pay.
Discussion. We conclude that the motion judge failed to
adhere to the requirements of Brangan in denying the defendant's
motion and imposing the $250,000 cash bail amount, and that
10 doing so was clear error. Brangan, 477 Mass. at 705-706, makes
clear that dangerousness is not an appropriate consideration in
setting bail. The purpose of bail is to ensure that the
defendant appears for trial. Id. at 699. With respect to
lengthy pretrial detentions due to the defendant's inability to
post the amount of bail set by the judge, Brangan, supra at 707,
requires that the judge provide "findings of fact and a
statement of reasons for the bail decision, either in writing or
orally on the record." The defendant's confinement has
continued for nineteen years, and twelve years since bail was
set at $250,000 cash, so these findings are necessary in this
case.
According to Brangan, 477 Mass. at 707, these findings must
include consideration of the financial situation of the
defendant, and here, there was none. The findings must also
include an articulation of why less restrictive alternatives are
inadequate, id., and, despite their discussion at the
nonevidentiary hearing in this matter, less restrictive
alternatives were not addressed in the judge's order. Brangan,
supra, also requires that the judge explain how the bail amount
was calculated, which the judge did not do. And, again, both
the length of pretrial custody and all the equities must be
considered, which they were not.
11 To be sure, "a judge need only provide sufficient
information to enable the parties and the appellate courts to
recognize that the judge has undertaken the analysis required by
our holding in Brangan and its codification in the bail
statutes" before imposing a bail that is beyond what a defendant
can reasonably afford. Walsh v. Commonwealth, 485 Mass. 567,
582 (2020). But mere discussion of some of these issues during
the hearing with no resultant findings is not adequate. Our
conclusion requires reversal of the single justice order denying
the petition for review, vacatur of the motion judge's bail
order, and a remand to the trial court for a new hearing in
compliance with Brangan and issuance of a new order on the
defendant's motion.1
We note that many of the questions at issue may turn on
factual circumstances. For example, what would be the nature of
DMH supervision of the defendant were she discharged by DMH from
WRCH in order to attend what they deem the appropriate programs?
Can a person involuntarily committed even be placed in such an
open setting? What might the efficacy be of other alternatives?
The single justice order dated October 17, 2022, is reversed.
1 In light of our conclusion, we need not address the defendant's claim under Vasquez. We do not address the defendant's constitutional excessive bail claims under Article XXVI of the Declaration of Rights of the Constitution of Massachusetts, and the Eighth Amendment to the United States Constitution, but it may be considered de novo in the trial court on remand.
12 The petition for review is allowed; the bail order is vacated;
and the case remanded to the Superior Court for further
proceedings consistent with this memorandum and order.2
So ordered.
By the Court (Rubin, Massing & Desmond, JJ.3),
Clerk
Entered: September 25, 2024.
2 We note that because she has now been in pretrial detention for nineteen years and was found in her first trial to be not guilty of murder in the first degree, a different statute may apply here. Under G. L. c. 123, § 16 (f),
"If a person is found incompetent to stand trial, the court shall send notice to the department of correction which shall compute the date of the expiration of the period of time equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received, if so convicted. . . . On the final date of such period, the court shall dismiss the criminal charges against such person, or the court in the interest of justice may dismiss the criminal charges against such person prior to the expiration of such period."
Of course, there may be reasons the defendant or her counsel choose not to proceed along that avenue, something that is not relevant to the instant matter.
3 The panelists are listed in order of seniority.