Commonwealth v. Perkins

981 N.E.2d 630, 464 Mass. 92, 2013 WL 135710, 2013 Mass. LEXIS 5

• Court: Massachusetts Supreme Judicial Court
• Decided: January 14, 2013
• Status: Published

Opinions

Botsford, J.

This case raises the question whether a defendant who is charged initially by complaint with murder in the first degree is entitled to a preliminary or probable cause hearing in the District Court¹ pursuant to the provisions of G. L. c. 276, § 38 (§ 38), and, if so, when the probable cause hearing described in § 38 must be held.² We conclude that § 38 is applicable to such a defendant and provides the defendant with the right to a probable cause hearing as soon as practicable in the circumstances. For the reasons we shall discuss, we decline to adopt a bright-line rule that would require the Commonwealth to conduct the probable cause hearing within thirty days or another definite time frame, but we conclude that because the probable cause hearing is an important stage in a criminal proceeding, the Commonwealth must demonstrate good cause to justify any request by the Commonwealth to continue it.

Background. On May 7, 2010, Cordell McAfee was shot and killed on the front porch of a house in the Dorchester section of Boston.³ On December 20, 2010, a criminal complaint issued against the defendant, charging him with the murder of McAfee and the unlawful carrying of a firearm. The defendant was arrested in Rhode Island on January 18, 2011, and a judge in the Dorchester Division of the Boston Municipal Court Department (District Court; see note 1, supra) arraigned the defendant on the charges on January 21, 2011.

At the defendant’s arraignment, the judge scheduled a probable cause hearing to be held on February 17, 2011. See Mass. R. Crim. R 7 (b) (4), as appearing in 461 Mass. 1502 (2012).⁴ On that date, the prosecutor requested a continuance.⁵ The judge granted the requested continuance and scheduled a second date for the probable cause hearing in thirty days, to be held on March 16, 2011. At the March 16 hearing, the prosecutor requested another thirty-day continuance with an explanation that the Commonwealth needed additional time to obtain deoxy-ribonucleic acid evidence; she asked for a probable cause hearing date of April 15, 2011. Over objection of the defendant, the judge granted the requested continuance and rescheduled the probable cause hearing for April 15. On March 16 as well, the defendant filed a motion to dismiss or for release, arguing that the successive continuances of the probable cause hearing violated his liberty interests, given that he remained in custody during these delays. The judge denied the motion.

Thereafter, on March 24, 2011, the defendant filed a petition in the county court pursuant to G. L. c. 211, § 3, seeking an order that a probable cause hearing be held in the District Court as soon as possible and not later than April 15, 2011, and requesting in the alternative that the single justice dismiss the pending complaint against the defendant. Before the defendant’s petition was heard by the single justice, at the scheduled April 15 hearing in the District Court, the prosecutor requested another continuance. She argued that, due to delays reaching the witnesses, the Commonwealth was unable to complete the grand jury investigation, and she stated that the grand jury was scheduled to meet again on May 6, 2011. The defendant again objected to a continuance, and filed a renewed motion to dismiss. The judge granted the Commonwealth’s requested continuance and denied the defendant’s motion to dismiss, setting May 9, 2011, as the next date for the probable cause hearing. The grand jury returned an indictment on May 7, 2011, charging the defendant with murder in the first degree. The probable cause hearing in the District Court never took place.⁶

Before the indictment was returned, the single justice heard the defendant’s c. 211, § 3, petition on April 26, 2011, and on May 9, 2011, issued a memorandum of decision denying the requested relief.⁷ 8The defendant filed a timely appeal.

Discussion. 1. Mootness. As the defendant has been indicted and does not suggest that he would be entitled at this point either to a probable cause hearing or dismissal of the indictment, his petition for relief under G. L. c. 211, § 3, is moot. However, it is within the discretion of this court to answer questions that, due to circumstances, no longer may have direct significance to the parties but raise issues of public importance and, because of their nature, may be “capable of repetition, yet evading review.” See Lockhart v. Attorney Gen., 390 Mass. 780, 782-783 (1984), quoting Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298 (1975), and cases cited. Cf. Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943).

Whether a person charged and held on a District Court complaint for murder in the first degree is entitled to a probable cause hearing in the District Court and, if so, the timing of such a hearing and the relationship between a person’s right to that hearing and the Commonwealth’s right to initiate grand jury proceedings are issues that implicate the liberty interests of all defendants who are so situated, and more generally are significant for the proper administration of the criminal justice system. These issues have been briefed fully by the parties, and we will consider them.

2. Probable cause hearings for defendants held on a complaint of murder, a. Introduction. It is useful to set out the text of the two statutes that give rise to the issues just summarized.

General Laws c. 276, § 38, provides:

“The court or justice1⁸1 before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. After the testimony to support the prosecution, the witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution. Nothing contained herein shall be construed to prohibit the enforcement of the waiver provisions of Rule 3 of the Massachusetts Rules of Criminal Procedure. A defendant charged with an offense as to which he has the right to be proceeded against by indictment may elect a probable cause hearing in accordance with Rule 3 of the Massachusetts Rules of Criminal Procedure, but in such event shall be deemed to have waived his right to be proceeded against by indictment.” (Emphasis added.)

General Laws c. 263, § 4A (§ 4A), provides in relevant part:

“A defendant charged in the district court with an offense as to which he has the right to be proceeded against by indictment shall have the right, except when the offense charged is a capital crime,9 to waive that right, whereupon the court shall have as full jurisdiction of the complaint as if an indictment had been found. If a defendant is so charged and requests a probable cause hearing in district court, that request shall constitute a waiver of the right to be proceeded against by indictment and the prosecution may proceed upon the complaint. If a defendant waives the right to be proceeded against by indictment, a probable cause hearing shall be held in the district court unless the defendant waives the probable cause hearing or unless the prosecutor elects to proceed by indictment pursuant to the Massachusetts Rules of Criminal Procedure.” (Emphasis added.)

The single justice implicitly determined that § 38, with its provision for a probable cause hearing in the District Court, applied to the defendant. However, the single justice concluded that a District Court judge maintains discretion to continue a scheduled probable cause hearing, and he found no abuse of discretion in the continuances granted by the District Court judge in the defendant’s case.

The defendant argues that the single justice committed an error of law in denying the defendant’s request for an immediate probable cause hearing or dismissal of the District Court complaint. He contends that § 38 protects a defendant who is charged in the District Court but subject to being bound over to the Superior Court from being held in custody without a neutral assessment, within a short time after the prosecution actually begins, of whether there is probable cause to support the charges against him.¹⁰ In particular, the defendant points to § 3 8 ’ s requirement that a judge conduct a probable cause hearing to review the charges “as soon as may be,” a time frame that he argues should be no more than thirty days from the date of arraignment. He views a limit of thirty days as consistent with (1) Mass. R. Crim. R 7 (b) (4), as appearing in 461 Mass. 1501 (2012) (see note 4, supra), directing a District Court judge to schedule a probable cause hearing at the time of arraignment on any complaint that is beyond the jurisdiction of that court; and (2) G. L. c. 276, § 35, which prohibits at any one time the continuance beyond thirty days of any hearing or trial in the District Court involving a defendant held in custody. He contends that if any continuance beyond thirty days is permissible, it must only be in “exceptional circumstances” that do not include scheduling or completing grand jury presentations.

The Commonwealth, on the other hand, asserts that a defendant charged with murder in the first degree has no right to a probable cause hearing under § 38. The argument is that under both §§ 4A and 38, the right to a probable cause hearing only exists for a defendant who is authorized to, and does, waive his right to an indictment and elects in its stead a probable cause hearing; and that because under § 4A, a defendant charged with murder in the first degree is expressly prohibited from making such a waiver, he has no corresponding right to a probable cause hearing. We consider first the Commonwealth’s claim.¹¹

b. Availability of probable cause hearings to defendants charged by complaint with murder in the first degree. Considering § 38 and § 4A together, we conclude that the Commonwealth’s argument lacks merit. Section 38 by its terms provides for a probable cause hearing in cases where a defendant is charged with a crime in the District Court that lies beyond the jurisdiction of that court and for which the defendant is entitled to be proceeded against by indictment. See Corey v. Commonwealth, 364 Mass. 137, 140-141 (1973) (Corey); Myers v. Commonwealth, 363 Mass. 843, 846-847, 857 (1973) (Myers). See also Lataille v. District Court of E. Hampden, 366 Mass. 525, 528-529 (1974) (Lataille). In providing this statutory right, § 38 makes no distinction between a charge of murder in the first degree and any other crime, and indeed makes no mention of murder or a “capital crime” at all. It is true that the final two sentences of § 38, added in 1985, see St. 1985, c. 256, reference the waiver provisions of Mass. R. Crim. R 3 as then in ef-feet, see 378 Mass. 847 (1979),¹² and specifically state that any election of a probable cause hearing in accordance with rule 3 operates as a waiver of the right to be proceeded against by indictment. But the same version of rule 3 also provided that a defendant charged with murder in the first degree (i.e., a “capital crime”) was not permitted to waive indictment. Mass. R. Crim. R 3 (b) (2), as appearing in 378 Mass. 847.¹³ Accordingly, we read the waiver mandate added to § 38 in 1985 as simply inapplicable to a defendant in the position of the defendant here, i.e., a defendant charged with murder in the first degree; just as such a defendant was covered by and entitled to a probable cause hearing under the general terms of § 38 before 1985, he remained so thereafter.

Section 4A in relevant part essentially tracks the same waiver provisions that were incorporated into the original version of Mass. R. Crim. P. 3 and added by reference to § 38 in 1985.¹⁴ Thus, § 4A requires a defendant who is charged in the District Court with an offense for which he has a right to be proceeded against by indictment, other than murder in the first degree, to waive the indictment right in order to obtain a probable cause hearing in the District Court. Because the defendant here is charged with murder in the first degree, the waiver provision in § 4A is irrelevant and does not infringe on his independent right to a probable cause hearing under § 38.¹⁵

Both before and after the 1979 amendment to § 4A (see note 14, supra), this court consistently has interpreted § 38 and its probable cause hearing requirement to apply to defendants charged with murder in the first degree. See, e.g., Commonwealth v. Daye, 435 Mass. 463, 468-470 (2001); Commonwealth v. Fisher, 433 Mass. 340, 347 (2001); Commonwealth v. Santos, 402 Mass. 775, 786 (1988); Commonwealth v. Spann, 383 Mass. 142, 145 (1981); Lataille, 366 Mass, at 530-531. The Commonwealth’s argument here does not persuade us to alter this established interpretation of § 38. We conclude, therefore, that while the defendant remained in custody pursuant to a District Court complaint for murder, § 38 applied to him and provided him with the right to a probable cause hearing in accordance with its terms.¹⁶ We therefore turn to § 38 to examine those terms.

c. Timing of the probable cause hearing under G. L. c. 276, § 38. As the Myers and Corey cases describe, probable cause hearings protect significant liberty interests of defendants who ultimately will be tried in the Superior Court. See Corey, 364 Mass, at 141; Myers, 363 Mass, at 847. The defendant points to these two cases as supporting, if not compelling, the conclusion that under § 38 he was entitled to a probable cause hearing in short order following his arraignment.¹⁷ But in both Myers and Corey, the defendants actually received probable cause hearings, and the court’s focus was solely on the manner in which those hearings had been conducted; there was no issue raised in either case about what is central to the defendant’s concerns here, namely, the timing of the probable cause hearing and the relationship between the timing of the hearing and the initiation of grand jury proceedings by the Commonwealth for the purpose of obtaining an indictment.

Section 38 directs that the probable cause hearing occur “as soon as may be” after arraignment, and this phrase must be interpreted in a manner consistent with the legislative purpose of that statute. See District Attorney for the N. Dist. v. School Comm. of Wayland, 455 Mass. 561, 568 569 (2009), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 514 (1975). In Myers, 363 Mass, at 847, and Corey, 364 Mass, at 141, this court stated that the “primary function” of the § 38 probable cause hearing is to “screen out at this early but critical stage of the criminal process those cases that should not go to trial, thereby sparing individuals from being held for trial, and from being unjustifiably prosecuted.” Myers, supra. See Corey, supra at 140-142. The dual requirements that defendants may only be held for trial where the magistrate determines that (1) a crime has been committed, and (2) there is probable cause to believe a defendant guilty of the crime charged, see G. L. c. 276, § 42, create “an effective bind-over standard” to eliminate groundless charges that should not go to trial. Corey, supra at 141. Myers, supra.

As set out in Myers, to establish probable cause under § 38, the Commonwealth must present sufficient credible evidence to meet the directed verdict standard, that is, “whether there is enough credible evidence to send the case to the jury.” Myers, 363 Mass, at 850. See generally id. at 848-850. Meeting this standard requires the presentation of substantially more evidence than is necessary in most cases for an indictment.¹⁸ Practically speaking, therefore, “as soon as may be” must be interpreted in a manner that affords the Commonwealth enough time reasonably to marshal and present the quantity and quality of evidence that is necessary to meet the probable cause hearing’s heightened probable cause standard. Interpreting the phrase as the defendant suggests, that is, by imposing a rigid thirty-day requirement in which the Commonwealth must be prepared to establish probable cause, would not meet this need.

What we have just stated about the meaning of “as soon as may be” is based on a consideration of the nature of the § 38 probable cause hearing. However, as § 38 expressly reflects, there are crimes for which a defendant has a right, constitutionally protected, to be proceeded against by indictment. Furthermore, as recognized by statute and court rule, the Commonwealth may elect to proceed by indictment even if the defendant would be willing to waive the right. See G. L. c. 263, § 4A; Mass. R. Crim. R 3 (e), as appearing in 442 Mass. 1502 (2004). We have recognized that an indictment offers an “alternative means [to a probable cause hearing] for establishing probable cause to hold a defendant for trial.” Lataille, 366 Mass, at 530-531.¹⁹ Given that a defendant and the Commonwealth each have a right respectively to be charged and to charge by indictment, it makes sense to construe the phrase “as soon as may be” in § 38 with the indictment alternative in mind; indeed, it is especially appropriate to do so in a case such as this, where, because the charge is murder in the first degree, the Commonwealth is required to proceed by indictment and the defendant cannot waive it. G. L. c. 263, § 4A.

In sum, we conclude that the phrase “as soon as may be” in § 38 is best interpreted to mean that the probable cause hearing is to be held as soon as reasonably practicable in the circumstances presented — circumstances that may include, as here, the requirement that the Commonwealth proceed by indictment or, in a noncapital case, the election of the Commonwealth to do so. The phrase cannot be defined, as the defendant would have it, by establishing in advance a fixed number of days within which the hearing must be held, because the particular circumstances of each case will be different.²⁰

In construing the phrase “as soon as may be” in this manner, we do not intend to suggest that a judge is free to continue a scheduled probable cause hearing as a matter of course or simply based on a prosecutor’s statement that the Commonwealth needs more time. The important purpose of the § 38 probable cause hearing — to prevent the defendant from being held for trial on a groundless or unmeritorious charge, see Corey, 364 Mass, at 141; Myers, 363 Mass, at 847 — remains a central consideration. The Commonwealth is not entitled to proceed at whatever pace it might choose, either in marshaling evidence to establish probable cause for the probable cause hearing or in presenting a case to the grand jury in order to secure an indictment. And a judge may not simply rubber stamp a Commonwealth’s request for a continuance. Rather, if the Commonwealth seeks to continue the probable cause hearing beyond the date scheduled at arraignment or thereafter, the judge’s responsibility is to make a meaningful inquiry into the specific reasons for the request, and to consider whether the Commonwealth has shown good cause for it. An active, ongoing grand jury investigation should be considered as a factor, but an ongoing grand jury investigation, taken by itself, is not necessarily sufficient to demonstrate good cause; among other factors, the amount of time the defendant has been held in custody and the time that has elapsed since arraignment should be weighed. Finally, in light of the bright-line rule set out in G. L. c. 276, § 35,²¹ where a defendant is being held in custody, any one continuance of the probable cause hearing may not exceed thirty days.

If the Commonwealth does not provide good cause for a continuance, as the single justice suggested, the judge should consider directing the Commonwealth to proceed with the probable cause hearing; alternatively, the judge might dismiss the complaint or at least consider bail. A dismissal, of course, “is not a bar to a subsequent indictment for the same offence.” Burke v. Commonwealth, 373 Mass. 157, 159 (1977), quoting Commonwealth v. Hamilton, 129 Mass. 479, 481 (1880). Commonwealth v. Britt, 362 Mass. 325, 330 (1972). See Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 471-472, cert. denied sub nom. Pirrotta v. Massachusetts, 479 U.S. 838 (1986) (nolle prosequi of complaint does not ordinarily bar indictment).

Returning to the decision of the single justice, we conclude that he did not abuse his discretion or commit other error of law in denying the relief sought by the defendant. The single justice appeared to consider the existence of an ongoing grand jury investigation as perhaps a principal factor that would justify a continuance of the probable cause hearing, but he set out other important factors to consider in addition.²²

Conclusion. The defendant’s appeal is dismissed as moot.

So ordered.

1 In the present case, the complaint issued from the Boston Municipal Court Department. In this opinion, we refer to the Boston Municipal Court Department and the District Court Department collectively as the District Court.

2 The hearing conducted by a judge in the District Court pursuant to G. L. c. 276, §§ 38-42, to determine whether there is probable cause to hold a defendant who has been charged with a crime beyond the jurisdiction of the District Court for trial in the Superior Court is sometimes referred to as a “preliminary hearing.” See Lataille v. District Court of E. Hampden, 366 Mass. 525, 528 (1974) (Lataille). However, the parties as well as some statutes and court rules use the term “probable cause” hearing, see, e.g., G. L. c. 263, § 4A (§ 4A); Mass. R. Crim. R 3, as appearing in 442 Mass. 1502 (2004), and we do as well in this opinion. The meaning of the two terms is the same, and they often are used interchangeably. See, e.g., Myers v. Commonwealth, 363 Mass. 843, 844, 845-847, 851-852 (1973) (Myers).

3 The facts of the underlying homicide investigation and case are not directly relevant to this appeal.

4 Effective June 1, 2012, this court amended Mass. R. Crim. P. 7. See 461 Mass. 1501 (2012). As amended, rule 7 (b) (4) currently provides in relevant part that “[a]t a District Court arraignment on a complaint which is outside of the District Court’s final jurisdiction or on which jurisdiction is declined, the court shall schedule the case for a probable cause hearing.” This same language previously was included in Mass. R. Crim. P. 7 (e), as appearing in 442 Mass. 1506 (2004). Because the substance of the rule has not changed, we refer to the current version of rule 7 in this opinion.

5 On March 16, 2011, the second scheduled date for the probable cause hearing, the Commonwealth summarized what had occurred at the hearing on February 17: “I appeared on that date before the court and reported that it was my hope that by this date, March 16, that we would either have the case indicted or be very close to that.”

6 The Commonwealth nol pressed the complaint on May 12, 2011.

7 There is no indication in his memorandum of decision or otherwise in the record that the single justice was aware that the defendant had been indicted on May 6, 2011.

8 The reference is to the District Court or a judge in the District Court.

9 As originally enacted, § 4A read that all persons bound over “for trial in superior court upon a complaint charging a crime not punishable by death” may waive indictment. St. 1934, c. 358. After abolition of the death penalty, the Legislature defined a “capital case” for the purpose of review by the Supreme Judicial Court as “a case in which the defendant was tried on an indictment for murder in the first degree and was convicted of murder in the first degree.” G. L. c. 278, § 33E, as amended through St. 1979, c. 346, § 2. See Commonwealth v. O’Brien, 371 Mass. 605, 606 (1976). Section 4A currently grants a defendant the right to waive indictment, “except when the offense charged is a capital crime.” G. L. c. 263, § 4A, as amended by St. 1979, c. 344, § 18. “Capital crime” thus refers to a charge of murder in the first degree. See Commonwealth v. Francis, 450 Mass. 132, 136 (2007); Mass. R. Crim. P. 2 (b) (3), 378 Mass. 844 (1979).

10 As a general matter, G. L. c. 276, § 38 (§ 38), with its provision for a probable cause hearing, applies to criminal cases initiated in the District Court where (1) that court does not have final jurisdiction over the crime or crimes charged, and binds the defendant over for indictment and trial in the Superior Court; and (2) the District Court, although possessing final jurisdiction concurrent with the Superior Court, declines to exercise it and again binds the defendant over. See Lataille, 366 Mass, at 528.

11 The Commonwealth did not present its statutory argument based on § 4A to the single justice, and therefore, the defendant asserts, the Commonwealth should be foreclosed from raising it here. As indicated previously, the issues raised here are significant to the operation of the criminal justice system. We decline to apply a strict waiver rule in this instance, and we consider the merits of the Commonwealth’s claim.

12 Rule 3 of the Massachusetts Rules of Criminal Procedure, as appearing in 378 Mass. 847 (1979), and as in effect when § 38 was amended in 1985, contained a mandatory or “forced waiver” provision: “if a defendant is charged in the District Court with a crime as to which he has the right to be proceeded against by indictment and requests a probable cause hearing, that request shall constitute a waiver of the right to be proceeded against by indictment and the Commonwealth may proceed upon the complaint.” Mass. R. Crim. P. 3 (a). Rule 3 has since been amended. See note 13, infra.

13 Rule 3 continues to provide that a defendant charged with a capital crime does not have the right to waive indictment. Mass. R. Crim. R 3 (c) (1), as appearing in 442 Mass. 1502 (2004).

Although of no direct relevance here, it is worth noting that the “forced waiver” provision of Mass. R. Crim. R 3 (a), as appearing in 378 Mass. 847 (1979), was removed from rule 3 in 2004. See Mass. R. Crim. P. 3, as appearing in 442 Mass. 1502; Reporter’s Notes to Rule 3, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1340 (LexisNexis 2012-2013). The removal was prompted by concerns that a forced election between indictment and a probable cause hearing for a defendant charged in the District Court with a noncapital felony may “infringe on a defendant’s constitutional right to indictment and statutory right to a probable cause hearing.” Id.

14 The language in § 4A specifically linking the right to a probable cause hearing with waiver of the right to indictment was added to the statute in 1979, as part of a general effort to conform certain statutes to the then-new rules of criminal procedure. See St. 1979, c. 344, § 18. Before the 1979 amendment, § 4A contained no mention of probable cause hearings and simply provided for the possibility that a defendant who was bound over to the Superior Court for trial and charged with a crime, again other than murder in the first degree, could waive indictment and thereby secure for himself the right to prompt arraignment in the Superior Court. See G. L. c. 263, § 4A, as inserted by St. 1934, c. 358.

15 The current version of Mass. R. Crim. P. 3 may be inconsistent with the waiver provisions in both § 4A and § 38, insofar as the current rale provides that a defendant may elect to waive the right to be proceeded against by indictment, and then separately entitles all defendants charged with an offense to which they have a right to be proceeded against by indictment to a probable cause hearing “unless an indictment has been returned for the same offense” (emphasis added). Mass. R. Crim. P. 3 (c), (f), as appearing in 442 Mass. 1502 (2004). We need not resolve any possible conflict between the statutes and rale here, however, because as indicated in the text, neither § 4A nor the waiver provisions at the end of § 38 apply to defendants initially charged in a complaint with murder in the first degree.

16 A final point on this subject: as we discuss in the following section, the purpose of § 38 is to ensure that a defendant who will be bound over for indictment and trial in the Superior Court is not held in custody awaiting a grand jury indictment or trial without a demonstration of probable cause that he committed the crime charged. The Commonwealth fails to offer any reason why defendants charged with murder in the first degree, in contrast to any other felony, are not entitled to this protection.

17 Indeed, because of the importance of those interests, the court in Myers concluded that it was appropriate in a probable cause hearing to apply the same standard to the evaluation of probable cause as governs a motion for a directed verdict at trial, a standard that is more substantially rigorous than the standard of probable cause for arrest. Myers, 363 Mass. at 850. We return to this issue infra.

18 Compare Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (to indict, “at the very least the grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to arrest him” [citations omitted]). See Commonwealth v. Moran, 453 Mass. 880, 884, 886-887 (2009) (grand jury must hear evidence on each element of crime for which indictment is sought, but standard is whether evidence is sufficient to establish probable cause to arrest). See also Commonwealth v. Roman, 414 Mass. 642, 647 (1993) (“grand jury did not need evidence warranting a finding of the defendant’s guilt beyond a reasonable doubt. It needed only evidence establishing probable cause to arrest”).

19 In Lataille, 366 Mass, at 531, we stated:

“Where probable cause is to be determined by a [probable cause] hearing on a complaint in the District Court the panoply of defensive procedures announced in the Corey and Myers cases applies. However, in the context of grand jury proceedings, the return of an indictment is itself a determination of probable cause and renders unnecessary a [probable cause] hearing.

“To hold otherwise would be to undermine the function traditionally performed by the grand jury ....

“On the contrary, the grand jury is an institution preserved by the Constitution of this State. . . . Accordingly, the grand jury has long been regarded as an important part of our criminal procedure.” (Footnotes and citations omitted.)

20 The defendant cites a number of decisions of this court that define the term “forthwith” or the phrase “as soon as may be,” as they appear in various statutes, to mean, essentially, with promptness and due diligence. See Commonwealth v. Bouchard, 347 Mass. 418, 420 (1964); Crawford v. Roloson, 254 Mass. 163, 167 (1925); Griffin v. Griffin, 222 Mass. 218, 219 (1915). These cases, however, also emphasize that the phrase imports a concept of reasonableness — that is, what is reasonably prompt in the circumstances. See Tambrands, Inc. v. Commissioner of Revenue, 46 Mass. App. Ct. 522, 527 (1999) (“attendant circumstances need to be considered”). The interpretation we give to “as soon as may be” in § 38 is consistent with these cases.

21 General Laws c. 276, § 35, read in conjunction with St. 1993, c. 110, § 271, provides in relevant part:

“The court or justice may adjourn an examination or trial from time to time .... In the meantime, if the defendant is charged with a crime that is not bailable, he shall be committed; otherwise, he may recognize in a sum ... for his appearance for such examination or trial, or for want of such recognizance he shall be committed. While the defendant remains committed, no adjournment shall exceed thirty days at any one time against the objection of the defendant” (emphasis added).

22 The single justice listed the following factors: “the length of time the defendant has been held since his arrest, whether the grand jury are actively hearing evidence, the need to protect grand jury secrecy (and the witnesses who may be called there) from exposure and intimidation, reasonable delays occasioned by the need to obtain the results necessary to the grand jury’s consideration of the matter, the showing of harm or lack of harm occasioned by the delay, and the over-all proper and timely administration of justice.” We agree that these are appropriate considerations to weigh in considering a request to continue the probable cause hearing.