Com v. Gomez

Commonwealth v. Yohan Gomez
Massachusetts Appeals Court
January 11, 2011

Docket No: 09-P-1938

Bail, Default, Forfeiture

While released on bail and during his jury trial, police arrested defendant for an unrelated offense and detained him.  Defendant was unable to appear in trial court due to this police custody and defaulted at trial.  Defendant appeals the trial judge’s order forfeiting the bail.  The Appeals Court reversed under these circumstances. 

Facts

The Commonwealth indicted the defendant in December 2007 and after reducing the bail to $25,000 cash, the defendant paid his own bail and as such, no surety was involved.  On July 21, 2009, the court impaneled the jury for the defendant’s case but it was not to begin until the next day.  Since the defendant was still out on bail, the court expected him to return the next morning.  That evening police arrested the defendant on unrelated drug-related crimes and held him overnight in connection with the alleged crimes.

The next morning the defendant missed his trial from the previous day because police transported him to the District Court for arraignment on the new drug charges.  Over the defendant’s legal counsel’s objection, the trial judge issued a warrant to secure the defendant’s expedited transfer to Superior Court that day.  The defendant arrived later in the day after the judge dismissed the jurors for the day.  Trial began the next day and when the issue of forfeiture arose, both parties thought that forfeiture was inappropriate in these circumstances.  The trial judge found that the defendant willfully set into motion the events that made him miss his trial and therefore, found the bail to be forfeited.

Issue:  Can a judge order the forfeiture of bail when the principal defaults because he is being held in Commonwealth custody on a separate charge?

The Appeals Court first determined that the use of the word “bail” in G.L. c. 276, § 70 is meant to also apply to sureties and recognizance because such an interpretation is consistent with the general proposition present in the statute.  Using the same logic, the court determined that G.L. c. 276, § 71 informs and supports the conclusion that judicial discretion is involved in determining whether to issue a default or forfeit of bail.  Even in default, a judge may remove the default for “good cause” (G.L. c. 276, § 36), “remit the whole or any part of the penalty” (G.L. c. 276, § 69) or “render judgment for part of the face amount of the bonds” (G.L. c. 276, § 4).  Therefore, regardless of who posts bail, forfeiture is not appropriate when defendants are unable to appear in court due to being held in government custody.  The court made it clear, however, that this holding does not preclude the revocation of bail in appropriate circumstances.

Turning to the facts of this case, the Appeals Court looked at all the circumstances and determined that the forfeiture of bail in this situation was not appropriate.  Most important to the court’s analysis is the timely manner in which the judge was informed of the problem and the steps taken to get the defendant to his trial, the fact that the defendant’s default was a tool used to expedite the defendant from District to Superior Court, that both parties agreed at trial that forfeiture was inappropriate, and the failure of the trial judge to inquire as to the facts of circumstances with regards to the new drug crime to see if there was any actual connection between the defendant and the new crime.  Due to these specific circumstances, the forfeiture of the bail was inappropriate and the Appeals Court reversed the order of bail forfeiture.

Judgment overruled and the order of bail forfeiture reversed.

Prepared by AAO