Preston v. Commonwealth

May 7, 1984
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The petitioner appeals a single justice’s denial of his petition for review of bail. We affirm.

In January, 1983, the petitioner was arrested and charged with murder. Bail was set in the amount of $1,000,000. The petitioner’s motion for reduction of bail was denied. The petitioner was subsequently indicted for murder.

In September, 1983, the petitioner was tried. The jury returned a verdict of murder in the second degree. The trial judge ordered a new trial, pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), and gave no reasons therefor. The Commonwealth’s appeal of that order is now pending before the Appeals Court.

Upon ordering a new trial, the judge denied the petitioner’s oral motion for a reduction of bail. After the Commonwealth filed its notice of appeal the petitioner again moved for a reduction of bail. A judge of the Superior Court (not the trial judge) denied the motion. The petitioner then petitioned the county court for a review of bail. The single justice denied the petition.

Our review of the single justice’s decision is limited to correcting errors of law and abuse of discretion. Commesso v. Commonwealth, 369 Mass. 368, 376 (1975). The petitioner is charged with a serious crime punishable by life imprisonment. He has an extensive criminal record, including convictions for illegal drug distribution; he has a history of default; he has attempted to conceal his identity. See G. L. c. 276, § 58. Even if we assume that the Commonwealth’s appeal of the order for a new trial, which will have the effect of prolonging the petitioner’s prejudgment incarceration, amounts to a change of circumstances warranting a reconsideration of bail, he was not necessarily entitled to a reduction. There was no error of law or abuse of discretion.

Judgment affirmed.