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Commonwealth of Massachusetts v. Daniel Tavares

Bail review hearing for Daniel Tavares

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November 27, 2007

COMMONWEALTH OF MASSACHUSETTS
Worcester, ss.
Superior Court
Criminal Action
No. 07-1514
BAIL REVIEW HEARING
BEFORE: TUTTMAN, J.
A P P E A R A N C E S:
ON BEHALF OF THE COMMONWEALTH:
Office of the District Attorney
225 Main Street
Worcester, Massachusetts 01608

BY: WILLIAM E. LOUGHLIN, ADA
ON BEHALF OF THE DEFENDANT:
Burwick & Dynice
14 Monument Square, Number 305
Leominster, Massachusetts 01453
BY: BARRY P. DYNICE, ESQ.

Worcester Superior Court
Worcester, Massachusetts
July 16, 2007

Jennifer Witaszek, CVR
Official Court Reporter
(508) 831-2319
(Court in session.)
(Defendant present with counsel.)

THE CLERK: Daniel Tavares.

MR. DYNICE: Good afternoon, your Honor.

THE COURT: Good afternoon, Mr. Dynice. Let me just take a moment to review this.

(There was a pause in the proceedings.)

THE COURT: Go ahead, please, Mr. Dynice.

MR. DYNICE: Thank you, your Honor. Mr. Tavares is presently held on a $50,000 cash bail order that was issued out of the Clinton District Court relative to two separate complaints that were sought in that court alleging activities while an inmate at the Souza-Baranowski Correctional Center.

Well, as you can see by looking at the probation record, he has finished serving a sentence for manslaughter.

And although there is a, I believe, three-page record relative to his criminal history, you will note that there is not a single default on his record, your Honor.

And I would ask the Court to pay particular attention to the fact that the offenses that are alleged in these two separate complaints, one of them is alleged to have occurred on December 1st of 2005, your Honor. The second one is alleged to have taken place February 27th of 2006.

THE COURT: Why are these complaints just being issued now, Mr. Dynice?

MR. DYNICE: Because Mr. Tavares was scheduled to be released, having completed the service of his sentence on the manslaughter charge. And on June 7th, the Baranowski officials for the first time referred both matters to the district attorney's office seeking criminal complaints, your Honor.

They have taken interdepartmental disciplinary action against Mr. Tavares on both of these complaints. They took away good time from him. They refused him videotapes that would show in fact that on one of these dates, the December 1st date when he was in fact in a cast due to injuries caused to him by the same prison guards for which there is a pending federal civil rights violation case, that he would have videotape to show that in fact he was assaulted, he was brought to the ground, and that tape has suddenly disappeared.

I represent him in the District Court in Clinton, your Honor, as assigned counsel, and his matters are scheduled for Monday, a week from today, for conference on these cases.

What is happening is that the Baranowski people are asking the district attorney's office to become complicit in a situation where they continue to keep Mr. Tavares incarcerated, therefore imposing severe restrictions on his ability to defend these cases.

He is a person who by statute, your Honor, is entitled to personal recognizance. The government has no evidence to suggest that he is a risk not to appear in court when he's supposed to be. He has pending litigation with counsel in Boston. He is finished serving his time.

And the Baranowski people are saying, We'd like to keep him here for however long it may take for these cases to resolve.

THE COURT: Has he wrapped his sentence?

MR. DYNICE: He has wrapped his sentence as of June 14th, your Honor. And what they're saying is we've known about this. Whether the allegations are true or false, we have sat on these for two years and done nothing to refer them to the district attorney.

And I don't think it's a coincidence in any way to suggest that shortly, within three days of his wrap date, they seek two complaints on cases this old. And if you look at the nature of the allegations, one of them alleges that he spit on a guard.

THE COURT: Yes.

MR. DYNICE: That guard has since been transferred out of the facility and may not even be available as a witness, in part because of his consistent record of inappropriate actions as a guard. This is Mr. Atter, your Honor.

The second set of complaints or the earliest one, as I said, medical records within the facility, which will be requested, will confirm that on the date he's alleged to have assaulted the guard, he had just returned from the hospital having had a surgical procedure to remove steel pins from his wrist, and quite candidly, was medicated and barely capable of walking when it's alleged he committed this act of assault.

This is all information they don't want anybody to know about, yet they filed these complaints opening the door to this discovery issue. But they want him to stay with them for however long it takes to resolve these matters. It's not appropriate.

He's a candidate, is entitled to personal recognizance. He has indicated to me that he has family living in Dighton, which is in Worcester County. He has a sister he can live with there.

He is a certified welder. He's 41 years old, your Honor, with a 24-year-old adult daughter. He has a fiancee who I've corresponded with who lives in Washington state.

He's received his GED, your Honor, and would agree to be on pretrial probation. He has requested that he be placed on some kind of monitoring system if there's a concern about this.

But he has every reason to be in court whenever he's supposed to be. What will be interesting is to see how cooperative the Baranowski facility is and whether these alleged victims ever appear in court, your Honor.

THE COURT: Mr. Dynice, what's the potential penalty that he faces on the new charges?

MR. DYNICE: Your Honor, if he continues to be charged with the present charge of assault and battery on a corrections officer, it would have to go to the grand jury to then be transferred to the Superior Court, as the District Court doesn't have final --

THE COURT: There's no jurisdiction.

MR. DYNICE: -- jurisdiction.

THE COURT: What's the sentencing range?

MR. DYNICE: It's ten years, maximum ten years on and after whatever sentence he's presently serving, which right now is not a sentence he's serving.

THE COURT: Is not a sentence at all.

And he has a place to live?

MR. DYNICE: He does, your Honor.

THE COURT: Does he have employment?

MR. DYNICE: He has employment available to him as a welder, your Honor.

THE COURT: Did you want to say something, Mr. Loughlin?

MR. LOUGHLIN: Yes, your Honor. I suggest that counsel's subscribing theories that, I'd suggest, are just theories at this point.

The fact of the matter is, your Honor, that the defendant, even though these crimes occurred earlier in his incarceration, it's a situation where, your Honor, any sentence he would have would have to be served from and after the sentence he was serving.

So the fact that these were brought near the end of his sentence actually helps him because it allows him to accumulate credit towards any possible sentence, where it wouldn't have been if they were brought earlier.

I mean, your Honor, counsel's suggesting conspiracy theories. And, your Honor, I'd suggest we have no proof of that at this point except for the defendant's word.

He obviously has a history of violence, your Honor. Not only did he just finish a manslaughter sentence, your Honor, but he also, I believe, had an armed -- he had a robbery charge and he had an assault charge, your Honor.

So he has a history of crimes of violence, and he committed crimes of violence while he was even serving a crime of violence.

I'd suggest a -- high cash bails are needed to secure his appearance, your Honor. I believe we have two separate $50,000 cash bails, one on each of the incidents, and I'd ask that those bails stay the same.

MR. DYNICE: Your Honor, if I could address one point?

THE COURT: Yes, Mr. Dynice.

MR. DYNICE: If Baranowski was in fact looking to do what was best for my client, then why eliminate over 180 days of good time he'd accumulated as a result of one of the DDU hearings that took place on this and then sit and do nothing?

It's not a conspiracy theory issue, your Honor. It's that there is factual information that will come out, and as you well know, the issue before the Court today is will he appear in court.

The district attorney's office may choose to conduct a dangerousness hearing, if that's what they're talking about, but they're not presenting that.

It's simply what ties to the community, what likelihood is his appearance, and what history is there before you to suggest that he's a risk. And there isn't a single default on any aspect of his record, your Honor, including while on probation, your Honor.

THE COURT: All right. I'm going to release him on personal recognizance on conditions of pretrial probation.

As I understand it, Mr. Dynice, the defendant is amenable to conditions. Those conditions, if he agrees to them, would include that he reside with the sister with whom he has indicated he is going to reside; that he maintain employment; that he report telephonically three times a week to the Probation Department to confirm his employment and his residence.

And are there any other conditions that you recommend, Counsel?

MR. DYNICE: No, your Honor. My only question is I'm assuming that would be through the Probation Department here in Worcester Superior Court?

THE COURT: It would be through the Probation Department in the District Court where the charges are pending, I believe.

Is that correct, Probation? He's being released on conditions of pretrial probation. His present charges are out of the Clinton District Court.

MS. ORAWSKY: We would return supervision to Clinton.

THE COURT: Clinton District Court. Thank you.

MR. LOUGHLIN: Your Honor, may I suggest --

THE COURT: Yes, Mr. Loughlin?

MR. LOUGHLIN: May I suggest some sort of like ELMO or GPS, your Honor? This defendant has a significant history of violence.

THE COURT: He does, Mr. Loughlin, but -- Mr. Dynice, Mr. Loughlin has suggested a bracelet.

It is the Court's view that Mr. Tavares has wrapped his sentence on the underlying offense. He doesn't have a history of any defaults on his record. And there is no indication before the Court based on the representations of counsel and the record before me that he is a risk of flight, other than the nature and circumstances of the charges.

And in light of what I've heard and the age of the charges and the circumstances surrounding his civil case, as well, the Court is not of the view that this defendant poses a flight risk at this juncture.

So thank you, Mr. Loughlin.

MR. LOUGHLIN: Thank you, your Honor.

THE COURT: The Court considers but will not impose any further conditions of pretrial release.

MR. DYNICE: Thank you, your Honor.

MR. LOUGHLIN: Thank you, your Honor.

(End of hearing.)



C E R T I F I C A T E



COMMONWEALTH OF MASSACHUSETTS

I, Jennifer Witaszek, official court reporter in and for the Commonwealth of Massachusetts, hereby certify:



That the foregoing is a verbatim transcript, prepared by me, of a bail review hearing in the matter of Commonwealth v. Daniel Tavares, held on July 16, 2007, at which I was present.

I certify further that I am not a party interested in the outcome of the proceedings and am not related to any of the parties.



______________________________

Jennifer Witaszek, CVR

Official Court Reporter



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