Com. v. Juvenile (No. 2)

• Citation: 351 N.E.2d 521,370 Mass. 677
• Parties: COMMONWEALTH v. a JUVENILE (NO. 2).
• Decision Date: 15 July 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 521

351 N.E.2d 521

370 Mass. 677

COMMONWEALTH

v. a JUVENILE (NO. 2).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1976.

Decided July 15, 1976.

William P. Homans, Jr., Boston (Russell K. Dunning, Boston, with him) for defendant.

Joseph I. Mulligan, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and KAPLAN, JJ.

HENNESSEY, Chief Justice.

In this case, we again confront a question that arises in the wake of the United States Supreme Court's decision in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), ¹ which held that the prosecution of a defendant in the Superior Court, after an adjudicatory proceeding in a Juvenile Court, constitutes double jeopardy in violation of the Fifth Amendment to the United States Constitution. Id. at 541, 95 S.Ct. 1779. The juvenile defendant in the present case has filed a motion to dismiss the indictments brought in the Superior Court charging him with murder and unarmed robbery, alleging that a trial on these indictments is contrary to Breed. He contends that the pending prosecution in the Superior Court is barred by the principle of double jeopardy because he has been put in former jeopardy as a result of the determination made in the Municipal Court of the Brighton District on April 1, 1975, to dismiss the juvenile complaints and to try him as an adult. A Superior Court judge reported the case without decision to the Appeals Court under the provisions of G.L. c. 278, § 30A, and G.L. c. 211A, § 10. This court granted direct appellate review of the Superior Court report.

We do not decide if the hearing which was held in the Municipal Court on April 1, 1975, constituted an adjudicatory hearing, but rather we assume arguendo that it did. Therefore, we address only the question whether a trial on the indictments in the Superior Court would violate the Fifth Amendment ban on double jeopardy. We hold that the pending prosecution of the defendant is not barred by the principle of double jeopardy, for the court's holding in Breed is not applicable to juvenile proceedings which were conducted prior to the date of that decision on May 27, 1975.

We need not recount in detail the circumstances surrounding the defendant's hearing in the Municipal Court, for we will assume, without deciding, that this proceeding was a trial on the merits. Nevertheless the facts as reported by the trial judge may be summarized briefly as follows.

About 9:10 A.M. on March 12, 1975, two young men snatched a handbag from Helen Murphy. She fell to the sidewalk, where she was later found lying unconscious.

Subsequently, a juvenile complaint was issued alleging that the defendant was a delinquent by reason of unarmed robbery of Helen Murphy. After counsel was appointed for the defendant, he was arraigned in the Municipal Court. On March 21, 1975, the victim having died, a second juvenile complaint was issued pursuant to G.L. c. 119, § 54, and G.L. c. 265, § 1, charging the defendant with delinquency by reason of murder.

Following defense counsel's filing of motions for sequestration of witnesses and for suppression of evidence, a hearing was conducted on April 1, 1975, on the two juvenile complaints. Evidence on the motion to suppress was heard concurrently. At the time of this hearing, Rule 85A of the Rules of the District Courts entitled 'Dismissal of Juvenile Complaint and Trial of Child as An Adult,' was in effect, having been adopted effective May 7, 1973. ²

The assistant district attorney, on behalf of the Commonwealth, called several witnesses and introduced in evidence an allegedly incriminating statement by the defendant; a death certificate; testimony by police officers as to the investigation of the incident, the defendant's arrest and the recovery of evidence; and a stipulation containing anticipated testimony of a witness who had arrived at the scene immediately after the handbag snatching. The appointed counsel for the defendant cross-examined the Commonwealth's witnesses and called one defense witness, a teacher of a bilingual class at the defendant's school. An adult defendant, whose case was heard concurrently with that of the defendant, introduced the testimony of at least one witness.

At the close of the evidence, the defendant's counsel made a closing statement requesting the court to rule favorably on his motion to suppress evidence and to find the defendant not delinquent. Thereafter, the presiding judge denied the motion and indicated that he was going to dismiss the juvenile complaints. ³ Defense counsel took no further action, whereupon the judge dismissed the juvenile complaints and caused adult complaints to issue. ⁴

Adult complaints were issued on April 1, 1975, charging the defendant with murder and unarmed robbery. The defendant was arraigned and, at the arraignment, he waived an adult probable cause hearing. He was thereupon bound over to the grand jury and indicted for the above offenses. Following a hearing on the defendant's motion to dismiss the indictments and before a trial on the merits, the Superior Court judge reported the case in view of the serious and substantial questions of law involved. ⁵

In deciding whether the prosecution of the defendant in the Superior Court would constitute double jeopardy, we begin by noting that in STOKES V. COMMONWEALTH, --- MASS. --- 336 N.E.2D 735 (1975)^A, we concluded that Breed was not to be given retroactive effect. Id. at --- ^b 336 N.E.2d 735. Nevertheless, the defendant argues that Stokes is not dispositive, for in the instant case the criminal trial in the Superior Court has not yet taken place, whereas in Stokes all proceedings had been completed prior to Breed. The defendant argues that the question presented here is not whether to apply Breed retroactively, but, rather, whether to apply it prospectively to those defendants who have been subjected to an adjudicatory juvenile proceeding before Breed but are still awaiting trial for the same offense in the Superior Court.

While we may agree with the defendant's characterization of the problem as involving the prospectivity of Breed, we do not believe that this statement of the issue necessarily leads to the conclusion urged by the defendant. In determining the cutoff date for the application of a new constitutional doctrine, "there is a large measure of judicial discretion involved . . .." Jenkins v. Delaware, 395 U.S. 213, 218, 89 S.Ct. 1677, 1680, 23 L.Ed.2d 253 (1969), quoting from State v. Vigliano, 50 N.J. 51, 65--66, 232 A.2d 129 (1967). As noted by the Supreme Court in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), 'there is no inflexible constitutional rule requiring in all circumstances either absolute retroactivity or complete prospectivity for decisions construing the broad language of the Bill of Rights.' Id. at 651, 91 S.Ct. at 1151. ⁶

Despite this latitude in deciding the time at which a new constitutional principle is to be controlling, the Supreme Court has in recent decisions begun to adopt a consistent approach whereby 'the moment at which the discarded standards were first relied upon' is regarded as determinative. Jenkins v. Delaware, supra 395 U.S. at 218, 89 S.Ct. at 1680. ⁷ 'The point of reliance is critical, not because of any constitutional compulsion, but because it determines the impact that newly articulated constitutional principles will have upon convictions obtained pursuant to investigatory and prosecutorial practices not previously proscribed.' Ibid. In addition, as suggested by the court, emphasizing the point of initial reliance as the operative event is 'consistent with the fundamental justification for not applying newly enunciated constitutional principles retroactively,' id. at 218--219 n.7, 89 S.Ct. at 1680, ⁸ and therefore is consistent with our rationale in Stokes for not applying Breed retroactively.

Examining the case before us in light of the above analysis, we conclude that reliance, as that term has been applied in recent Supreme Court cases, first occurred on April 1, 1975, when the Municipal Court judge conducted an adjudicatory juvenile hearing. It was at that moment that the situation became irreversible, for by subjecting the defendant to former jeopardy in the Municipal Court, any subsequent trial would necessarily constitute double jeopardy under the reasoning of Breed. Accordingly, it is logical to consider April 1, 1975, the date of the juvenile proceeding, as the date of the 'prohibited practice,' and, therefore, the crucial point when determining the applicability of the newly formulated constitutional standards. See Jenkins v. Delaware, supra 395 U.S. at 217 89 S.Ct. 1677.

Once it is determined that the relevant moment of reliance occurred prior to the court's decision in Breed on May 27, 1975, it follows that Breed should not be applicable, since it was permissible under the then existing law to hold such an adjudicatory hearing. ⁹ Therefore, we hold that Breed applies only to a juvenile adjudicatory hearing commenced after May 27, 1975, and since the defendant's hearing occurred prior to that date, we decide that his pending prosecution in the Superior Court is not barred by the principle of double jeopardy. Accordingly the defendant's motion is to be denied, and the indictments are to stand for trial in the Superior Court.

So ordered.

1 See Stokes v. Commonwealth, --- Mass. ---, 336 N.E.2d 735 (1975) (Mass.Adv.Sh. (1975) 3030). Cf. A Juvenile v. Commonwealth, --- Mass. ---, 347 N.E.2d 677 (1976) (Mass.Adv.Sh. (1976) 1237).

2 Rule 85A of the Rules of the District Courts, which governed the hearing on April 1, 1975, provided in part: 'If the court after the hearing on the juvenile complaint deems necessary a consideration of whether to dismiss the juvenile complaint and to try the child as an adult for the offense, the court shall, subject to a continuance if requested by...