463 Mass. 808 (2012), SJC-11155, Commonwealth v. Walczak

Docket Nº:SJC-11155.
Citation:463 Mass. 808, 979 N.E.2d 732
Party Name:COMMONWEALTH v. Javon WALCZAK.
Attorney:[979 N.E.2d 735]Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. Jonathan Shapiro (John Cushman with him) for the defendant.
Judge Panel:Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ. LENK, J. (concurring). GANTS, J. (concurring, with whom Botsford and Duffly, JJ., join). SPINA, J. (concurring in part and dissenting in part, with whom Ireland, C.J., and Cordy, J., join).
Case Date:December 12, 2012
Court:Supreme Judicial Court of Massachusetts
 
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Page 808

463 Mass. 808 (2012)

979 N.E.2d 732

COMMONWEALTH

v.

Javon WALCZAK.

SJC-11155.

Supreme Judicial Court of Massachusetts, Essex.

December 12, 2012

Argued May 8, 2012.

Indictments found and returned in the Superior Court Department on May 27, 2011. A motion to dismiss was heard by Timothy Q. Feeley, J., The Supreme Judicial Court granted an application for direct appellate review.

[979 N.E.2d 735]Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Jonathan Shapiro (John Cushman with him) for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

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The Commonwealth appeals from an order of a judge in the Superior Court dismissing an indictment that charged the defendant with murder in the second degree. There was evidence before the grand jury that the defendant, who was sixteen years old at the time of the offense, stabbed the victim, Rene Valdez, in an altercation that began when the victim and an accomplice attempted to rob the defendant. The judge dismissed the indictment on the ground that the Commonwealth had presented insufficient evidence to the grand jury to support an indictment of murder in the second degree. See Commonwealth v. McCarthy, 385 Mass. 160, 430 N.E.2d 1195 (1982). We granted the defendant's application for direct appellate review and now affirm the order dismissing the indictment.

The court unanimously agrees with the Commonwealth, contrary to the Superior Court judge's ruling, that the evidence before the grand jury supported the indictment for murder in the second degree. On this point, all Justices agree with the [979 N.E.2d 736] reasoning set forth in part 3.b of Justice Lenk's concurring opinion, post at 817-22, 979 N.E.2d at 741-45 (Lenk, J., concurring). Four Justices also agree with the defendant, however, that there is an alternative basis on which to uphold the judge's order: namely, that the grand jury should have been, but were not, instructed by the prosecutor on the elements of murder and on the legal significance of the mitigating circumstances raised by the evidence. The Justices who subscribe to this result do so for differing reasons. As reflected in her opinion, Justice Lenk is of the view that, in any case where the Commonwealth seeks to indict a juvenile for murder, the grand jury must be properly instructed by the prosecutor on the elements of murder, and if there are mitigating circumstances and defenses (other than lack of criminal responsibility) raised by the evidence, the grand jury must be instructed as to those as well. As explained in his opinion, Justice Gants, joined by Justices Botsford and

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Duffly, would hold that in cases where the Commonwealth seeks an indictment for murder and there is substantial evidence before the grand jury of mitigating circumstances or defenses (other than lack of criminal responsibility)— evidence sufficiently strong that the integrity of the grand jury would be impaired if it were withheld— the grand jury must be instructed on the elements of murder and on the mitigating circumstances and defenses, regardless of whether the subject of the grand jury's investigation is a juvenile or an adult. Post at 837, 979 N.E.2d at 754-55 (Gants, J., concurring)

Three Justices, Justice Spina, joined by Chief Justice Ireland and Justice Cordy, do not agree with the alternative basis for upholding the order dismissing the indictment. They do not subscribe to the view that instructions to the grand jury on mitigating circumstances and defenses were necessary in this case, and they would make no change in the existing law concerning grand jury procedure in cases such as this. These Justices would vacate the order dismissing the indictment and remand the case to the trial court for further proceedings. Post at 844, 979 N.E.2d at 759-60 (Spina, J., concurring in part and dissenting in part).

By a majority of the court, therefore, the order dismissing the indictment is affirmed. In future cases, where the Commonwealth seeks to indict a juvenile for murder and where there is substantial evidence of mitigating circumstances or defenses (other than lack of criminal responsibility) presented to the grand jury, the prosecutor shall instruct the grand jury on the elements of murder and on the significance of the mitigating circumstances and defenses. The instructions are to be transcribed as part of the transcription of the grand jury proceedings.

So ordered.

LENK, J. (concurring).

A grand jury twice returned indictments against the defendant, who was sixteen years old at the time of his alleged offense, for murder in the second degree in the killing of Rene Valdez. See G.L. c. 265, § 1. Twice, the same Superior Court judge dismissed the indictment; the first time because the grand jury proceedings had been impaired by

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the prosecutor's failure to disclose certain exculpatory evidence, see Commonwealth v. O'Dell, 392 Mass. 445, 446-447, 466 N.E.2d 828 (1984), and the second time on the ground of insufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160, 430 N.E.2d 1195 (1982). This is the Commonwealth's appeal from the second dismissal.

As explained below, the evidence was sufficient to support the indictment. The [979 N.E.2d 737] Commonwealth offered evidence to prove the two elements of murder in the second degree: an unlawful killing committed with malice. See Commonwealth v. Earle, 458 Mass. 341, 346, 937 N.E.2d 42 (2010). The defendant contends that his actions were undertaken in a heat of passion arising from reasonable provocation or sudden combat, or constituted excessive use of force in self-defense, but in evaluating the sufficiency of the evidence before the grand jury, we view the evidence of mitigating circumstances in the light most favorable to the Commonwealth and recognize that the grand jury need not credit such evidence. See Commonwealth v. Silva, 455 Mass. 503, 511, 918 N.E.2d 65 (2009) (Commonwealth bears no burden in its presentment to grand jury to disprove mitigating circumstances).

Unlike indictments for all other crimes, however, an indictment for murder brought against a juvenile defendant carries an added and significant consequence. A murder indictment must be tried in the Superior Court " in accordance with the usual course and manner of criminal proceedings," G.L. c. 119, § 74, and the juvenile defendant will be treated in all respects as an adult. If indicted for any other crime, the juvenile defendant would otherwise proceed in the Juvenile Court, with the protections there afforded him. The decision to indict for murder and bypass the Juvenile Court is now made by the grand jury without taking the defendant's youth into consideration in any way, a procedure that is in tension with significant considerations recognized in recent decisions of the United States Supreme Court. See Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012); Graham v. Florida, __ U.S. __, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 564, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). In view of the critical role of the grand jury in these unique circumstances, I think it prudent to factor the defendant's status as a juvenile into the murder indictment process, and I would do so by the simple expedient of requiring that appropriate legal instructions be provided to the grand jury. Specifically, I would require that in all cases where the Commonwealth seeks to indict a juvenile for murder, legal instructions be

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provided to the grand jury as to the elements of the crime for which an indictment is sought, as well as any mitigating circumstances or defenses raised by the evidence. Because no such instructions were provided here, the indictment was properly dismissed.

1. Presentment to the second grand jury.

The evidence presented to the second grand jury, in the light most favorable to the Commonwealth, indicated the following.1 See Commonwealth v. Catalina, 407 Mass. 779, 781, 556 N.E.2d 973 (1990). On the evening of August 9, 2010, the victim, along with his cousin, Jose Valdez, his friend Darren Colucci, and five other friends, went to a neighborhood park in Lynn at around 9:30 P.M. to play a game of football.2 After about forty-five minutes, they returned to Jose's home.

[979 N.E.2d 738] At some point during the evening, the victim telephoned the defendant to ask about buying marijuana; the defendant previously had sold marijuana to the victim. After the football game, the victim telephoned the defendant to decide on a place to meet. Darren agreed to accompany the victim to the arranged location. The victim was " trying to rob" the defendant, so he and Darren could " get the [marijuana] without paying for it." The victim repeated that he would " handle" and " body" the defendant.3 Although Jose tried to dissuade the victim from robbing the defendant, the victim and Darren left Jose's house to meet the defendant. Neither the victim nor Darren was armed.4

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Darren and the victim rode their bicycles to the location where they had mutually agreed to meet the defendant. After the victim contacted the defendant, they agreed to meet at another location, the corner of High Rock Street and Lawton Avenue. When they arrived, the defendant was waiting for them.

The victim approached the defendant from the front, while Darren approached from behind.5 According to Darren's testimony, the victim was telling the defendant that they " were going to take [the marijuana] without paying." Darren himself proceeded to poke the defendant in the head with his fingers and tell him, " We're taking it." After Darren poked him, the defendant " attacked [the...

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