Com. v. Bernardo B.

• Citation: 453 Mass. 158,900 N.E.2d 834
• Decision Date: 06 February 2009
• Docket Number: SJC-10293
• Parties: COMMONWEALTH v. BERNARDO B., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts

900 N.E.2d 834

453 Mass. 158

COMMONWEALTH v. BERNARDO B., a juvenile.

SJC-10293

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 3, 2008.

Decided February 6, 2009.

Michael Sheehan, Assistant District Attorney, for the Commonwealth.

Janice Bassil, Boston (Michael J. Traft with her) for the juvenile.

Corinne Schiff, Mie Lewis, & Lenora M. Lapidus, New York, NY, & Sarah Wunsch, Boston, for American Civil Liberties Union Foundation of Massachusetts & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

On September 30, 2008, the Commonwealth appealed from an order and judgment of a single justice denying its petition pursuant to G.L. c. 211, § 3,¹ to vacate a Juvenile Court judge's pretrial discovery order. The order issued pursuant to Mass. R.Crim. P. 14(a)(2),² as appearing in 442 Mass. 1518 (2004), at the request of the juvenile male (boy), charged with nine counts of sexual offenses, including rape of a child, G.L. c. 265, § 23 (statutory rape),³ which the boy allegedly perpetrated against three female children, who were his friends. At the time of the alleged offenses, between August 10 and October 15 of 2007, the boy was fourteen years old and entering the ninth grade, two of the girls were twelve years old and entering the seventh grade, and the third girl, who was born on October 15, 1995, was turning twelve years old and entering sixth grade.⁴ After his counsel unsuccessfully attempted to have the three girls charged with raping him in connection with the same alleged incidents, the boy sought discovery from the Commonwealth pursuant to rule 14(a)(2), in order to investigate and, if possible, support his claim that he was being selectively prosecuted because of his gender. Cf. Commonwealth v. King, 374 Mass. 5, 19, 372 N.E.2d 196 (1977) ("a female charged with prostitution or night walking would be entitled to a dismissal of the charges with prejudice on an appropriate showing that the police department or the prosecutor's office followed an unjustifiable policy of selective enforcement against female prostitutes and not male prostitutes"). The Juvenile Court judge granted the boy's discovery request and denied the Commonwealth's two subsequent motions for reconsideration. The single justice upheld the judge's order. In essence, the Commonwealth contended that the boy failed to present any evidence that would upset the "presumption of regularity" that attends its decision to initiate proceedings against him, that the material he seeks is neither relevant nor material to the charges against him of statutory rape and that production of the information he seeks would be onerous and implicate the privacy of others.

On December 19, 2008, we issued the following order:

"After full consideration of the appellate record, the parties' briefs, and the oral arguments, it is hereby ordered that the judgment of the single justice dated September 10, 2008, denying the Commonwealth's petition pursuant to G.L. c. 211, § 3, is affirmed. Opinion or opinions to follow.

"The stay pending appeal ordered by the single justice on September 30, 2008, is hereby vacated. The Commonwealth shall respond to the juvenile's discovery request forthwith (except paragraphs 4 and 5 of the request, which the juvenile has since waived). The case shall proceed in the Juvenile Court on an expedited basis, with the judge ensuring that no nonemergency delays be tolerated.

"The rescript shall issue to the county court forthwith."

This opinion states the reason for that order.

The Commonwealth has broad discretion in deciding whether to prosecute a case; judicial review of these decisions must proceed circumspectly lest we intrude on a function constitutionally vouchsafed to another branch of government. See, e.g., Commonwealth v. Lora, 451 Mass. 425, 445, 886 N.E.2d 688 (2008) (standard of proof for selective enforcement claim "must be sufficiently rigorous that its imposition does not unnecessarily intrude on the exercise of powers constitutionally delegated to other branches of government"). However, prosecutorial discretion may not transgress the limits set out in our Federal and Massachusetts Constitutions; in the final analysis, it is the judicial branch's solemn duty to ensure that such overreaching does not occur. Id. at 437, 886 N.E.2d 688, quoting Commonwealth v. King, supra at 20, 372 N.E.2d 196 ("`conscious exercise of some selectivity' in criminal law enforcement" permitted as long as selectivity not based on "an unjustifiable standard such as race, religion or other arbitrary classification").

The record in this case, as we elaborate below, suggests among other things that the sexual activity in question was nonforcible, that all of the children mutually agreed to it, and that all were under the age of consent. In the circumstances, we conclude that the boy has sufficiently met the threshold showing required under rule 14(a)(2) that the discovery he seeks is relevant to his claim of selective prosecution, and that the Commonwealth has failed to advance any persuasive reason that it cannot, or should not, be required to meet its obligation of production.⁵

1. Facts. In early October, 2007, the boy's father, checked the "text messages" on his son's cellular telephone⁶ and discovered a text message from his son's friend, R.L., a girl, that stated: "I would have given you an HJ[⁷] if [S.C.] wasn't there." The boy's father contacted S.C.'s mother to express his concerns. After questioning her daughter about her interactions with the boy and speaking with other parents, S.C.'s mother notified the police on October 13, 2007, that the boy had sexually assaulted S.C., R.L., and a third girl, A.L.⁸

That same day, a police officer met jointly with the mothers of the three girls at S.C.'s mother's house and took statements from the mothers about what they had learned from their daughters concerning sexual contact with the boy. The girls were then questioned separately at a child advocacy center by a sexual assault intervention network (SAIN) interviewer employed by the district attorney, while the police officer, an assistant district attorney, and a victim witness advocate watched from a closed circuit television in a separate room. Each interview was recorded.⁹ Because the girls' interviews are the foundation of this case, we summarize them at some length.¹⁰

a. Interview with A.L. A.L. described two incidents of sexual contact with the boy, whom she described as a friend. Both occurred in August or September, 2007, during "manhunt," a hide-and-seek game that the children played in the woods behind S.C.'s home. She reported that, on one occasion, in response to the boy's request,¹¹ she gave the boy a "hand job" by reaching into his pants and touching his penis for about "two seconds." The two then continued to play manhunt. During the second incident, she and the boy were kissing in the woods behind S.C.'s house when he began "pressuring me a little" for a "blow job" (fellatio). A.L. stated that she put her mouth on the boy's penis twice, each time for about "one second." Following these incidents, A.L. reported, she and the boy remained friends. At one point he told her that "he felt really bad for it [and] that he would never do that again to anyone." b. Interview with R.L. R.L. reported that she performed oral or manual sex on the boy about four times in late summer or early fall of 2007. Three of these incidents occurred during the game of manhunt, when the boy "forc[ed]" her to have sexual contact with him by laying down, pulling off his pants, and telling her, "Just start doing it. I know you're gonna like it. Just, c'mon. Just please?" He also told R.L. that, if she did not perform the sex acts on him, he would tell a friend of R.L.'s that R.L. had said bad things about her. The other incident occurred in the basement of S.C.'s home, apparently during a game of "truth or dare." R.L. also told the interviewer that, on another occasion in S.C.'s basement, the boy showed her and S.C. a pornographic "video clip," using S.C.'s brother's computer, of a woman performing fellatio on a man.¹²

c. Interview with S.C. S.C. reported a number of sexual contacts with the boy during the late summer and early fall of 2007. Most of these incidents occurred in S.C.'s basement during games of "truth or dare," in which the boy told S.C. that if she wanted to "make out" with him, she had to give him a "hand job" because "[t]hose are my rules."¹³ She estimated that she performed manual sex on the boy approximately five times.¹⁴

S.C. also reported one occasion in which the boy put his penis in her mouth.¹⁵ She told him that she did not want him to do this, and the boy replied, "Whatever." During another game of truth or dare, S.C. reported, the boy "dare[d]" S.C. and A.L. to grab his penis, and they both did and then kissed him. S.C. also stated that the boy showed her and R.L. a video clip on her brother's computer of a woman performing fellatio on a man. In response to a question from the SAIN interviewer, S.C. denied that the boy did or showed her anything else that made her uncomfortable.¹⁶

2. Procedural background. On October 18, 2007, the boy was arrested and charged as a juvenile on nine counts of criminal conduct: three counts of statutory rape (R.L., A.L., and S.C.); three counts of indecent assault and battery of a child under the age of fourteen years (R.L., A.L., and S.C.), G.L. c. 265, § 13B¹⁷; two counts of dissemination of obscene matter, G.L. c. 272, § 29¹⁸; and one count of assault and battery (R.L.), G.L. c. 265, § 13A.¹⁹ On two occasions thereafter, the boy's counsel communicated with the district attorney's office in an effort to have the Commonwealth charge R.L., A.L., and S.C. with statutory rape, indecent assault and battery, and assault and battery against the boy. She also requested documentation of any written policy promulgated...