Com. v. Clark

• Citation: 379 Mass. 623,400 N.E.2d 251
• Parties: COMMONWEALTH v. Thomas C. CLARK.
• Decision Date: 25 January 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 251

400 N.E.2d 251

379 Mass. 623

COMMONWEALTH v. Thomas C. CLARK.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 4, 1979.

Decided Jan. 25, 1980.

Kevin M. Keating, Boston, for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant, Thomas C. Clark, alleges violations of double jeopardy and procedural due process in the context of his 1972 juvenile delinquency proceeding pursuant to G.L. c. 119, §§ 52-84. We conclude that the defendant has failed to demonstrate error under the law existing at the time of the juvenile hearing in a District Court. We therefore affirm the subsequent judgment in the Superior Court pursuant to the defendant's plea to guilty of murder in the second degree.

A brief summary of the juvenile proceeding is in order. The defendant, who was sixteen years old at the time of the incident, was arrested for the murder of Joana R. Ferris. At the outset of the November, 1972, juvenile proceeding in the District Court of Southern Essex at Lynn, a judge denied a motion by defense counsel to bifurcate the transfer and delinquency aspects of the defendant's hearing.

To establish the juvenile's probable perpetration of the murder, the Commonwealth presented fifteen witnesses who were cross-examined by counsel for the defendant. This evidence tended to show that the defendant broke into the victim's home, sexually assaulted her, and murdered her. After the Commonwealth had concluded its case, defense counsel rested without calling any witnesses. Then followed a colloquy between the judge and defense counsel as to calling additional witnesses on the issue of the defendant's amenability to juvenile treatment.

The District Court judge, giving written reasons, ordered the dismissal of the juvenile complaint over the defendant's objection, and an adult complaint charging the defendant with murder was issued. The defendant waived his adult probable cause hearing. He was subsequently indicted for murder and was bound over for trial in the Superior Court.

The defendant thereafter moved in the Superior Court to dismiss the indictment. He complained of the District Court's failure to comply with Rule 85 of the District Courts (as adopted March 4, 1969) and alleged violations of the double jeopardy and due process clauses to the United States Constitution. At the hearing on the defendant's motion to dismiss in October, 1977, ¹ defense counsel sought to establish that he had been denied an opportunity to convince the District Court judge that the defendant should not be treated as an adult. In an attempt to show that the public interest standard did not require dismissal of the juvenile complaint, defense counsel introduced reports and affidavits of psychiatrists, pointed to the defendant's lack of prior criminal record, and elicited testimony from the regional director of the Department of Youth Services (DYS) to the effect that, because the defendant was a juvenile, he should have been placed in a DYS forestry camp if found delinquent. The judge denied the defendant's motion to dismiss. The defendant then pleaded guilty to murder in the second degree and was sentenced to life imprisonment. A claim of appeal was filed, and the case was transferred to this court on the defendant's request for direct appellate review.

1. Before dealing with the primary thrusts of the defendant's appeal, we must consider the Commonwealth's threshold contention that, by entering a plea of guilty in the Superior Court, the defendant waived his right to raise double jeopardy and due process issues on appeal. We disagree. A guilty plea will not preclude a court from hearing a constitutional claim that the State should not have tried the defendant at all. Menna v. New York, 423 U.S. 61, 62-63 n. 2, 96 S.Ct. 241, 242, 46 L.Ed.2d 195, 197-198 (1975). Because the defendant alleges that his Superior Court proceedings following the hearing on the juvenile complaint constituted a second trial for the same offense in violation of the prohibition against double jeopardy, his claim goes to the "very power of the State to bring the defendant into court," see Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974), and thus may be raised on appeal despite his plea of guilty.

Likewise, due process claims of the kind raised by the defendant here are open for review after a plea of guilty. Under our statutes, a juvenile complaint must be dismissed before adult criminal proceedings may be initiated against a juvenile. See G.L. c. 119, §§ 61, 74. Where a dismissal is invalid, the criminal court lacks jurisdiction to accept a guilty plea. Cf. Rachal v. Commonwealth, 369 Mass. 956, 336 N.E.2d 872 (1975) (rescript); Commonwealth v. Franklin, 366 Mass. 284, 287-288, 318 N.E.2d 469 (1974); Commonwealth v. White (No. 1), 365 Mass. 301, 306-307, 311 N.E.2d 543 (1974), cert. denied, 419 U.S. 1111, 95 S.Ct. 785, 42 L.Ed.2d 808 (1975); A Juvenile, petitioner, 364 Mass. 531, 536, 306 N.E.2d 822 (1974); Commonwealth v. Chase, 348 Mass. 100, 103-105, 202 N.E.2d 300 (1964); Metcalf v. Commonwealth, 338 Mass. 648, 651-656, 156 N.E.2d 649 (1959). Because the defendant's due process claims attack the validity of the dismissal of the juvenile complaint, they are jurisdictional in nature. Consequently, his guilty plea does not preclude our consideration of those alleged errors. Cf. Rachal v. Commonwealth, supra; Commonwealth v. Zion, 359 Mass. 559, 563, 270 N.E.2d 395 (1971); Garvin v. Commonwealth, 351 Mass. 661, 663, 223 N.E.2d 396, appeal dismissed, 389 U.S. 13 88 S.Ct. 119, 19 L.Ed.2d 12 (1967). We turn now to the merits of the case.

2. Double jeopardy claim. The defendant first urges us to apply to this case the result reached in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). In that case the United States Supreme Court held that double jeopardy bars prosecution of a juvenile as an adult for alleged crimes arising out of the same incident for which the juvenile was previously adjudicated delinquent in a juvenile court.

Because Breed held that jeopardy attached only at an adjudicatory hearing on a juvenile complaint, the defendant correctly assumes that he must first establish that his juvenile proceedings were adjudicatory before he can raise a double jeopardy claim. See Stokes v. Commonwealth, 368 Mass. 754, 762, 336 N.E.2d 735 (1975). The defendant argues that the District Court judge's refusal to sever the transfer hearing from the hearing on the juvenile complaint, coupled with the judge's numerous equivocal statements concerning the purpose of the hearing, ² reveal the adjudicatory nature of the proceeding. We disagree.

Our rejection of the defendant's assertion that the hearing was adjudicatory is twofold. First, a bifurcated proceeding, although possible, was not mandated by the statute then in effect. See A Juvenile v. Commonwealth, 370 Mass. 272, 278, 347 N.E.2d 677 (1976). A hearing on the juvenile complaint in the nature of a probable cause hearing could be conducted simultaneously with the transfer hearing without obviating the nonadjudicatory character of the proceeding. Breed v. Jones, supra, 421 U.S. at 538 n. 18, 95 S.Ct. at 1790, 44 L.Ed.2d at 360. Thus, the Commonwealth's introduction of substantial evidence connecting the juvenile with the offense in question did not in itself render the hearing adjudicatory. See id.; Stokes v. Commonwealth, 368 Mass. 754, 762, 336 N.E.2d 735 (1975). Indeed, we have noted that the preferable approach, in light of the importance of a decision to transfer a juvenile, provides for a determination of probable cause at the transfer hearing. A Juvenile v. Commonwealth, 370 Mass. 272, 279 n. 9, 347 N.E.2d 677 (1976). And G.L. c. 119, § 61, as appearing in St.1975, c. 840, § 1, now requires a judge to make a determination of probable cause during the transfer hearing.

Second, the District Court judge's pronouncements regarding the scope of the hearing indicated at the outset that counsel should focus primarily on whether or not it was in the public interest to try the defendant as a juvenile or as an adult. He also noted that should the Commonwealth fail to marshal sufficient evidence, he could find the defendant nondelinquent. Only after the Commonwealth had presented its case and the defense had rested, did the judge add that he could find delinquency as well as nondelinquency. See note 2 supra. We regard the judge's concluding statements as an unfortunate slip of the tongue. This misstatement is rendered harmless, however, by its occurrence at the end of the hearing. Defense counsel had obviously already made his tactical decision not to call certain psychiatrists as witnesses because they might inculpate the defendant by revealing his admissions and thus might preclude an adjudication of nondelinquency. As a result of this strategy, the defendant risked being tried as an adult, but he did not risk the adjudication of juvenile delinquency necessary to subject him to double jeopardy under Breed v. Jones. See Stokes v. Commonwealth, 368 Mass. 754, 764, 336 N.E.2d 735 (1975). Moreover, no adjudication of delinquency or finding of guilt was ever made. ³ Thus, we conclude that the defendant's juvenile hearing constituted a transfer hearing only and did not subject him to double jeopardy.

Even if we assumed arguendo that the defendant's juvenile proceeding was adjudicatory, our conclusion would be the same, because we have held Breed inapplicable to juvenile proceedings occurring prior to the date of that decision, May 27, 1975. See Commonwealth v. A Juvenile, 372 Mass. 38, 360 N.E.2d 324 (1977); Commonwealth v. A Juvenile (No. 2), 370 Mass. 677, 351 N.E.2d 521 (1976); Rachal v. Commonwealth, 369 Mass. 956, 336 N.E.2d 872 (1975) (rescript); Stokes v. Commonwealth, 368 Mass. 754, 336 N.E.2d 735 (1975)....