Com. v. Clint C.

• Decision Date: 31 August 1999
• Citation: 715 N.E.2d 1032,430 Mass. 219
• Parties: COMMONWEALTH v. CLINT C., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1032

715 N.E.2d 1032

430 Mass. 219

COMMONWEALTH v. CLINT C., a juvenile.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 7, 1999.

Decided Aug. 31, 1999.

Linda Marie Poulos, Assistant District Attorney, for the Commonwealth.

Patricia A. O'Neill, Committee for Public Counsel Services, Boston (Joshua Dohan, Roxbury, with her) for the juvenile.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, MARSHALL, & IRELAND, JJ.

LYNCH, J.

At issue in this case is whether a Juvenile Court judge erred in dismissing a youthful offender indictment under G.L. c. 119, § 54, charging the fifteen year old juvenile with rape of a child, G.L. c. 265, § 23. ¹ Prior to jury empanelment, the juvenile moved to dismiss the youthful offender indictment arguing that the charge of rape of a child does not involve the threat or infliction of serious bodily harm as required by G.L. c. 119, § 59. ² After a hearing, the judge allowed the motion to dismiss, concluding that the facts of the case did not involve the threat or infliction of serious bodily harm. We granted the juvenile's application for direct appellate review. We conclude for the reasons set forth below that the indictment should not have been dismissed.

The judge made the following findings of fact. ³ On December 14, 1996, the victim's mother told Detective Richard Grafton that, earlier that day, she had left her six year old daughter (victim) and two other children in the care of her fifteen year old brother, the juvenile, while she went to work. She returned home for lunch, and as she was preparing to leave, her son burst into tears and said, "[the juvenile] stuck his dinky in [the six year old victim's] mouth." Her daughters both confirmed what her son had told her. Detective Grafton interviewed the victim. The victim stated that the juvenile came into the room, opened his pants, exposed his penis, and placed it in her mouth, that "he made me suck his dinky," and that she had to stroke his penis with her hands while she was doing this. On February 5, 1997, the victim and her sister were separately interviewed and videotaped by members of the sexual assault unit and essentially reiterated what they had stated earlier to the detective. Additionally, the victim's sister said that, although "[the juvenile] put his penis in [the victim's] mouth," that she did not hear the juvenile say anything. The victim stated: "My uncle made me suck his dinky ... he didn't do nothing else ... [and][h]e didn't say anything." She further stated that the juvenile did not do anything to make her do it, "he just did it." She said that he put her hands "on his dinky," but "didn't do nothing to my hands [when they were on his penis]." The victim said that the juvenile did not say anything to her afterward, and specifically did not say anything about not telling her mother or anyone else.

The judge denied the juvenile's motion to dismiss the indictment on jurisdictional grounds, concluding that the juvenile need not be a youthful offender to be indicted pursuant to G.L. c. 119, § 54, but rather that a juvenile so indicted may subsequently be adjudicated as a youthful offender. The judge concluded that, to determine whether the juvenile may be transferred under § 54, a judge must look to the specific factual allegations in the case if the elements of the offense do not necessarily include the infliction or threat of serious bodily harm. The judge reviewed the grand jury minutes, the videotaped interviews, and the transcripts of those interviews. He then applied a probable cause standard and concluded that the Commonwealth had not met its burden of proving that the juvenile committed an offense which involves the infliction or threat of serious bodily harm. The judge did not need to address the juvenile's constitutional arguments.

On appeal, the Commonwealth argues that the judge erred in dismissing the indictment because rape of a child, G.L. c. 265, § 23, is an offense which inherently involves the threat or infliction of serious bodily harm as required for a youthful offender indictment under G.L. c. 119, § 54. The juvenile argues that, because statutory rape is an offense which intrinsically does not involve the threat or infliction of serious bodily harm, the grand jury lacked jurisdiction under G.L. c. 119, § 54, to indict him as a youthful offender and points out that the Commonwealth need not prove lack of consent, force, or threat of bodily injury. ⁴ See Commonwealth v. Thayer, 418 Mass. 130, 132, 634 N.E.2d 576 (1994). The juvenile further argues that it is the specific facts of the felony charged that dictate whether a youthful offender indictment may be brought, therefore, the judge was correct in ruling that the facts of this case do not involve the threat or infliction of serious bodily harm. Last, the juvenile contends that, if § 54 is interpreted to include statutory rape as a "transferable" offense, the statute would be unconstitutionally vague on its face and as applied because the statute provides no notice that an offense not involving as an element the threat or infliction of serious bodily harm could be brought under § 54.

1. The youthful offender act. A comparison of the former transfer statute with the current youthful offender act is helpful in resolving the issues raised by this appeal. The former transfer statute, G.L. c. 119, § 61, authorized transfer by judicial waiver. The Juvenile Court judge was charged with making the preliminary determination whether a particular offense met the jurisdictional requirement. G.L. c. 119, § 61. In the probable cause portion of the transfer hearing, commonly known as a "Part A hearing," the judge then had to find that there was probable cause to "believe that the child ha[d] committed the offense or violation charged." Commonwealth v. DiBenedetto, 414 Mass. 37, 47, 605 N.E.2d 811 (1992), quoting G.L. c. 119, § 61. If the judge determined that probable cause existed, "dangerousness and amenability to rehabilitation are considered at a proceeding styled a Part B hearing." Commonwealth v. Wayne W., 414 Mass. 218, 219-220 n. 2, 606 N.E.2d 1323 (1993). Under the former statute, "[w]e ... adopted a directed verdict standard to determine whether the evidence was sufficient to support a transfer." Commonwealth v. DiBenedetto, supra at 48, 605 N.E.2d 811, citing Commonwealth v. Matthews, 406 Mass. 380, 388, 548 N.E.2d 843 (1990).

The Legislature enacted the youthful offender act, St.1996, c. 200(act), and repealed G.L. c. 119, § 61. In response to societal concerns about violent crimes committed by juveniles, the act drastically altered the procedure to be applied in such cases. See generally R.L. Ireland, Juvenile Law §§ 1-3, at 2-19 (1993 & Supp.1998).

The act provides for prosecutorial discretion to proceed by an indictment where the juvenile has attained a certain age and is alleged to have committed a certain class of felonies. ⁵ Youthful offenders are those who, while between the ages of fourteen and seventeen years, commit acts that would be punishable by commitment to State prison if committed by adults and have previously been committed to the Department of Youth Services, or have committed offenses which "involve[ ] the infliction or threat of serious bodily harm," ⁶ or commit firearms offenses. See G.L. c. 119, § 54, as amended through St.1996, c. 200, § 2. See note 2, supra. Once a juvenile is treated as a youthful offender, he is no longer given the protections and privileges afforded to delinquent children. See Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212-213 n. 8, 680 N.E.2d 92 (1997).

In the present case, the judge conducted a hearing on the juvenile's motion to dismiss which was the equivalent of a transfer hearing under the former transfer statute. The current statute makes no provision for review of a prosecutor's decision to try the juvenile as an adult. " '[W]e must read the statute in a way to give it a sensible meaning.' Beeler v. Downey, [387 Mass. 609, 616, 442 N.E.2d 19 (1982) ], citing Lexington v. Bedford, 378 Mass. 562, 570 (1979)." Commonwealth v. Dodge, 428 Mass. 860, 865, 705 N.E.2d 612 (1999). The Legislature clearly intended to authorize the transfer of youthful offenders on an indictment sought by the prosecuting attorney without the transfer hearing required under the former procedure. See G.L. c. 119, § 54 ("commonwealth may proceed ... by indictment" [emphasis added] ). It compels the judge to proceed on the indictment in accordance with other statutory requirements set out in §§ 55-72, inclusive. See id. "court shall proceed on the complaint or the indictment" [emphasis added] ).

The Legislature's decision to provide the prosecutor with the discretion to seek a youthful offender indictment, as long as the statutory prerequisites are met, is merely a limitation on the special treatment of juveniles consistent with the prosecutor's traditional broad discretion in deciding whether to prosecute a case. ⁷ "The Legislature has great latitude in defining criminal conduct and in prescribing penalties to vindicate the legitimate interests of society." Commonwealth v. Pyles, 423 Mass. 717, 720, 672 N.E.2d 96 (1996), and cases cited. "The function of the legislature [in this area] is primary, its exercises fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of their wisdom or propriety." Id. at 721, 672 N.E.2d 96, quoting Weems v. United States, 217 U.S. 349, 379, 30 S.Ct. 544, 54 L.Ed. 793 (1910). We have also recognized that the Legislature may establish and define methods of criminal practice and procedure. Commonwealth v. Pyles, supra at 722, 672 N.E.2d 96. Therefore, we conclude that, absent an error of law, a judge may not dismiss an indictment brought under G.L. c. 119, § 54.

We now turn to the question whether the act authorized the prosecutor to seek an indictment for the offense of rape of a child....