Com. v. Costello

• Decision Date: 05 July 1984
• Citation: 392 Mass. 393,467 N.E.2d 811
• Parties: COMMONWEALTH v. James COSTELLO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 811

467 N.E.2d 811

392 Mass. 393

COMMONWEALTH v. James COSTELLO.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 6, 1984.

Decided July 5, 1984.

Thomas G. Shapiro, Boston, for defendant.

John A. Kiernan, Asst. Dist. Atty. (John N. Tramontozzi, Asst. Dist. Atty., with him) for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS and LYNCH, JJ.

LYNCH, Justice.

This case involves the same crime as our decision in Commonwealth v. Pennellatore, 392 Mass. 382, 467 N.E.2d 820 (1984), and the factual circumstances underlying the incident at issue need not be repeated here. See Commonwealth v. Pennellatore, supra at 384-385, 467 N.E.2d 820. The defendant, a juvenile, was tried as an adult after a District Court judge ordered the case transferred from the Juvenile Session of the West Roxbury District Court to the Superior Court. G.L. c. 119, § 61. The defendant was convicted of murder in the first degree, armed robbery, and armed assault in a dwelling with intent to commit a felony, and was sentenced to concurrent life terms on the latter two convictions, to be served from and after the mandatory life term on the conviction of murder in the first degree.

The defendant's appeal rests on three general grounds. First, he contends that the subsidiary findings of the judge of the Juvenile Session were insufficient to warrant the transfer of the case to the Superior Court. Second, the defendant raises a number of arguments relating to nondisclosure of evidence by the prosecution, which will be spelled out in greater detail below. Finally, the judge's charge to the jury is criticized in a number of respects, each one relating to a possibly inappropriate use of a phrase or term in the judge's charge. After considering each of the defendant's numerous arguments, we find no error. Nor do we consider this an appropriate case for the invocation of our powers under G.L. c. 278, § 33E, and therefore we affirm the judgments of the lower court.

1. Review of the issue whether the transfer of the defendant's case from the Juvenile Session to the Superior Court was proper was initiated by a motion by the defendant to dismiss the indictments, which was denied by a Superior Court judge. The defendant then filed a petition for extraordinary relief in this court, which was denied by a single justice, the denial being accompanied by a detailed review of the defendant's factual circumstances. Following this, the full court denied a stay of the pending proceedings in the Superior Court.

In order for a juvenile offender between the ages of fourteen and seventeen to be tried as an adult, it must be determined that he falls into one of two categories: (1) he must be a child who was previously committed to the Department of Youth Services and who is now charged with having committed a crime which would be punishable by imprisonment in the State prison if he were an adult; or (2) he must be charged with having committed an offense involving the infliction or threat of serious bodily harm. G.L. c. 119, § 61. In turn, there must be a finding that probable cause exists regarding whether the juvenile has committed the offense charged. Id. In the instant case, the defendant's situation qualified under both categories, and he does not challenge the findings of probable cause on the complaints of murder, armed robbery, and armed assault in a dwelling.

In addition to satisfying one of the two statutory categories described above, a judge must also make two written findings, based upon clear and convincing evidence, that: "(1) the child presents a significant danger to the public (this danger being demonstrated by the nature of the offense and the child's past record of delinquent behavior, if any); and (2) the child is not amenable to rehabilitation as a juvenile." Two Juveniles v. Commonwealth, 381 Mass. 736, 740, 412 N.E.2d 344 (1980). G.L. c. 119, § 61. These two written findings must be supported by subsidiary findings, which should be derived from consideration of five statutorily delineated "factors." G.L. c. 119, § 61. ¹ "Even though the statute requires that the two critical findings be written, its only affirmative requirement concerning the enumerated factors is that they be considered." Two Juveniles v. Commonwealth, supra at 741, 412 N.E.2d 344. "There is no specific requirement that a judge weigh these factors in a certain manner or achieve some predesigned balance." A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976). Instead, our long-standing policy has been to entrust a judge with "considerable discretion, within this statutory framework, to determine whether a child should be treated as an adult." Id.

The defendant argues that the Juvenile Session judge's subsidiary findings were not sufficient to establish the judge's ultimate finding that he was not amenable to rehabilitation, and he charges the judge with relying primarily on the factor of the serious nature of the offense. The single justice rejected this argument and emphasized the varied nature of the subsidiary findings made by the judge in reaching his conclusion that the defendant was not amenable to treatment as a juvenile. ² It was not error for the judge to attach substantial significance to the seriousness of the offense, as this does bear on both the danger to the public and an individual's prospects for rehabilitation. Seriousness of the offense is also included as an element in the statute, G.L. c. 119, § 61, and there is considerable precedent in favor of according this factor significant weight in the juvenile transfer process. Two Juveniles v. Commonwealth, supra 381 Mass. at 743, 412 N.E.2d 344. A Juvenile v. Commonwealth, supra 370 Mass. at 282, 347 N.E.2d 677. However, we also take note of the judge's consideration of all the other "enumerated" factors outlined in the statute, as well as previous foster care efforts made by the Commonwealth. We therefore find no error in the Juvenile Session judge's decision that the defendant should be tried as an adult. Further, we do not agree with the defendant's suggestion that the Commonwealth was required to produce expert psychiatric testimony to prove that the defendant was not amenable to rehabilitation. There is no requirement in juvenile transfer proceedings that the Commonwealth produce such testimony, see Commonwealth v. Cole, 380 Mass. 30, 35-38, 402 N.E.2d 55 (1980), nor has it even been resolved whether the Commonwealth could compel such an examination in this context, see G.L. c. 123, § 15.

2. We next consider the defendant's arguments related to alleged failures by the prosecutor to disclose inculpatory evidence prior to trial. The first allegation concerns testimony by the police officer who received a telephone call from the defendant three days after the murder. Commonwealth v. Pennellatore, supra 392 Mass. at 383, 467 N.E.2d 820. During the conversation, the defendant apparently asked the officer if the police were looking for him, to which the officer replied affirmatively. At trial, the officer testified that the defendant then said that he and Phillip Pennellatore "had been running together since the night before and that day downtown." The defendant then told the officer where he and Pennellatore could be located, and the officer and his partner subsequently went to that location and arrested them.

The defendant argues that, prior to the police officer's actual testimony on the witness stand, the prosecutor only informed defense counsel that the officer would testify that the defendant told him that he was "with" Pennellatore and had been with him throughout the day. After hearing the use of the word "running" in the officer's testimony, the defendant moved for a mistrial. In his argument in opposition to this motion, the prosecutor informed the judge that he did not know that the officer was going to use that particular word in his testimony. The trial judge denied the defendant's motion, and defense counsel subsequently cross-examined the officer extensively regarding his statement.

The trial judge was correct in denying the defendant's motion for a mistrial. Where the disclosure of evidence by the prosecution is delayed, in order to justify a mistrial there must be a showing of prejudice by defense counsel and a demonstration of "how the granting of a new trial would substantially remedy such prejudice." Commonwealth v. Cundriff, 382 Mass. 137, 151, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). The defendant made no showing of how his case was prejudiced by the police officer's statement. As an initial matter, the meaning of the term "running" taken in context is equivocal: its colloquial interpretation as a synonym for "being together with" is no less credible than the defendant's characterization of it as an expression of guilt. Even if the defendant's characterization is accepted, the defendant's opportunity to cross-examine the officer extensively regarding the statement effectively removed any prejudice that may have been created. Commonwealth v. Cundriff, supra. Commonwealth v. Gilbert, 377 Mass. 887, 895, 388 N.E.2d 1190 (1979). Commonwealth v. Adrey, 376 Mass. 747, 755, 383 N.E.2d 1110 (1978). This is not a situation where, "given a timely disclosure, the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed." Commonwealth v. Wilson, 381 Mass. 90, 114, 407 N.E.2d 1229 (1980). Absent such a showing of prejudice, the defendant's motion for a mistrial was properly denied.

We reach a similar conclusion regarding the defendant's other argument with respect to delayed disclosure of evidence, in this case the results of a phenolphthalein test which was performed on the defendant's sneaker to detect the presence of blood. Prior to trial, a police laboratory analyst performed this test on the...