Com. v. Hogan

• Decision Date: 12 January 1998
• Citation: 688 N.E.2d 977,426 Mass. 424
• Parties: COMMONWEALTH v. Ezekiel HOGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 977

688 N.E.2d 977

426 Mass. 424

COMMONWEALTH v. Ezekiel HOGAN.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 9, 1997.

Decided Jan. 12, 1998.

David Duncan, David Weingarten and John D. Fitzpatrick, Boston, for defendant.

Ezekiel Hogan, pro se.

Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

GREANEY, Justice.

A jury convicted the defendant, Ezekiel Hogan, of murder in the first degree on the grounds of extreme atrocity or cruelty and felony-murder (with armed robbery and aggravated rape as the predicate felonies), and of armed robbery and aggravated rape. ¹ The defendant claims error in (1) the denial of his motions to dismiss the indictments returned after he was transferred from the juvenile session of the Dorchester Division of the District Court Department to the Superior Court to be tried as an adult; (2) the denial of his motion to suppress his postarrest statement to the police; (3) remarks made by the prosecutor during his closing argument; (4) the trial judge's comments to the defendant during trial and to his defense counsel during closing argument; (5) certain jury instructions; and (6) his convictions of and sentences for armed robbery and aggravated rape that were imposed in addition to the conviction of and sentence for murder in the first degree. ² We conclude that the defendant has not demonstrated error and we discern no reason to exercise our authority pursuant to G.L. c. 278, § 33E, to order a new trial or to reduce the murder conviction to a lesser degree of guilt. Accordingly, we affirm the defendant's convictions and the sentences imposed.

The facts of this case have been previously stated in Commonwealth v. James, 424 Mass. 770, 678 N.E.2d 1170 (1997), where we upheld similar convictions of two other defendants who participated with the defendant in the commission of the crimes. We supplement these facts with those pertinent to the defendant that the jury would have been warranted in finding based on their consideration of the evidence at the defendant's trial. The defendant, age fifteen years at the time of the incident, and seven companions were drinking beer together on the evening of October 31, 1990. A short time later, someone suggested that they "go across the field and rob some prostitutes." The defendant agreed, and the group left the house and began walking toward Franklin Field in the Dorchester section of Boston. The eight males split into two groups to look for prostitutes. The defendant was part of the group that initially identified and chased Kimberly Rae Harbour, caught her, and carried her to a ditch in Franklin Field. The defendant helped to rip off Harbour's clothing, which the group later took away with them, and was the second male in the group to rape her. The defendant was also the second of the group to stab Harbour, and it was estimated that the defendant stabbed her ten times, stating at one point, "look how her skin cuts." The defendant also participated in assaulting Harbour during the attack, and he kicked her in the head. Harbour died from the assault, having suffered 132 stab wounds, at least eighteen blunt-force injuries, and extensive bleeding.

1. The defendant filed two motions to dismiss the indictments, one claiming that he was improperly transferred to the Superior Court for trial as an adult under G.L. c. 119, § 61 (as appearing in St.1975, c. 840, § 1), and the other claiming lack of impartiality on the part of the transfer judge. The trial judge denied both motions, concluding (a) that the transfer judge had properly concluded that the Commonwealth had proved by clear and convincing evidence that the defendant was not a proper subject for retention in the juvenile justice system because he was not amenable to rehabilitation within that system (the only contested issue) ³; and (b) that the defendant had failed to show that the transfer judge was not impartial. We discern no error in the denial of the defendant's motions.

(a) The version of G.L. c. 119, § 61, applicable to the defendant's case required that, as a condition of transfer, the Commonwealth prove "by clear and convincing evidence that the juvenile presents a significant danger to the public as demonstrated by the nature of the offense charged and the juvenile's past record of delinquent behavior, if any, and that the juvenile is not amenable to rehabilitation." Commonwealth v. Kelley, 411 Mass. 212, 213 n. 2, 581 N.E.2d 472 (1991). The defendant argues that the decision to transfer him was in error because it was based on the transfer judge's rejection of the testimony of his expert witness (a licensed clinical psychologist) rather than on evidence presented by the Commonwealth. ⁴ We disagree. The record establishes that the transfer judge placed the appropriate burden on the Commonwealth and carefully considered all relevant factors enumerated in the applicable transfer statute in deciding that the defendant should be transferred to the Superior Court to be tried as an adult.

The transfer judge's comprehensive written findings indicate that he did not base his decision that the defendant was not amenable to rehabilitation solely on his rejection of the testimony of the defendant's expert witness, which the transfer judge found to be equivocal and expressive of an " 'expectation' that the [defendant would] respond to treatment." See Commonwealth v. O'Brien, 423 Mass. 841, 846, 673 N.E.2d 552 (1996) (amenability to treatment of a juvenile accused of a serious crime "is not the same as [that juvenile's ultimate] rehabilitation"). See also Commonwealth v. Harold H., 43 Mass.App.Ct. 320, 323, 682 N.E.2d 1369 (1997). The transfer judge properly considered, and gave weight to, the seriousness of the charges against the defendant; his considerable history of aggressive and recalcitrant behavior when he was in school and under the supervision of the Department of Youth Services (DYS) ⁵; adjudicatory proceedings against the defendant on charges unrelated to the crimes at issue ⁶; his continued pattern of assaultive behavior, even while in secure detention at DYS; the lack of evidence to indicate that the defendant suffered from any mental disease or defect that would provide a basis for treatment from which he might benefit; and the fact that the defendant could only be kept in the juvenile justice system until he reached the age of eighteen, a period of less than two years. ⁷ These factors were relevant to the issue in dispute and established by clear and convincing evidence, as the transfer judge concluded, that the defendant was not amenable to rehabilitation within the juvenile justice system.

(b) The defendant claims that his motion to dismiss for lack of impartiality on the part of the transfer judge should have been allowed because that judge improperly participated in an arrangement whereby another juvenile defendant, whom we shall call Michael W., agreed to testify for the prosecution in exchange for his retention in the juvenile justice system.

The defendant's assertions are based on an affidavit by the attorney for Michael W. and affidavits by the attorneys for two other juvenile defendants. The latter two affidavits essentially reiterate information in the affidavit of Michael W.'s attorney that the attorneys submitting them considered relevant. The affidavits were filed in connection with similar motions to dismiss filed by two other juvenile defendants. The affidavits state that unrecorded conversations took place between the transfer judge, the attorney for Michael W., and the prosecutor, concerning the merits of the Commonwealth's case against the juvenile defendants and the arrangement for Michael W. to become a Commonwealth witness. ⁸ The defendant argues that the judge's alleged involvement in the discussion concerning Michael W., while he was considering the decision to transfer the defendant, creates an appearance of bias in favor of the Commonwealth which undermined the transfer decision.

In response to the defendant's claim, the trial judge noted that the same assertion, which had been raised by another juvenile defendant, had been denied in the trial judge's written memorandum which upheld the decision to transfer that defendant. The trial judge observed that the assertion had not been "too vigorously prosecuted on behalf of [Hogan]," and orally denied the motion to dismiss without an evidentiary hearing. In his earlier decision on this issue, the trial judge determined that the comments attributed to the transfer judge during the discussion of Michael W.'s case amounted to nothing more than an indication of that judge's view of the strength of the Commonwealth's case. The trial judge concluded that "an informally stated preliminary inclination to counsel [about the strength of the Commonwealth's evidence and the likelihood that the juvenile defendants would be convicted], does not constitute a failure by the judge to follow the prescribed procedure [to transfer]."

There is nothing in any of the affidavits which demonstrates any actual bias against the defendant on the part of the transfer judge or a lack of impartiality. On the present record, there is no need to order a factual resolution of the allegations that the transfer judge may have become overinvolved, and may have spoken indiscreetly, during the discussion of Michael W.'s case. See, however, Commonwealth v. Gordon, 410 Mass. 498, 501 n. 3, 574 N.E.2d 974 (1991) ("We take this opportunity to remind judges that they are not to participate as active negotiators in plea bargaining discussions"). We point out that "[t]he fact ... that a judge [may] overstep[ ] the line does not mean that a judgment after trial must be vacated for presumptive bias on the part of the judge." Commonwealth v. Ford, 35 Mass.App.Ct. 752, 757, 626 N.E.2d 1 (1994). We reject the suggestion...