Com. v. Rodriguez

• Decision Date: 15 November 1978
• Citation: 382 N.E.2d 725,376 Mass. 632
• Parties: COMMONWEALTH v. Jose RODRIGUEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 725

382 N.E.2d 725

376 Mass. 632

COMMONWEALTH v. Jose RODRIGUEZ.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 13, 1978.

Decided Nov. 15, 1978.

Eric D. Blumenson, Boston, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

On September 28, 1976, the defendant Jose Rodriguez, then sixteen years of age, was complained of as being delinquent, in that on September 27 he had (in a single episode) committed the crimes of rape and assault and battery with a dangerous weapon. After a hearing in the Juvenile Session, Municipal Court of Brookline, the judge ordered the juvenile complaints dismissed and adult complaints to be issued. ¹ The prosecution then took the usual course, and in the end, on July 20, 1977, the defendant, on trial by jury in the Superior Court, Norfolk County, was convicted of the offenses above named.

The trial judge postponed sentencing and on his own motion committed the defendant for a sixty-day observation period to the Treatment Center for sexually dangerous persons at Bridgewater State Hospital (G.L. c. 123A, § 4). The report of two psychiatrists, consultants at that institution, presented to the court, recommended commitment of the defendant to the Treatment Center as a "sexually dangerous person" (SDP) within the meaning of G.L. c. 123A, § 1. ² There was a hearing on the recommendation on October 20 and 21, 1977. In order to establish under § 1 that there had been "repetitive" behavior tending to prove sexual dangerousness, the Commonwealth offered in evidence certified copies of adjudications made in the Municipal Court of the West Roxbury District on February 3, 1976, finding the defendant delinquent for the commission on June 24, 1975 (in a single episode) of assault with intent to commit rape and assault and battery with a dangerous weapon. These records were received over defense objections. There was further detailed testimony by the examining psychiatrists and by a psychiatrist on the part of the defendant. The judge on January 17, 1978, entered findings, ruling, and order to the effect that the defendant had been proved an SDP beyond a reasonable doubt. He ordered the defendant committed to the Treatment Center for an indeterminate period of one day to life (G.L. c. 123A, § 5).

The defendant takes his appeal from the determination and argues two points, that the judge erred, first, in receiving the delinquency adjudications in evidence; second, in holding that the evidence as a whole warranted a conclusion that the defendant was an SDP within the definitional § 1. We take up these points in turn, deferring to point 2 a summary of the evidence and expert opinion bearing on the defendant's psychological condition. We shall conclude that there was no error, but that a remand for clarification on a limited matter is advisable.

1. Admissibility of Adjudications of Juvenile Delinquency. The defendant contends that the delinquency adjudications were not admissible as proof of the commission of the offenses involved, while conceding that it would be open to the Commonwealth to re-prove the offenses by the testimony of witnesses (which the defendant presumably could oppose by other testimony). The difficulties as well as the needlessness of such duplicative proof argue pragmatically against the defendant's position; but it must be owned that there is a problem here in the elucidation of related statutory sources, G.L. c. 123A, § 5, governing the procedure, including the admission of evidence, in an SDP hearing, and G.L. c. 119, § 60, part of the juvenile delinquency law which regulates the use of delinquency adjudications in subsequent legal proceedings.

(a) Juvenile records as "criminal." We start with the pertinent provisions of § 5, as appearing in St.1958, c. 646, § 1: "(I)t shall be competent to introduce evidence of the person's past criminal and psychiatric record and any other evidence that tends to indicate that he is a sexually dangerous person. Any psychiatric report filed under this chapter shall be admissible in evidence in such proceeding." Can one fasten on the words "past criminal . . . record" and say that a delinquency adjudication (necessarily based on the commission of a criminal offense) qualifies as such a record? This is not easy to maintain. Our juvenile delinquency law states at G.L. c. 119, § 53 (unchanged in text since 1906), that the law "shall be liberally construed so that the care, custody and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that, as far as practicable, they shall be treated, not as criminals, but as children in need of aid, encouragement and guidance. Proceedings against children . . . shall not be deemed criminal proceedings." And this court has noted the legislative purpose "to keep . . . delinquency proceedings from being regarded as criminal in character." See Marsden v. Commonwealth, 352 Mass. 564, 566, 227 N.E.2d 1, 2 (1967).

But despite the general legislative expression, the delinquency process has assumed a kind of criminal character because it has progressively absorbed the adjective safeguards of ordinary criminal prosecutions. A half century's bitter experience has taught that where the safeguards attaching to criminal trials are foregone in juvenile proceedings, while the realities, after delinquency is found, fall short of the rehabilitative aspirations of the early sponsors of juvenile courts, children subjected to the process may be twice deprived. ³ So in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Supreme Court began to define what the Constitution required of juvenile proceedings before they could lead to deprivations of liberty. In a well known line of cases the Court has commanded adherence to various criminal protections. ⁴ An apparent retreat from this "criminalizing" of the juvenile process came with McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), when the Court declined to extend to juveniles the jury right assured to defendants in criminal prosecutions by the States. ⁵ Mr. Justice Blackmun said for a plurality: "Little . . . is to be gained by any attempt simplistically to call the juvenile court proceeding either 'civil' or 'criminal.' The Court carefully has avoided this wooden approach." Id. at 541, 91 S.Ct. at 1984. He therefore attempted to strike a "judicious balance" between the aim of the constitutional guaranty invoked and "the idealistic prospect of an intimate, informal protective proceeding" (Id. at 545, 91 S.Ct. at 1986), and, as the jury was thought not "a necessary component of accurate factfinding" (Id. at 543, 91 S.Ct. at 1985), he struck the balance toward the ideal of informality. See also the remarks in Breed v. Jones, 421 U.S. 519, 529, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

The functional development, mirrored in the Commonwealth by legislation and decision over the years, ⁶ has left our juvenile procedure still unassimilated in many respects to the criminal, still relatively intimate, informal, and paternal. Except for limited situations, ⁷ the broad legislative policy prevails to preserve confidentiality of juvenile records and thus to prevent stigmatization. See Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., --- Mass. ---, --- - --- ^A, 374 N.E.2d 272 (1978). Cf. In re Winship, 397 U.S. 358, 366, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). So also the conception remains that juveniles have limited responsibility for their behavior, a conception that shapes the kind and quality of their treatment for antisocial acts. Cf. White, J., concurring in McKeiver v. Pennsylvania, 403 U.S. 528, 551-552, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). With such considerations in mind, we would be loath to say that the c. 123A, § 5, reference to "criminal . . . records," contrasting with the c. 119, § 53, characterization of juvenile proceedings as "civil," is properly read as embracing juvenile delinquency adjudications. It is worth noting that c. 119 had long been on the books when c. 123A, § 5, was written in 1958, ⁸ so the textual disparity could have come to the draftsman's attention. We add that we are influenced in some degree by the fact that most changes of juvenile procedure in the spirit of In re Gault were brought in at the urging of the juvenile and presumably to benefit him (see Commonwealth v. Thomas, 359 Mass. 386, 388, 269 N.E.2d 277 (1971)), ⁹ whereas in the present case the party resists the analogy to the criminal.

(b) Juvenile records as "any other evidence." If juvenile records do not qualify as "criminal" within that term as used in § 5, we have yet to deal with the further expression in the same section, "any other evidence that tends to indicate that he is a sexually dangerous person." This form of words appears to extend to delinquency adjudications whether classified as civil or criminal. However, by reason of Commonwealth v. Bladsa, 362 Mass. 539, 541, 288 N.E.2d 813 (1972), the "any other evidence" must be admissible according to some independent rule of admissibility. ¹⁰ The defendant proceeds to argue that, just as Bladsa disallowed hearsay (testimony of police reports, offered to prove the matters contained), so the court must disallow a delinquency adjudication because, he contends, it is declared inadmissible by c. 119, § 60. This reads in part, as amended through St.1973, c. 1073, § 16: "An adjudication of any child as a delinquent child under . . . (cited sections of the law), or the disposition thereunder of any child so adjudicated, or any evidence given in any case arising under said sections, shall not be lawful or proper evidence against such child for any purpose in any proceeding in any court, and records in cases arising against any child under said sec...