Com. v. Spencer

• Decision Date: 05 June 1998
• Docket Number: No. 96-P-0669,96-P-0669
• Citation: 45 Mass.App.Ct. 33,695 N.E.2d 677
• Parties: COMMONWEALTH v. Dyvee H. SPENCER.
• Court: Appeals Court of Massachusetts

Page 677

695 N.E.2d 677

45 Mass.App.Ct. 33

COMMONWEALTH v. Dyvee H. SPENCER.

No. 96-P-0669.

Appeals Court of Massachusetts,

Hampden.

Argued Jan. 7, 1998.

Decided June 5, 1998.

The cases were tried before John F. Moriarty, J.

Susan E. Taylor, for defendant.

Deborah D. Ahlstrom, Assistant District Attorney, for Commonwealth.

Before GREENBERG, DREBEN and LENK, JJ.

LENK, Justice.

This appeal arises out of the Springfield Juvenile Court's waiver of jurisdiction over and the transfer of the defendant's case to Superior Court pursuant to G.L. c. 119, § 61 (as amended by St.1991, c. 488, §§ 2-6), and the defendant's subsequent conviction by a Superior Court jury of mayhem, G.L. c. 265, § 14; assault and battery by means of a dangerous weapon (both knife and gun), G.L. c. 265, § 15A(b ) ¹; and armed assault with intent to rob, G.L. c. 265, § 18(b ). On appeal, the defendant contends that (1) the Juvenile Court judge erred in allowing the Commonwealth's motion to transfer jurisdiction to the Superior Court; and (2) the trial judge erred in refusing to instruct the jury on good faith mistaken identification. We conclude that the denial of the requested jury instruction was improper and reverse the defendant's convictions.

Facts. We summarize the evidence as follows. On December 18, 1993, at approximately 7:30 P.M., Eddie Ortiz was standing in front of 25 White Street in Springfield speaking with Anthony Fuller and "Walter" when two black men drove up in a maroon Chevrolet Impala, left the car, and asked the three youths if they had any "weed." One of the two men was wearing a "Jason" mask ² and carrying a gun and the other was unmasked and carrying a knife. The man with the knife walked up to Walter and pulled out his jackknife, snapping the blade into place. Walter ran away. The men then demanded money from Ortiz, who tried to get on his bike to leave. The men grabbed Ortiz and dragged him around the corner of the building. The man with the knife reached out and slashed Ortiz across the face from his forehead to his mouth and then told his friend to "shoot the Spic," which his friend did. The two assailants then left the scene.

Fuller, meanwhile, had attempted to flee on foot as Ortiz was being assaulted. As he walked away, he saw the assailants take Ortiz behind the building, and heard a shot. Fuller had traveled some distance from the scene when the Impala pulled up next to him. One of the men pointed the gun at him but the other man said, "Don't do it," and the car drove off. Fuller doubled back to 25 White Street and saw Ortiz being taken away on a stretcher.

That night the police brought Fuller to the Springfield police station to make an identification of Ortiz's assailants. Fuller reviewed two boxes of photographs of black males under the age of nineteen and identified the defendant, Dyvee Spencer, as the person he had seen with the knife. Two days later, Dyvee Spencer was pulled over for running a red light and was arrested for the traffic violation. When the arresting officer pat frisked the defendant, he found a jackknife which both Fuller and Ortiz later identified as being the knife wielded by Ortiz's assailant on December 18, 1993. At a later date, both Fuller and Ortiz picked the defendant out of a lineup comprised of four young black males which the defendant's Juvenile Court attorney had arranged.

At trial, the defendant presented an alibi defense. The defendant's mother, Diana Spencer, testified that the defendant was with her at her place of employment at the time of the offense. Her employer, Harry Juul, corroborated this testimony. Juul testified that the defendant had stopped by his house, where Diana Spencer works as his personal care attendant, at shortly after 7:00 P.M. on Saturday, December 18, 1993, while Juul was watching "Star Trek: The Next Generation" on television. According to Juul, the defendant stayed for approximately one hour, while waiting for his mother to finish her duties and give him a ride, and left sometime after 8:00 P.M. while Juul was watching the television show "Cops."

1. Decision to transfer. Prior to trial, the defendant filed a motion to dismiss claiming that he was improperly transferred for trial as an adult under G.L. c. 119, § 61, because the Juvenile Court judge (1) relied upon unreliable hearsay on the issue of dangerousness; and (2) disregarded the clear and convincing evidence that the defendant was amenable to rehabilitation as a juvenile. The motion was denied. The defendant now asserts that the granting of the Commonwealth's request to transfer his case to the Superior Court and subsequent denial of his motion to dismiss were error. They were not.

A judge has wide discretion in determining whether a juvenile should remain within the juvenile system or be tried as an adult. A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976). Nonetheless, the judge must make written findings, supported by subsidiary findings pursuant to G.L. c. 119, § 61, regarding the juvenile's dangerousness and amenability to rehabilitation. Commonwealth v. O'Brien, 423 Mass. 841, 845, 673 N.E.2d 552 (1996). There is no de novo review at the appellate level. Commonwealth v. Matthews, 406 Mass. 380, 383-384, 548 N.E.2d 843 (1990). Rather, this court must determine whether there has been a material failing in the prescribed steps, i.e., a serious deficiency in the subsidiary findings, leading to the issuance of the order of transfer. Id. at 384, 548 N.E.2d 843 (citations omitted). Thus, absent an abuse of discretion, we will not disturb the judge's findings. Commonwealth v. O'Brien, 423 Mass. at 846, 673 N.E.2d 552.

In reviewing the Juvenile Court judge's decision to transfer, the Superior Court judge found that there were "no serious deficiencies in the subsidiary findings[, that] the Juvenile Court judge followed the procedures required by G.L. c. 119, § 61[,] and [that the Juvenile Court judge] made all the statutory findings." In her findings of fact and rulings of law, the Juvenile Court judge noted that (1) there was probable cause to believe that the defendant, with a codefendant, held up Ortiz at gunpoint and knifepoint resulting in "a cold blooded, merciless shooting in the abdomen, as well as a gratuitous slash of a knife across [Ortiz's] face leaving permanent scars"; (2) there was probable cause to believe that the defendant thereafter shot two men in broad daylight, while the charges arising from the Ortiz incident were pending the transfer decision; and (3) the defendant would receive, at best, only a few months of treatment with the Department of Youth Services before his eighteenth birthday. Based upon her findings, she concluded that the Commonwealth had proven by a preponderance of the evidence that "retaining the defendant in the Juvenile Justice System would not begin to offer adequate protection of the public from a young man who this court finds to be a significant danger to society and who cannot be rehabilitated within the Juvenile Justice System."

We agree with the Superior Court judge that there was ample evidence to support the Juvenile Court judge's subsidiary findings. The defendant was charged with an armed assault with an attempt to rob in violation of G.L. c. 265, § 18, an offense sufficiently serious to trigger a mandatory transfer hearing. G.L. c. 119, § 61. For such an offense, there is a rebuttable presumption that the defendant is a danger to the public and not amenable to rehabilitation. Ibid. Once this presumption is rebutted, the Commonwealth's burden at the transfer hearing is proof by a preponderance of the evidence. Commonwealth v. Wayne W., 414 Mass. 218, 222, 606 N.E.2d 1323 (1993). It is clear, given the facts of the brutal assault in this case, that this burden was met.

The use of hearsay evidence at a transfer hearing is not improper. The rules of evidence are more relaxed at a transfer hearing than at trial and hearsay evidence is, in fact, admissible. See Commonwealth v. Watson, 388 Mass. 536, 540, 447 N.E.2d 1182 (1983) (the test for admissibility is fundamental fairness "and not the application of rules of evidence concerning the admission of hearsay"). Consequently, it was not improper for the judge to admit hearsay testimony regarding the defendant's subsequent charge of assault and battery by means of a dangerous weapon. Moreover, although there was evidence presented that the defendant was amenable to rehabilitation as a juvenile, the judge was not bound by views she found unpersuasive. See Two Juveniles v. Commonwealth, 381 Mass. 736, 744-745, 412 N.E.2d 344 (1980). The defendant has an extensive history of delinquency ³ and his probation officer described him as "a young man at risk of further criminal involvement." In addition, the defendant was eligible for only a few months of treatment with the Department of Youth Services before his eighteenth birthday. The Juvenile Court judge did not abuse her discretion in allowing the transfer of the defendant to the Superior Court for prosecution as an adult.

2. Jury instructions. At trial, the sole issue in the case was the identification of the man who knifed Ortiz on the night of December 18, 1993. The Commonwealth argued in closing that the evidence identifying the defendant as the assailant was strong and persuasive. Defense counsel argued that Ortiz and Fuller made an honest but mistaken identification of the defendant. At the close of final arguments to the jury, defense counsel submitted proposed jury instructions to the court which included an instruction on honest but mistaken identification. The judge declined to give the mistaken identification instruction and defense counsel preserved his objection on the record.

A judge is not required to give a "good faith error" instruction in every case in which the issue of identification plays a significant role. In order for the jury instruction to be warranted, there must be sufficient...