Commonwealth v. Geordi G., 16-P-1009

• Decision Date: 20 September 2018
• Docket Number: No. 16-P-1009,16-P-1009
• Parties: COMMONWEALTH v. GEORDI G., a juvenile.
• Court: Appeals Court of Massachusetts

111 N.E.3d 1102

COMMONWEALTH

v.GEORDI G., a juvenile.

No. 16-P-1009

Appeals Court of Massachusetts, Berkshire County..

Argued April 11, 2018

Decided September 20, 2018

Kyle Gray Christensen, Assistant District Attorney, for the Commonwealth.

Robert Hennessy Springfield, for the juvenile.

Present: Sullivan, Lemire, & Ditkoff, JJ.

DITKOFF, J.

A school official obtained a delinquency complaint charging the juvenile with, inter alia, two counts of assault and battery based on alleged incidents of pushing a teacher and hip-bumping the principal at his middle school. See G. L. c. 265, § 13A (a ). Over the Commonwealth's objection, a judge of the Juvenile Court dismissed these charges for lack of probable cause. Concluding that the observations of the teacher, the principal, and a school counsellor established probable cause, we vacate the order of dismissal. We also take this opportunity to remind school officials of their obligation, when seeking a delinquency complaint against a student with an individualized education program (IEP), to make the prosecutor aware of the juvenile's special needs in a timely manner.

Background.¹ On December 2, 2015, the twelve year old juvenile was in the gymnasium of his middle school at the end of a basketball game. He refused to follow directions, started swearing at a teacher, and left the gymnasium. The teacher followed and asked him to come back into the gymnasium, but he refused and ran down the hallway into the atrium. When the juvenile was asked to go to the office, he stated that he was "not going to the fucking office" and did not want "to talk to any of those assholes." The teacher tried to calm him down, but he would not calm down or stop swearing loudly. The principal then came into the atrium and also tried to calm him down. The juvenile was breathing heavily, had clenched fists and puckered lips, and was visibly upset. He also punched a cinder block wall that was behind him. The teacher was standing in front of the doors to the hallway, and the juvenile pushed the teacher and went through the doors.

After several minutes, other teachers left their rooms and came into the hallway to try to calm down the juvenile. The principal directed the first teacher to return to her classroom. Nonetheless, the juvenile became more agitated, punched lockers, and stated that he was going to injure people. The principal issued a "soft lockdown," which required the students to stay in their classrooms and to delay transitioning to their next classes. After about ten minutes, the soft lockdown was removed when the group of teachers and the principal were able to convince the juvenile to leave the hallway and to enter the office of the school's adjustment counsellor.

In the counsellor's office, the juvenile was still upset and swearing. He stepped towards the principal in a threatening manner and, standing face-to-face about one foot away, repeatedly asked, "You're fucking scared of a [twelve] year old?" The juvenile then walked to the door, bumping the principal with the side of his body, thus moving him.

On December 3, 2015, the assistant principal of the middle school filed an application under G. L. c. 218, § 35A, for a delinquency complaint, alleging that the juvenile committed two counts of assault and battery (one against a teacher and the other against the principal) and one count of disturbing a school assembly, G. L. c. 272, § 40. The assistant principal made no mention of the juvenile's IEP in the application, and there is no indication that the school otherwise made the prosecutor aware of the juvenile's special needs.

On January 19, 2016, the clerk-magistrate issued a delinquency complaint for all three charges. The juvenile then moved to dismiss the complaint before arraignment. On March 24, 2016,² a hearing was held on the motion to dismiss. The judge dismissed the two assault and battery charges for lack of probable cause and arraigned the juvenile on the charge of disturbing a school assembly.³ The Commonwealth appeals pursuant to Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996).

Discussion. 1. Probable cause determination. "[W]e review the ... judge's probable cause determination de novo." Commonwealth v. Humberto H., 466 Mass. 562, 566, 998 N.E.2d 1003 (2013), quoting Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009). "[A] motion to dismiss a complaint [for lack of probable cause] ‘is decided from the four corners of the complaint application, without evidentiary hearing.’ " Id. at 565, 998 N.E.2d 1003, quoting Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111, 993 N.E.2d 734 (2013). "To establish probable cause, the complaint application must set forth ‘reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.’ " Id., quoting Commonwealth v. Roman, 414 Mass. 642, 643, 609 N.E.2d 1217 (1993). To satisfy the probable cause standard, "more than mere suspicion" is required, but the evidence need not be sufficient to warrant a conviction. Commonwealth v. Cartright, 478 Mass. 273, 283, 84 N.E.3d 851 (2017), quoting Commonwealth v. Jewett, 471 Mass. 624, 629, 31 N.E.3d 1079 (2015). Our review of the judge's order of dismissal is confined to the evidence submitted to the clerk-magistrate, see Commonwealth v. Ilya I., 470 Mass. 625, 626, 24 N.E.3d 1048 (2015), which is "viewed in the light most favorable to the Commonwealth." Commonwealth v. Levesque, 436 Mass. 443, 444, 766 N.E.2d 50 (2002).

"The complaint application must include information to support probable cause as to each essential element of the offense." Humberto H., 466 Mass. at 565-566, 998 N.E.2d 1003. The crime of an intentional assault and battery requires proof that the juvenile "touched the victim without having any right or excuse to do so and that the [juvenile's] touching of the victim was intentional." Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 564, 855 N.E.2d 406 (2006). Furthermore, there must be proof either that the touching was "with such violence that bodily harm is likely to result" (harmful battery), Commonwealth v. Eberhart, 461 Mass. 809, 818, 965 N.E.2d 791 (2012), quoting Commonwealth v. Burke, 390 Mass. 480, 482, 457 N.E.2d 622 (1983), or "occurred without the victim's consent" (offensive battery). Eberhart, supra, quoting Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 476, 892 N.E.2d 805 (2008). Accord Instruction 6.140 of the Criminal Model Jury Instructions for Use in the District Court (2016). Both the teacher and the principal wrote that the juvenile pushed the teacher after arguing with her. The counsellor wrote that she observed the juvenile address the principal in a threatening manner and then bump him with the juvenile's side. Viewed in the light most favorable to the Commonwealth, these accounts provide a sufficient showing of the elements of intentional, offensive assault and battery to warrant a prudent person in concluding that the juvenile committed assault and battery when he pushed the teacher and hip-bumped the principal.

We are unpersuaded by the argument that the juvenile intended only to leave the rooms and to remove himself and thus did not have the requisite intent to touch the teacher and the principal. Prior to pushing the teacher on his way out of the doors to the hallway, the juvenile was disregarding directions, running away from school staff, and yelling and swearing, continuing to do so even after the teacher and other staff attempted to calm him. Similarly, before bumping into the principal, the juvenile stated that he was going to injure others and then stepped towards the principal in a threatening manner and repeatedly stated, "You're fucking scared of a [twelve] year old?" Although the juvenile may very well have had the primary motivation of removing himself from both situations, based on the circumstances surrounding the incidents, it is a reasonable inference that the juvenile also intended to make contact with the individuals.⁴

2. Prearraignment dismissal based on best interests of the juvenile and in the interests of justice. Relying on the holding in Humberto H., the juvenile contends that, even if the complaint application supports a finding of probable cause, the judge properly exercised her discretion in dismissing the two charges prior to arraignment to protect the best interests of the juvenile and in the interests of justice. We disagree.

The judge based her dismissal on her finding that there was no probable cause to support the charges of assault and battery. Nothing in the judge's decision indicates that she made a discretionary decision that dismissal was in the best interests of the juvenile and in the interests of justice. To the contrary, the judge allowed the charge of disturbing a school assembly to proceed, suggesting that she viewed prosecution to be in the interests of justice.

Case law issued after the events in question will govern this question if the Commonwealth chooses to proceed. In Commonwealth v. Newton N., 478 Mass. 747, 89 N.E.3d 1159 (2018), the Supreme Judicial Court decided that, where a complaint obtained by a police officer is supported by probable cause, a judge cannot dismiss the complaint prior to arraignment even when the judge determines that dismissal before arraignment would serve the best interests of the child and the interests of justice. Id. at 755-757, 89 N.E.3d 1159. This is because, "where a complaint is supported by probable cause, the decision to proceed with the prosecution rests in the broad and exclusive discretion of the prosecutor." Id. at 755, 89 N.E.3d 1159. The courts expect prosecutors to consider carefully "whether to proceed with the arraignment of a juvenile, even where there is probable cause, and consider whether prosecution will serve the best interests of the child and the interests of justice." Id. at 757, 89 N.E.3d 1159.

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