Commonwealth v. Milo M.

• Decision Date: 07 November 2000
• Docket Number: SJC-08269
• Parties: (Mass. 2001) COMMONWEALTH vs. MILO M., a juvenile
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

740 N.E.2d 967 (Mass. 2001)

COMMONWEALTH vs. MILO M., a juvenile.

SJC-08269

Massachusetts Supreme Court

November 7, 2000

January 5, 2001

Kathleen M. Kelly for the juvenile.

Sandra L. Hautanen, Assistant District Attorney, for the Commonwealth.

Thomas F. Reilly, Attorney General, & Barbara F. Berenson, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

David M. Moore, City Solicitor, & Elizabeth M. Sanning, Assistant City Solicitor, for city of Worcester, amicus curiae, submitted a brief.

Present: Marshall, C.J., Abrams, Greaney, Ireland, Spina, Cowin, & Sosman, JJ.

Delinquent Child. Threatening. Practice, Criminal, Findings by judge. Evidence, Judicial notice. Constitutional Law, Freedom of speech and press. Words, "Threatened."

Complaint received and sworn to in the Worcester Division of the Juvenile Court Department on January 27, 1999.

The case was heard by George F. Leary, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

IRELAND, J.

Milo M., a juvenile defendant, appeals from the Juvenile Court's adjudication of him as delinquent by reason of threatening his teacher in violation of G. L. c. 275, 2. While public schools remain very safe places for children to be, with respect to this appeal, we face the important and troubling question whether, given recent, highly publicized incidents of school violence, a drawing that depicts a student pointing a gun at his teacher constitutes a threat. We conclude that it does, and thus, affirm the adjudication of delinquency.

1. Facts and procedural history. On October 27, 1998, the twelve year old juvenile sat at a desk in the hall directly outside of his classroom and drew a picture. While the juvenile was awaiting the principal's arrival to address with him "some issues from the previous day," a teacher at the school confiscated the drawing and showed it to the juvenile's teacher, Mrs. F. The drawing depicted a violent scene of the juvenile shooting Mrs. F. See Appendix A. Meanwhile, the juvenile left the desk, entered the classroom, took a piece of paper, returned to the desk in the hall and "proceeded to draw another picture." Moments later, the juvenile reentered the classroom and stood near the doorway. He held up the second picture, which depicted the juvenile pointing a gun at Mrs. F. See Appendix B. He looked at Mrs. F and in a defiant tone said, "[D]o you want this one too?" From where she was standing, Mrs. F could not see the drawing. However, after seeing the first drawing, and "[f]rom his posture, [and] the look on his face," Mrs. F realized that the juvenile was very upset and very angry. Because she did not want the juvenile to approach her, she instructed him to give the drawing to another student, who then gave it to Mrs. F. The juvenile returned to his desk in the hall without further comment. Mrs. F testified that, after seeing the second drawing, she became "apprehensive" and "[a]fraid for [her] safety." Apparently, as a result of these incidents, the juvenile was suspended immediately for three days and sent home. However, at the end of that same school day, both Mrs. F and the teacher who confiscated the first drawing witnessed the juvenile at the school, loitering very near Mrs. F's car.

Subsequently, the Worcester Division of the Juvenile Court Department issued a complaint, charging the juvenile with threatening Mrs. F in violation of G. L. c. 275, 2.¹ At trial, the judge adjudicated the juvenile delinquent by reason of threatening his teacher, on the basis of the second drawing.² The juvenile appealed, and we transferred the case on our own motion.

2. The standard applied. The word "threatened" is not defined in the Massachusetts threat statute, G. L. c. 275, 2. Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 583 (1999). However, "[t]he elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat." Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), quoting Commonwealth v. Robicheau, 421 Mass. 176, 184 (1995). See Robinson v. Bradley, 300 F. Supp. 665, 668-669 (D. Mass. 1969) (articulating standard for finding threat in violation of G. L. c. 275, 2 et seq.).

Here, the juvenile claims that the judge applied an incorrect standard in finding that the juvenile's conduct met all the requisite elements of threatening to commit a crime.³ Because the juvenile did not object to the judge's findings at trial, we review this alleged error under the substantial risk of a miscarriage of justice standard. Commonwealth v. Gorassi, 432 Mass. 244, 249 & n.8 (2000).

Specifically, the juvenile claims that the judge focused his ruling on Mrs. F's subjective state of mind and, in so doing, failed to make the requisite finding of the juvenile's objective intention and ability to commit a crime. While it is true that a threat must be tested objectively, see Commonwealth v. DeVincent, 358 Mass. 592, 595 (1971) (affirming violation of attempted extortion statute, G. L. c. 265, 25); Commonwealth v. Sholley, 48 Mass. App. Ct. 495, 497, S.C., 432 Mass. 721 (2000) ("the decisional law requires that the threat be made in circumstances that would reasonably justify apprehension on the part of an ordinary person"); Commonwealth v. Strahan, 39 Mass. App. Ct. 928, 930 (1995) (threat assessed by determining whether defendant's statements reasonably caused apprehension), we disagree with the juvenile's claim that the judge failed to do so in this case.

As the juvenile concedes, the judge based his ruling on a finding that "it was reasonable to fear that the [juvenile] had the intention and ability to carry out the threat." This objective finding reflects the judge's correct application of the law. The absence of any other references to an objective standard in his ruling does not create a substantial risk of a miscarriage of justice. Contrast Commonwealth v. Gorassi, supra at 248-249 (substantial risk of miscarriage of justice where judge incorrectly expanded definition of assault to include "an attempt to do psychological harm"). Indeed, "[w]hen a case is tried without a jury, the legal framework in which facts are to be found is not generally stated with the precision and amplitude of instructions to a jury. As an initial matter, it is presumed that the judge as trier of fact applies correct legal principles." Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992). The record supports this presumption. Moreover, the juvenile has not shown that the judge "incorrectly applied a subjective standard to determine whether a threat to commit a crime [had] occurred," as the juvenile contends. Finally, the juvenile did not ask the judge for further clarification of the law being applied. See id. ("[a] judge sitting without a jury may . . . make an express ruling on a disputed point of law . . . upon specific request of counsel who desires to preserve a point for appeal"). The judge's finding was proper.

3. Findings of fact and sufficiency of the evidence. The juvenile next argues that the judge's determinations that the juvenile (1) had the intention and ability to commit a crime that would justify apprehension on the part of Mrs. F; and (2) communicated the threat to Mrs. F were clearly erroneous.(4) These factual findings are subject to the "clearly erroneous" standard, and we conclude the judge's findings were not clearly erroneous.⁵ Commonwealth v. Motta, 424 Mass. 117, 121 (1997). See Commonwealth v. King, 429 Mass. 169, 172 (1999) ("we defer to the . . . judge's finding of fact in the absence of clear error"); Commonwealth v. Ward, 426 Mass. 290, 294 (1997). Having reviewed the entire trial transcript, we conclude that there is ample evidence in the record to support these findings. Thus, we are not "left with the firm conviction that a mistake has been committed." Commonwealth v. Tavares, 385 Mass. 140, 146, cert. denied, 457 U.S. 1137 (1982). Therefore, the findings are not clearly erroneous.

The juvenile also seems to argue that there was insufficient evidence to support the judge's finding that the juvenile threatened Mrs. F. Specifically, the juvenile contends that the judge "had no evidence of [the juvenile's] ability to commit the threatened crime before [him], and therefore, the trial court based its decision on insufficient evidence."

Initially, we note that, because the juvenile made no request for a required finding of not guilty, we review his insufficient evidence claim under the substantial risk of a miscarriage of justice standard. Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). Commonwealth v. Strahan, supra at 929. In determining whether the evidence was sufficient to support the judge's conclusions, we view the evidence at trial in the light most favorable to the Commonwealth, and "determine whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Lodge, 431 Mass. 461, 465 (2000), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). See Commonwealth v. McGovern, supra at 868. We conclude that the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that the juvenile threatened Mrs. F.

There was sufficient evidence to support the judge's finding that the juvenile expressed an intent to commit the threatened crime and an ability to do so in circumstances that would justify apprehension on Mrs. F's part. See Commonwealth v. Sholley, 432 Mass. 721, 725 (2000); Commonwealth v. Robicheau, supra at 183. In making this determination, we consider "the context in which the allegedly threatening [drawing was given to Mrs. F] and all of the surrounding circumstances." Commonwealth v. Sholley, supra. See Commonwealth v. Elliffe, supra at 582 (in assessing its sufficiency, evidence "must...