Commonwealth v. QUINCY Q., A JUVENILE

• Decision Date: 12 January 2001
• Citation: 434 Mass. 859,753 NE 2d 781
• Parties: COMMONWEALTH v. QUINCY Q., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 859

753 NE 2d 781

COMMONWEALTH v. QUINCY Q., a juvenile.

Supreme Judicial Court of Massachusetts, Plymouth.

January 12, 2001.

August 15, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

John T. Ouderkirk, Jr., for the defendant.

Christina L. Crowley, Assistant District Attorney, for the Commonwealth.

Patricia A. O'Neill, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

COWIN, J.

The defendant was indicted as a youthful offender on two charges of forcible rape of a child under the age of sixteen years and two charges of indecent assault and battery of a child under the age of fourteen years. Prior to trial, the defendant filed three motions to dismiss, all of which were denied by a motion judge.¹ At the close of the prosecution's case, the defendant filed a motion for a required finding of not guilty, which the trial judge granted to the extent that the rape charges alleged the use of force. The jury found the defendant not guilty on both charges of rape and one of the charges of indecent assault and battery. The defendant, however, was adjudicated a youthful offender by reason of the remaining charge of indecent assault and battery.

On appeal from that adjudication, the defendant claims error in the following: (1) the motion judge's failure to dismiss the youthful offender indictment under G. L. c. 119, § 54; (2) the admission in evidence of a videotape depicting the complainant's "fresh complaint"; (3) the trial judge's ruling that the complainant was competent to testify; (4) allowing the prosecution to refresh the complainant's memory outside the jury's presence; (5) permitting expert testimony from a physician who had examined the complainant; (6) the admission of various aspects of the testimony of the complainant's father; and (7) the trial judge's instructions to the jury on reasonable doubt. We conclude that the motion judge erred in denying the defendant's motion to dismiss the youthful offender indictment charging indecent assault and battery. We also conclude that the admission of the videotape as evidence of fresh complaint constitutes reversible error. Because of our conclusions with respect to the motion to dismiss and the admission of the videotape, we need not decide whether the defendant's other claims of error, either alone or taken together, would require a new trial; however, we address those claims of error that may arise during a new trial of a delinquency complaint for indecent assault and battery or that raise significant questions that we believe require comment. Accordingly, we reverse the adjudication of the defendant as a youthful offender and remand the matter for further proceedings consistent with this opinion.

1. Background. All the offenses occurred between October 1, 1996, and March 5, 1998, and involved the same complainant, a very young girl. The incidents took place between the time the complainant was three and five years of age; the defendant was fifteen and sixteen years old. There was evidence that, while assisting at his mother's home day care center, the defendant touched the complainant's vagina on approximately ten different occasions. The defendant also had the complainant touch his penis, and told her never to tell anyone. The abuse was revealed in early March, 1998, when the complainant remarked to her father that "she had a big butt crack." A few days later, the complainant's parents asked their daughter about the unusual comment and, during the course of their questioning, she revealed the defendant's misconduct. The next morning, the complainant and her parents met with the defendant's mother to discuss the matter. The parents videotaped the conversation, and the complainant again described the instances of abuse. At trial, the complainant and her parents, among others, testified and the jury viewed an edited version of the videotape. The jury convicted the defendant of indecent assault and battery of a child under the age of fourteen years.

2. Youthful Offender Statute.

a. Indictment. Prior to trial, the defendant filed a motion to dismiss the youthful offender indictment for indecent assault and battery, which was denied. He claimed then, as he does now, that the grand jury lacked sufficient evidence to indict him as a youthful offender under G. L. c. 119, § 54, because no evidence had been presented of "the infliction or threat of serious bodily harm," one of the statutory prerequisites of a youthful offender indictment.² For this reason, the defendant contends that the motion judge erred in denying his motion to dismiss.³ We agree.

In 1996, the Legislature enacted the youthful offender statute, G. L. c. 119, § 54, as amended through St. 1996, c. 200, § 2, permitting prosecutors to proceed by indictment if the following statutory requirements are present: (1) the alleged offense was committed while the individual was between the ages of fourteen and seventeen years; (2) if he were an adult, the offense would be punishable by imprisonment in the State prison (i.e., a felony); and (3) the individual was previously committed to the department of youth services, or the alleged offense involved certain enumerated firearms violations, or it involved "the infliction or threat of serious bodily harm." G. L. c. 119, § 54. See Commonwealth v. Clint C., 430 Mass. 219, 225 (1999). When the prosecution fails to present to the grand jury sufficient evidence to satisfy these requirements, a judge may dismiss the indictment. See id. at 224. (Legislature provided prosecutor with discretion to seek youthful offender indictment "as long as the statutory prerequisites are met").

The label "`[y]outhful offender' refers not to a status necessary before an indictment may be brought by a prosecutor, but to a status that is an outcome of indictment and adjudication." Commonwealth v. Clint C., supra at 222 n.4. There is no requirement that the infliction or threat of serious bodily harm be an element of the crime itself. See id. at 225. However, where a prosecutor seeks a youthful offender indictment relying on "the infliction or threat of serious bodily harm" component of the statute, the conduct constituting the offense must involve the infliction or threat of serious bodily harm. See id.

There was no evidence presented to the grand jury in this case that the conduct constituting the alleged indecent assault and battery involved the infliction or threat of serious bodily harm. The evidence presented was that the defendant touched the complainant's vagina and buttocks and made her touch his penis, but, as the motion judge noted, there was "no evidence that the defendant overtly threatened [the complainant] or that serious bodily injuries were actually inflicted."

Moreover, the touching involved in this case is not sufficiently invasive in nature (as compared to penetration) to create the threat of serious bodily harm. Cf. Commonwealth v. Clint C., supra at 226. While the defendant was alleged to have penetrated the complainant, that conduct supported his indictment for rape (with respect to which he was subsequently acquitted), not indecent assault and battery. It is the touching of the complainant's vagina and buttocks that supports a charge for indecent assault and battery.⁴

We said in Commonwealth v. Clint C., supra,

that "[t]he juvenile's position of authority, the age difference between the juvenile and the victim, and the vulnerability of the victim are sufficient to support a youthful offender indictment." However, that statement was made in the context of an indictment charging statutory rape of a very young child. Those factors, combined with the act of penetration, justified the indictment in that case. Although such factors are also present in this case, they were here combined with a touching that did not involve the infliction or threat of serious bodily harm. Accordingly, the motion judge erred in denying the defendant's motion to dismiss insofar as it related to the sufficiency of the evidence to indict the defendant as a youthful offender for indecent assault and battery. On remand, the prosecutor must proceed by complaint, rather than by indictment. Cf. Commonwealth v. Funches, 379 Mass. 283, 296-297 (1979) (no new trial where Commonwealth had "fair opportunity to offer whatever proof it could assemble").

b. Adjudication. Although we have concluded that the indictment in this case should have been dismissed, because uncertainty may exist, we provide some guidance on the procedures and proof necessary to adjudicate an individual a youthful offender.⁵ Where, as here, "there is a public interest in obtaining a prompt answer to the question, and when the answer to be given is reasonably clear," we need not withhold our views. Commonwealth v. Clint C., supra at 226. See Gurry v. Board of Pub. Accountancy, 394 Mass. 118, 126 (1985).

Recently, in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court of the United States held that a State hate crime statute, which authorized an increase in the maximum prison sentence based on a judge's finding that the defendant acted with the purpose to intimidate because of, inter alia, race, violated the due process clause of the Fourteenth Amendment to the United States Constitution. The Court concluded that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490.

Similar to the New Jersey hate crime statute, the youthful offender statute authorizes judges to increase the punishment for juveniles convicted of certain offenses beyond the statutory maximum otherwise permitted for juveniles, if the requirements set forth in G. L. c. 119, § 54, have been satisfied. See Commonwealth v. Dale D., 431 Mass. 757, 759 (2000) ("A juvenile...