Commonwealth v. Wash. W

• Decision Date: 25 June 2010
• Docket Number: SJC-10506.
• Citation: 928 N.E.2d 908,457 Mass. 140
• Parties: COMMONWEALTHv.WASHINGTON W., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 140
928 N.E.2d 908

COMMONWEALTH
v.
WASHINGTON W., a juvenile.

SJC-10506.

Supreme Judicial Court of Massachusetts,
Suffolk.

Argued March 2, 2010.
Decided June 25, 2010.

928 N.E.2d 909

COPYRIGHT MATERIAL OMITTED

928 N.E.2d 910

Alexei Tymoczko, Assistant District Attorney (David A. Omiunu, Assistant District Attorney, with him), for the Commonwealth.

Kenneth M. Resnik (Patricia L. Garin with him), Boston, for the juvenile.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

We are asked to determine whether a judge in the Juvenile Court abused his discretion in granting discovery to the juvenile, who sought information relevant to his potential claim for selective prosecution based on sexual orientation. We conclude that the judge acted within his discretion in granting discovery, although we limit the discovery that should be permitted in this circumstance.

1. Background. Beginning in September or October of 2006, the juvenile and the complainant-both of whom have been diagnosed with Asperger's Syndrome-allegedly began to have a series of sexual encounters.¹ At that time, the juvenile was fifteen and the complainant was thirteen. These encounters continued through January 28, 2007, the juvenile's sixteenth birthday, and ended shortly thereafter, on or about March 31, 2007.

The complainant's parents learned of these incidents, and his father made a report to the Canton police department. The juvenile was charged with two delinquency complaints of rape of a child (statutory rape), both occurring in the month following his sixteenth birthday, and two delinquency complaints of indecent assault and battery on a child under the age of fourteen, alleged to have occurred between October 1, 2006, and March 31, 2007. The complainant was not charged with any crime. The juvenile filed a motion for discovery of statistical data concerning the prosecution of statutory rape charges in Norfolk County involving juveniles engaged in heterosexual conduct and those engaged in homosexual conduct. A Juvenile Court judge denied the motion without prejudice, and the juvenile filed a motion to dismiss, arguing, among other things, selective prosecution based on sexual orientation. After this court's decision in Commonwealth v. Bernardo B., 453 Mass. 158, 900 N.E.2d 834 (2009), a different Juvenile Court judge denied the juvenile's motion to dismiss with prejudice, except for the portion relating to selective prosecution, which the judge denied without prejudice. In response, the juvenile filed a renewed motion for statistical data, which that judge granted in part.² The Commonwealth

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filed a petition for relief pursuant to G.L. c. 211, § 3. A single justice of this court reserved and reported the case to the full court.³

2. Selective prosecution. The Commonwealth argues that the juvenile is not entitled to the discovery he seeks because (1) selective prosecution is only applicable where the prosecution implicates a protected class; (2) the juvenile did not make a threshold showing of selective prosecution; (3) the discovery order is an intrusion into juveniles' and complainants' privacy; and (4) Massachusetts courts do not recognize sexual orientation as a protected class. For the reasons below, and based on circumstances particular to the Juvenile Court and the current procedural status of the case, we need not address all these issues at this time. We hold that the judge did not abuse his discretion, and limited discovery, as detailed below, should be allowed.

The district attorney has “wide discretion in determining whether to prosecute an individual,” and prosecutorial decisions are presumed to be in good faith. Commonwealth v. Bernardo B., 453 Mass. 158, 167, 900 N.E.2d 834 (2009), quoting Commonwealth v. Clint C., 430 Mass. 219, 228, 715 N.E.2d 1032 (1999). While some selectivity is permissible in criminal law enforcement, the Federal and Massachusetts Constitutions guarantee that the government will not proceed against an individual based on “an unjustifiable standard such as race, religion, or other arbitrary classification.” Commonwealth v. King, 374 Mass. 5, 20, 372 N.E.2d 196 (1977), quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). See Pariseau v. Brockton, 135 F.Supp.2d 257, 263 (D.Mass.2001), quoting Hayden v. Grayson, 134 F.3d 449, 453 n. 3 (1st Cir.1998) (stating that “the Equal Protection Clause safeguards not merely against invidious classifications such as race, but also against ‘any arbitrary classification of persons for unfavorable governmental treatment’ ”). Therefore, “judicial scrutiny is necessary to protect individuals from prosecution based on arbitrary or otherwise impermissible classification.” Commonwealth v. Bernardo B., supra at 168, 900 N.E.2d 834.

“ Because we presume that criminal prosecutions are undertaken in good faith, without intent to discriminate, the defendant bears the initial burden of demonstrating selective enforcement.” Commonwealth v. Franklin, 376 Mass. 885, 894, 385 N.E.2d 227 (1978). “In order to meet this burden, the defendant must present evidence which raises at least a reasonable inference of impermissible discrimination.... The defendant must show that a broader class of persons than those prosecuted has violated the law, ... that failure to prosecute was either consistent or deliberate, ... and that the decision not to prosecute was based on an impermissible classification such as race, religion, or sex.” (Citations omitted.) Id. See Commonwealth v. Lora, 451 Mass. 425, 437, 886 N.E.2d 688 (2008). Cf.

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United States v. Armstrong, 517 U.S. 456, 463-465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (requiring that defendant present “clear evidence” that prosecutor acted against particular class of persons so as to deny them equal protection, showing that prosecution “had a discriminatory effect and that it was motivated by a discriminatory purpose”). The burden is “sufficiently rigorous that its imposition does not unnecessarily intrude on the exercise of powers constitutionally delegated to other branches of government. Balance is therefore important.” Commonwealth v. Lora, supra at 445, 886 N.E.2d 688. Once a juvenile makes this showing, “the Commonwealth must rebut that inference or suffer dismissal of the underlying complaint.” Commonwealth v. Franklin, supra at 895, 385 N.E.2d 227.

Here, the Commonwealth argues that the threshold issues in this claim of selective prosecution are whether an allegation of selective prosecution must be based on discriminatory treatment of someone who is a member of a protected class and, accordingly, whether sexual orientation is a protected class in Massachusetts. These are constitutional issues that we need not reach because there is another, nonconstitutional basis on which this case can be decided. See Brackett v. Civil Serv. Comm'n, 447 Mass. 233, 242, 850 N.E.2d 533 (2006); Bynum v. Commonwealth, 429 Mass. 705, 710, 711 N.E.2d 138 (1999). ⁴ That question is whether the juvenile has been foreclosed from developing a factual basis to support his allegations. Our inquiry is accordingly limited to whether discovery is warranted at this point.

In order to make the requisite showing of selective prosecution in a motion to dismiss, a defendant may introduce statistical evidence demonstrating that similarly situated juveniles are treated differently by the prosecutor on the basis of impermissible categorizations. Commonwealth v. Lora, supra at 440, 886 N.E.2d 688. However, there are no public records available from which the juvenile may satisfy his burden. Juvenile Court records are generally closed to public inspection, see G.L. c. 119, § 60A, and there are strong policy reasons for not permitting this juvenile to have unfettered access to all Juvenile Court records in Norfolk County. The prosecutor's office is therefore the most reliable source of information from which to develop the necessary statistical evidence. Because the production of such evidence burdens the Commonwealth, the juvenile must move under Mass. R.Crim. P. 14(a)(2), as appearing in 442 Mass. 1518 (2004), for “material and

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relevant” pretrial discovery from the Commonwealth, and a “threshold showing of relevance” is required in order to be entitled to the information. Commonwealth v. Bernardo B., supra at 169, 900 N.E.2d 834. See Commonwealth v. Betances, 451 Mass. 457, 462 n. 6, 886 N.E.2d 679 (2008).

The juvenile requested the following discovery:

“The number of cases reported to the Norfolk County District Attorney in the last five years of statutory rape and/or indecent assault and battery where the accused and the complaining witness were under 17 years old, including the age and sex of the accused and the complaining witness.

“The number of cases charged in the last five years in Norfolk County of statutory rape and/or indecent assault and battery where the accused and the complaining witness were under 17 years old, including the age and sex of the accused and the complaining witness.

“The number of cases reported to the Norfolk County District Attorney in the last five years of sexual assaults of a person-including but not limited to Rape, Rape of a Child, Statutory Rape, Assault with Intent to Commit Rape, and Indecent Assault and Battery-including the sex of the accused and the sex of

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