Commonwealth v. Washington W.

• Decision Date: 10 May 2012
• Docket Number: SJC–10970.
• Citation: 462 Mass. 204,967 N.E.2d 615
• Parties: COMMONWEALTH v. WASHINGTON W., a juvenile.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 204

967 N.E.2d 615

COMMONWEALTH

v.WASHINGTON W., a juvenile.

SJC–10970.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Jan. 4, 2012.

Decided May 10, 2012.

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

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

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

The Commonwealth appeals from orders of a judge in the Juvenile Court dismissing two youthful offender indictments charging the juvenile with statutory rape. The judge ordered the dismissal after finding that the juvenile had suffered presumptive and actual prejudice from the “Commonwealth's willful and repeated failure to comply with discovery orders.” We affirm the judge's dismissal of the two indictments.

1. Background. The juvenile has Asperger's Syndrome, as does the complainant. When the juvenile was in the ninth grade and the complainant in the seventh grade, the complainant became friends with the juvenile, and often played at the juvenile's home.¹ On May 7, 2007, after the complainant's mother told her family that she would no longer be the juvenile's aide, the complainant revealed to his parents that he had engaged in various sexual acts with the juvenile that were initiated by the juvenile.

The parents notified the police, and Detective Eric Wade interviewed the parents that day. Three days later, the complainant participated in a Sexual Abuse Intervention Network (SAIN) interview at the Norfolk County district attorney's office, which was recorded and transcribed. On August 7, 2007, 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. Although the complainant had reported sexual acts of penetration that occurred when the juvenile was fifteen years of age, neither the juvenile nor the complainant was charged with statutory rape for those incidents.

On August 13, 2008, the juvenile filed a motion seeking discovery of statistical data concerning the Norfolk County district attorney's prosecution of juvenile sexual assault charges, asking the gender and age of the juveniles and complainants. A Juvenile Court judge denied the motion without prejudice. But after our decision in Commonwealth v. Bernardo B., 453 Mass. 158, 900 N.E.2d 834 (2009), the juvenile filed a renewed discovery motion that was allowed in part on March 30, 2009, and the Commonwealth was ordered to produce the discovery no later than May 4, [462 Mass. 206]2009.² The Commonwealth moved for reconsideration of that order, which was denied, and a new deadline of June 4, 2009 was set for production of the ordered discovery. On June 2, the Commonwealth moved for relief from the order, claiming that “compliance would be overly burdensome in terms of time, financial cost, and resources.” The judge denied the motion, but extended the deadline to produce the statistical data to June 19, 2009. On June 12 the Commonwealth filed a petition for interlocutory review of the discovery order in this court, and the judge on June 18 stayed the order. On June 25, 2010, we issued our decision in Commonwealth v. Washington W., 457 Mass. 140, 149, 928 N.E.2d 908 (2010), affirming the discovery order with minor modification.

In December, 2009, while the interlocutory appeal was pending, the Commonwealth indicted the juvenile as a youthful offender for the same two incidents of rape of a child under the age of sixteen alleged in two of the delinquency complaints, and nol prossed those two delinquency complaints. On March 2, 2010, the juvenile moved to dismiss the youthful offender indictments. The judge granted the juvenile's motion to dismiss the indictments without prejudice on July 2, 2010. The judge found that the grand jury were not presented with sufficient evidence that “the offense involves the infliction or threat of serious bodily harm,” which in the circumstances of the case was required to obtain a youthful offender indictment under G.L. c. 119, § 54. The judge also found that “sufficient evidence was withheld from the grand jury to so seriously taint the proceedings as to warrant dismissal of the indictments.” ³ The two pending delinquency complaints were not affected by this order of dismissal.

At a status hearing on July 8, 2010, the juvenile filed a renewed motion for the statistical discovery addressed by this court in Commonwealth v. Washington W., supra. The prosecutor represented that the required discovery would be produced at the next scheduled court date. The next scheduled court date was August 12, 2010, and a hearing was conducted that day on the Commonwealth's motion for reconsideration of the dismissal of the indictments and on the juvenile's renewed motion for statistical discovery. The Commonwealth failed to produce the promised statistical discovery, and informed the judge that it no longer considered itself obligated to provide the discovery because the youthful offender indictments had been dismissed and the Commonwealth intended to file a nolle prosequi on the delinquency complaints. The judge noted that the Commonwealth's motion for reconsideration indicated that the Commonwealth was still affirmatively pursuing prosecution of the indictments, and ordered the Commonwealth to produce all discovery no later than August 31, 2010. The judge scheduled a hearing on September 1, 2010, to review the Commonwealth's compliance.

At the hearing on September 1, the Commonwealth filed a nolle prosequi on the delinquency complaints and informed the judge (who was not the judge who had ordered the discovery) that the Commonwealth did not have to produce any discovery because the youthful offender indictments had been dismissed and the delinquency complaints had been nol prossed. The judge rescheduled the matter for October 7, to be heard by the judge who had issued the discovery order.

On October 5, the juvenile moved to dismiss the youthful offender indictments with prejudice because of the Commonwealth's failure to produce the ordered discovery. On that date the judge denied the Commonwealth's motion for reconsideration, but the denial was not entered on the docket until October 7.

On October 7, the prosecutor informed the judge that he had the required discovery with him, but refused to produce it, arguing that he no longer was obligated to produce the discovery because the indictments had been dismissed. He conceded that the statistical information ordered discovered did not contain any personal or sensitive information, but declined to accept a protective order that would prohibit disclosure to any nonparty and limit the use of this data to the juvenile's preparation, exploration,and mounting of a selective prosecution defense. The judge allowed the juvenile's motion to dismiss with prejudice on October 7, and issued a memorandum of decision and order nunc pro tunc on November 15, 2010, setting forth her findings of facts and reasons for the dismissal with prejudice. In short, the judge found that the Commonwealth was pursuing its prosecution of the juvenile for the alleged sexual assaults that were the subject of the youthful offender indictments, because it appealed from both her July 2 order dismissing the indictments without prejudice and her October 7 order of dismissal with prejudice. She found that the Commonwealth had refused to provide the discovery she had ordered be produced, and that the refusal was “deliberate, willful and repetitive.” The judge found that the Commonwealth's “egregious” conduct “gives rise to a determination of presumptive prejudice and warrants dismissal.” The judge also found that the “prolonged and repeated failure of the Commonwealth to provide the statistical information” caused the juvenile “actual prejudice” because it denied him the opportunity to obtain the information necessaryto “assess, explore and mount a claim [of] selective prosecution.”

2. Discussion. The Commonwealth appeals from the judge's order of July 2 dismissing the youthful offender indictments without prejudice (as well as the October 5 denial of its motion for reconsideration), and from her order of October 7 dismissing the indictments with prejudice. We address first the July 2 dismissal without prejudice.

a. July 2 order dismissing the youthful offender indictments without prejudice. We briefly summarize the evidence before the grand jury that returned the youthful offender indictments. The grand jury heard only the testimony of Detective Wade. Wade testified about his interview of the complainant's parents and read to the grand jury his report of the SAIN interview, which he observed through a one-way mirror. Although the SAIN interview was videotaped and transcribed, neither the videotape nor the transcript was made available to the grand jury.

Wade testified that the parents told him that their son had told them that the juvenile “would push his pants down and then push him onto the ground and he would put his penis in his [anus].” The complainant told his parents that the juvenile had instructed him not to tell anyone. When the parents asked their son why he had not said anything to them, he said “he was afraid to.”

Wade also read to the grand jury his report of the SAIN interview of the complainant, which contained the following information:

1. The complainant was forced by his mother into a friendly relationship with the juvenile.

2. The complainant was “sexually harassed” by the juvenile.

3. The juvenile would try to put his penis in the complainant's anus, and did this about fifteen times.

4. The juvenile would stand behind the complainant, pull down his pants and underwear, “and then h...