A Juvenile v. Com.

• Decision Date: 05 May 1980
• Citation: 380 Mass. 552,405 N.E.2d 143
• Parties: A JUVENILE v. COMMONWEALTH et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 143

405 N.E.2d 143

380 Mass. 552

A JUVENILE v. COMMONWEALTH et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 9, 1980.

Decided May 5, 1980.

Brook K. Baker, Boston (Clyde D. Bergstresser, Boston, with him), for plaintiff.

Daniel C. Mullane, Asst. Dist. Atty., for the Com.

Roberta Thomas Brown, Asst. Atty. Gen., for Superior Court.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

A juvenile, as petitioner, on July 2, 1979, applied to a single justice of this court to use the court's supervisory powers, G.L. c. 211, § 3, to stay his trial in the Superior Court, county of Suffolk, set to begin that day, on charges of raping a child under the age of sixteen (G.L. c. 265, § 22A). He contended that the trial would be unlawful and ultimately futile because of certain infirmities in the procedure by which his case was ordered transferred from the Boston Juvenile Court to the Superior Court, to be handled there as if the petitioner were an adult (G.L. c. 119, § 61); he contended also that the trial should be aborted because he had been denied his constitutional right to a speedy trial. As relief (although not specifically stated in his application) he sought dismissal of the indictment and a decision that he was free of any form of prosecution for the alleged incident of rape. The single justice stayed further proceedings in the Superior Court and, after the parties had settled a statement of agreed facts, reserved and reported the matter to the full court.

From the statement of facts we learn the following. On May 7, 1976, the petitioner was complained of in the Boston Juvenile Court for delinquency, in that on May 1, 1976, he had forced sexual intercourse upon a child under sixteen. ² The petitioner was then in the fourteen-to-seventeen year class he was sixteen years, five months old, having been born on December 16, 1959. On motion for transfer to the Superior Court, the first part of the transfer process an inquiry into probable cause was conducted on June 30, 1976. There was testimony tending to prove that the petitioner on May 1, 1976, had raped the victim, a girl five years old, at knife-point, and left her bleeding in a hallway. The special justice found that probable cause existed.

On July 14, 1976, a hearing was held on the question of transfer. In the interim clinical evaluations of the petitioner had been made on the justice's order. Received at the hearing were reports from the court clinic psychiatrist, the probation department, the Department of Youth Services (DYS), and the Boston Juvenile Court clinic. The justice heard from the petitioner's mother, two family friends, and the director of a METCO program in which the petitioner was participating. Finally there was testimony from the person (and her supervisor) responsible for court liaison with DYS. On July 28, 1976, the justice entered his findings and order, stated to be on clear and convincing evidence, with the findings that "the (petitioner) poses a serious threat to the public" and that he "cannot be rehabilitated within the juvenile justice system." (The text of the findings and order appears herein at note 10 and will be discussed below.)

Accordingly, the juvenile complaint was dismissed and a criminal complaint issued, and on September 13, 1976, the grand jury found an indictment under G.L. c. 265, § 22A, to which, on arraignment November 9, 1976, the petitioner pleaded not guilty. On November 29, 1976, the petitioner moved (with a formal affidavit) in Superior Court to dismiss the indictment under G.L. c. 277, § 47A, on the ground that the "opinion and order" of transfer violated the standards announced in A Juvenile v. Commonwealth, 370 Mass. 272, 347 N.E. 2d 677 (1976).

The motion was not heard until August 9, 1977. On September 8, 1977, a judge of the Superior Court issued his "findings and order" stating that the transfer order had inadequate subsidiary findings, and "remanding" the case to the Boston Juvenile Court for the inclusion of subsidiary findings.

This Superior Court order reached the Boston Juvenile Court but was not acted on. On December 4, 1978, the petitioner filed a second or renewed motion to dismiss the indictment, pointing out that fourteen months had elapsed since the remand. The motion came on before a second Superior Court judge who on December 21, 1978, directed the parties to get in touch with the juvenile court special justice who had made the transfer order. The assistant district attorney wrote to the justice on January 12, 1979. That justice on February 14, 1979, issued findings and order similar to those of July 28, 1976, except for an addendum to the sixth subsidiary finding (see note 14 below). More delay occurred because of an omission to send a copy of the February 14 paper to the petitioner's attorney. As soon as the attorney learned of it, he on May 10, 1979, filed in Superior Court a motion to suppress the further finding. He contended that, as the original juvenile complaint was dismissed pursuant to G.L. c. 119, § 61, when the transfer order was made, there was nothing on which a further finding could attach. After hearing on the motion to suppress as well as the two motions to dismiss the indictment, another judge of the Superior Court denied all three motions, and set the trial for July 2, 1979. (It is stipulated that both sides have been ready for trial since August 9, 1977, the date of remand.) The judge declined to report the case to this court pursuant to G.L. c. 278, § 30A (since repealed; see now Mass.R.Crim.P. 34, --- Mass. --- (1979)). As noted above, application to the single justice was made on July 2, 1979.

Questions are put to us about the appropriateness of invoking this court's supervisory power in the present circumstances; the correctness of the ruling denying the motions to dismiss the indictments which had attacked the underlying transfer orders; and the claim of deprivation of speedy trial. We shall hold: (1) The case is a proper one for consideration under G.L. c. 211, § 3. (2) Both the original and supplemental findings of the juvenile court were insufficient by reason of gross ambiguity to support a transfer order. That court should be given a further opportunity to attempt to correct the findings. (3) Especially in the light of this disposition, the question of speedy trial may be passed over.

1. Short of persuading the judge of the Superior Court to report to an appellate court his denial of the motions to dismiss the indictment, the petitioner had no immediate means in the normal course of getting that order reviewed: it was interlocutory in character, and not within G.L. c. 278, § 28E, which, in the converse situation of an order allowing a motion to dismiss an indictment, grants the Commonwealth a right of appeal. (See also Mass.R.Crim.P. 15(b)(1), --- Mass. --- (1979).) Hence the petitioner's resort to our supervisory power. On the petitioner's view, he should be spared the expense and anxiety of a trial because a conviction would ultimately have to be upset without further recourse by the Commonwealth against him. That prospect, standing alone, might not suffice to justify an exercise of the § 3 power. Cf. A Juvenile v. Commonwealth, 375 Mass. 104, --- ^a, 374 N.E.2d 1351; Commonwealth v. Cavanaugh, 366 Mass. 277, 279, 317 N.E.2d 480 (1974). Here, however, we have a question of proper transfer practice, involving the working relation between two departments of the Trial Court. This calls peculiarly for supervision and settlement by us, and should not await some fortuitous opportunity of report or ordinary appeal. See A Juvenile v. Commonwealth, 370 Mass. 272, 273, 347 N.E.2d 677 (1976); County Comm'rs of Bristol v. Judges of Probate of Bristol, 338 Mass. 738, 157 N.E.2d 245 (1959). The single justice thought a § 3 proceeding appropriate (he pointed out that the case raised issues said to be common to other cases involving proceedings against juveniles). We agree.

2. "In a criminal case, any defense or objection based upon defects in the institution of the prosecution or in the complaint or indictment" including "a failure to show jurisdiction in the court or to charge an offense" may be raised by motion under G.L. c. 277, § 47A, and it was under that section that the petitioner made his motion and renewed motion to dismiss the indictment herein. ³ We have the question of the extent to which a judge of the Superior Court (or finally this court) may go behind an indictment valid on its face to reach an antecedent error committed in the proceedings in a juvenile court.

It should be accepted that judges of the Superior Court do not sit as appellate tribunals to review de novo the soundness of decisions made by juvenile court judges to dismiss particular delinquency complaints. ⁴ And in the present case the petitioner did not seek by his motions to attack the nature or extent of the proof received by the juvenile court in the transfer proceeding. ⁵

But it seems not only proper for the Superior Court judges, but obligatory upon them, when a § 47A motion is addressed to the point, to consider whether there has been a material failing in the prescribed steps leading to the issuance of the order of transfer. (Section 47A, as noted, speaks of "defects in the institution of the prosecution.") Our cases indicate that this scrutiny is surely in order for procedure at the juvenile court level that may be offensive to the Constitution (although we have not found such a "defect" in the cases that have reached us). See Stokes v. Commonwealth, 368 Mass. 754, 764, 774-776, 336 N.E.2d 735 (1975) (doctrine of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346), habeas corpus denied sub nom. Stokes v. Fair, 581 F.2d 287 (1st Cir. 1978); Commonwealth v. Roberts, 362 Mass. 357, 369, 285 N.E.2d 919 (1972) (written findings not constitutionally required). Such scrutiny likewise applies to material...