Newmexico v. Commonwealth

• Decision Date: 10 October 2017
• Docket Number: SJC-12152
• Citation: 82 N.E.3d 1036,478 Mass. 89
• Parties: N.M., a juvenile v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

478 Mass. 89
82 N.E.3d 1036

N.M., a juvenile
v.
COMMONWEALTH.

SJC-12152

Supreme Judicial Court of Massachusetts, Suffolk..

Argued March 7, 2017.
Decided October 10, 2017.

Ronald E. DeRosa, Assistant District Attorney, for the Commonwealth.

Robert E. McDonnell, Boston, Vanessa M. Brown, & Joshua Silverstein, for Youth Advocacy Division of the Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.¹

BUDD, J.

478 Mass. 89

Here we consider whether a juvenile, who has been indicted as a youthful offender, is entitled as of right to interlocutory review of a denial of a motion to dismiss that indictment. We also consider whether the youthful offender indictment in this case was sufficiently supported by probable cause. We conclude that a juvenile is not entitled to G.L.c. 211, § 3, interlocutory review as a matter of right in these circumstances. Nevertheless, we exercise our discretion to reach the merits of the petition and

478 Mass. 90

conclude that the youthful offender portion of the indictment was not sufficiently supported by probable cause because the charged conduct did not involve

82 N.E.3d 1039

the infliction or threat of serious bodily harm.²

Background. The following facts are taken from the testimony and exhibits presented to the grand jury. In December, 2014, or January, 2015, the complainant disclosed to her mother that her female cousin, the juvenile, had been sexually touching her for the last few years, starting when the complainant was age five or six and the juvenile was age fourteen or fifteen. The girls attended weekly dance classes together and afterward would spend time in the juvenile's bedroom napping or watching movies, away from adult supervision. The complainant told her mother that in this setting the juvenile had "kissed" her on her breasts, "touched" and "inserted [a] finger" in her vagina, and "instructed" her to touch the juvenile's vagina. The complainant's mother reported the sexual activity to police in May, 2015.

Investigators conducted a sexual abuse intervention network interview,³ during which time the complainant shared similar descriptions of the activities.⁴ The complainant reported that the juvenile would sometimes discuss her sex life with the complainant and would "explain what she was doing" to the complainant when she touched the complainant. Sometimes the sexual touching "kind of hurt" because the complainant "was littler than [the juvenile]." Sometimes the complainant "did want to do it," but other times she (in her mind) did not but nevertheless "felt like [she] had to." In response to a question from a member of the grand jury, a detective testified that the juvenile had made no threats to the complainant, and that the juvenile and the complainant "care[d] a lot" about each other. The juvenile told the complainant to tell her to stop the touching if it hurt.

478 Mass. 91

A grand jury returned a youthful offender indictment against the juvenile, charging her with rape of a child.⁵ See G.L.c. 119, § 54 ; G.L.c. 265, § 23. The juvenile moved to dismiss the indictment, citing insufficient evidence to establish probable cause to believe that the alleged conduct involved the infliction or threat of serious bodily harm. After the denial of that motion, she petitioned for review by a single justice of this court pursuant to G.L.c. 211, § 3. The single justice denied the petition, and the juvenile appealed.

82 N.E.3d 1040

Discussion. 1. Interlocutory review. In general, "there is no right to interlocutory review of the denial of a motion to dismiss pursuant to G.L.c. 211, § 3." Flood v. Commonwealth, 465 Mass. 1015, 1016, 990 N.E.2d 73 (2013). The court's extraordinary power of superintendence under G.L.c. 211, § 3, "will not ordinarily be exercised to review interlocutory rulings in criminal cases, since the rights of criminal defendants are generally fully protected through the regular appellate process." Costarelli v. Commonwealth, 374 Mass. 677, 679, 373 N.E.2d 1183 (1978). See Jackson v. Commonwealth, 437 Mass. 1008, 1009, 770 N.E.2d 469 (2002) ; Ventresco v. Commonwealth, 409 Mass. 82, 83-84, 565 N.E.2d 404 (1991). Where truly extraordinary circumstances are present, however, a defendant may obtain review by "demonstrat[ing] both a substantial claim of violation of [her] substantive rights and irremediable error, such that [she] cannot be placed in statu quo in the regular course of appeal." Morrissette v. Commonwealth, 380 Mass. 197, 198, 402 N.E.2d 492 (1980). "In such a case, [a] single justice may decide the issues presented, report the matter to the full court, ... or authorize an interlocutory appeal to be taken to the Appeals Court for a decision on the merits" (citation omitted). Forlizzi v. Commonwealth, 471 Mass. 1011, 1012, 28 N.E.3d 1166 (2015).

Here, the juvenile claims a right to interlocutory review of the denial of her motion to dismiss under G.L.c. 211, § 3, because, she argues, if the Commonwealth proceeds against her as a youthful offender, she will lose the protections afforded by juvenile proceedings. These include privacy and confidentiality considerations,

478 Mass. 92

such as having the record and proceedings shielded from public access. See, e.g., G.L.c. 119, §§ 60A, 65. See also Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 212-213 & n.8, 680 N.E.2d 92 (1997). Loss of the rights afforded by the protective juvenile cloak, she argues, cannot be remedied in the ordinary appellate process because, once her identity is disclosed, there would be no way to regain her privacy; if she is convicted and sentenced as an adult, she would be sent to an adult prison; and the ability to discipline her as a child would be lost. See Felix F. v. Commonwealth, 471 Mass. 513, 514 n.2, 31 N.E.3d 42 (2015).

We acknowledge that the ordinary appellate process will not restore the protective nature of juvenile proceedings if it is later determined that the juvenile has been erroneously tried as a youthful offender. Nonetheless, her claims are not akin to a "right not to be tried," a right we have protected by recognizing a very limited exception to the general rule against interlocutory appeal for a petition for relief from the denial of a motion to dismiss on double jeopardy grounds. See Forlizzi, 471 Mass. at 1013, 28 N.E.3d 1166. "In that circumstance, because the double jeopardy right is a right not to be tried, we have held that ‘appellate review of [the denial of the motion to dismiss] after trial and conviction would not provide adequate relief if the defendant were to prevail....’ " Flood v. Commonwealth, 465 Mass. 1015, 1016, 990 N.E.2d 73 (2013), quoting McGuinness v. Commonwealth, 423 Mass. 1003, 1004, 667 N.E.2d 818 (1996). See also Gangi v. Commonwealth, 462 Mass. 158, 160 n.2, 967 N.E.2d 135 (2012) (right not to be tried on sexually dangerous person petition). Otherwise, we have "consistently rejected attempts to obtain interlocutory review as a matter of right under G.L.c. 211, § 3, of denials of motions to dismiss on other bases that defendants have attempted to analogize to double jeopardy claims." Soucy v. Commonwealth, 470 Mass. 1025, 1026, 26 N.E.3d 194 (2015), citing Grand-Pierre v. Commonwealth, 461 Mass. 1003, 1004, 958 N.E.2d 833 (2011) (challenge to

82 N.E.3d 1041

constitutionality of statute under which defendant was charged), Garden v. Commonwealth, 460 Mass. 1018, 1019, 957 N.E.2d 222 (2011) (statute of limitations claim), Fitzpatrick v. Commonwealth, 453 Mass. 1014, 1015, 904 N.E.2d 426 (2009) (jurisdictional claim), Bateman v. Commonwealth, 449 Mass. 1024, 1024-1025, 868 N.E.2d 606 (2007) (challenge to sufficiency of evidence before grand jury), Cousin v. Commonwealth, 442 Mass. 1046, 1046, 817 N.E.2d 767 (2004) (speedy trial claim), King v. Commonwealth, 442 Mass. 1043, 1044, 817 N.E.2d 757 (2004) (claim of preindictment delay), and Jackson, 437 Mass. at 1009, 770 N.E.2d 469...