Two Juveniles v. Com.

• Citation: 412 N.E.2d 344,381 Mass. 736
• Parties: TWO JUVENILES v. COMMONWEALTH (and a companion case 1 ).
• Decision Date: 06 November 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 344

412 N.E.2d 344

381 Mass. 736

TWO JUVENILES v. COMMONWEALTH (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 10, 1980.

Decided Nov. 6, 1980.

Daniel F. Featherston, Jr., Boston, for one juvenile.

Franklin H. Levy, Boston, for a second juvenile.

Constance L. Rudnick, Boston (Richard A. Gargiulo, Boston, with her), for a third juvenile.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS and LIACOS, JJ.

HENNESSEY, Chief Justice.

This is an appeal from an order of a single justice dismissing petitions for extraordinary relief brought by the petitioners pursuant to G.L. c. 211, § 3. The petitioners, whose cases were ordered transferred from the Juvenile Session, Municipal Court of Brookline, to the Superior Court pursuant to G.L. c. 119, § 61, thus challenge the jurisdiction of the Superior Court to try them as adults. They contend that interlocutory relief under G.L. c. 211, § 3, is appropriate in such criminal cases for two reasons: (1) the ordinary appellate procedure following conviction is insufficient protection for the juveniles' substantive rights, which would be irremediably damaged in their public trial as adults, and (2) these cases include a question of proper transfer practice and thus involve the working relation between two departments of the Trial Court (specifically, the proper standard of review by the Superior Court when considering a motion to dismiss in such cases). The single justice declined to review the evidence presented in the transfer hearing after concluding that interlocutory relief under G.L. c. 211, § 3, was not appropriate in this situation. We prefer not to examine the appropriateness of relief under G.L. c. 211, § 3, however, since we conclude that the transfer of these juveniles to adult proceedings by a Brookline Municipal Court judge (hereinafter referred to as the judge) was warranted on the evidence before him and complied with the requirements established by both the Legislature and this court. Since we thus find no occasion for relief, we do not determine whether, if there had been error in the transfer proceeding, this would be an appropriate case in which to exercise our extraordinary powers under G.L. c. 211, § 3, to afford interlocutory relief. Accordingly, we affirmed the dismissal of the petition by an order issued by the full court on September 18, 1980, and also stated that an opinion or opinions would follow in due course. ²

On May 19, 1979, complaints were issued pursuant to G.L. c. 119, §§ 54, 55, in the Juvenile Session of the Municipal Court of Brookline charging each juvenile with being a delinquent child by reason of murder. The Commonwealth moved to transfer the cases from the Juvenile Session to the Superior Court, pursuant to G.L. c. 119, § 61. At the probable cause determination ³ held on July 5 and 18, 1979, there was testimony as to the following facts. During the evening of May 18, 1979, Juvenile A (then age sixteen years, six months), Juvenile B (then age sixteen years, five months), and Juvenile C (then age fifteen years, six months) were gathered on a street corner in Brookline with James Corbett (an adult). There had been some limited drinking of beer and several earlier confrontations with a motorcycle police officer. During the evening there was also a confrontation with some college-age males during which a knife was exhibited. At 11:30 P.M. an Iranian college student and a friend were walking down Beacon Street and were confronted by the three juveniles and Corbett. The four positioned themselves on the sidewalk so that the Iranian youths had to walk between them. After some words were spoken, the taller Iranian youth ran away from the scene and was chased down the road by Corbett. The three juveniles then circled the smaller youth (one Ali Majidi) and attacked him. Majidi was hit with a metal bar, kicked, and beaten to the ground with fists. While lying on the ground Majidi was repeatedly stabbed with Juvenile A's knife, resulting in three puncture wounds to the front and three to the back. As a result of screams from witnesses the three fled, leaving Majidi on the sidewalk bleeding. A little more than one hour later, Majidi was pronounced dead after being taken to a hospital. The three were subsequently arrested.

Probable cause was found and, on October 31 and November 1, 1979, the second part of the transfer process, the transfer determination, was held before the same judge who had heard the evidence of probable cause. As at the probable cause stage, the juveniles were represented by counsel, and a court reporter was present. Juveniles B and C both testified. Based on this evidence, as well as other evidence pertaining to the background of each juvenile, the judge entered findings of fact and orders to dismiss the juvenile complaints and cause criminal complaints to be issued pursuant to G.L. c. 119, § 61. On November 26, 1979 the grand jury returned indictments as to each defendant on each charge (murder and two related counts of assault and battery by means of a dangerous weapon). The defendants then moved to dismiss in the Superior Court alleging that, since the facts found by the Municipal Court judge failed to meet the standards established by the Legislature and this court, the Superior Court therefore lacked jurisdiction. After reviewing the evidence, a judge of the Superior Court denied the motion to dismiss and entered written findings supporting his order.

The defendants then filed petitions for relief under G.L. c. 211, § 3, in the Supreme Judicial Court for Suffolk County. The petitions were heard by a single justice, who denied relief and dismissed the petitions. A motion for rehearing and reconsideration was denied, and the case is now before us on the petitioners' appeal from the orders of the single justice. We first review the cases and statutes which set forth the minimum findings necessary to support a decision to transfer such cases. Following this we examine the evidence presented relative to each defendant, and the findings of the Municipal Court judge, all of which lead us to conclude that there has been no error.

1. Requirements of G.L. c. 119, § 61, and Court Guidelines.

In order for a juvenile between his fourteenth and seventeenth birthdays to be tried as an adult, it must first be established that the juvenile falls into one of two categories: (1) he must be a child who previously has been committed to the care of the Department of Youth Services and who is now charged with having committed an offense which, if he were an adult, would be punishable by imprisonment in the State prison; or (2) he must be charged with having committed an offense involving the infliction or threat of serious bodily harm. G.L. c. 119, § 61. In order to transfer the child for adult proceedings, not only must at least one of the two preceding conditions have been satisfied but also, of importance here, the judge must enter the following two written findings based upon clear and convincing evidence: (1) the child presents a significant danger to the public (this danger being demonstrated by the nature of the offense and the child's past record of delinquent behavior, if any); and (2) the child is not amenable to rehabilitation as a juvenile. G.L. c. 119, § 61. The judge must also consider at least the five factors denominated (a) through (e) in G.L. c. 119, § 61, ⁴ and may find support for the two critical written findings in these or in the similar factors presented in our guidelines. See A Juvenile v. Commonwealth, 370 Mass. 272, 281-283, 347 N.E.2d 677 (1976). Neither the statute nor our cases, however, require the judge to make a written finding concerning any particular one of these individual factors.

Our cases supplement the statutory requirements. A judge who makes the two written findings required by G.L. c. 119, § 61, must also make subsidiary findings indicating the basis for his conclusions concerning the two statutorily required findings. A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976). These subsidiary findings may show consideration of the five enumerated statutory factors and the factors identified in our guidelines, id. at 282 n.14, 347 N.E.2d 677, although any single factor will rarely, if ever, be controlling. Cf. A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976).

The petitioners urge us to require written findings covering each enumerated factor the court is directed to consider under G.L. c. 119, § 61. They argue that this will ensure that each area required to be considered will indeed be considered. We decline to adopt such a compulsory "checklist" approach. Even though the statute requires that the two critical findings be written, its only affirmative requirement concerning the enumerated factors is that they be considered. We think that in differentiating between the two critical findings and the five enumerated factors in such a manner the Legislature indicated its concern that courts making transfer determinations have available to them a broad range of evidence from a wide variety of sources, the enumerated factors identifying only the minimum evidence which must be considered, if available. This concern is further indicated by the statutory preface "the court shall then consider, but shall not be limited to, evidence of the following factors." G.L. c. 119, § 61, second par.

Our previous cases also reflect this concern. "There is no specific requirement that a judge weigh these factors in a certain manner or achieve some predesigned balance. Any factor which bears on the protection of the public and the amenability of the child to treatment as a juvenile may be considered." A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976). "(I)n the relatively few cases in the juvenile courts in which the transfer question arises,...