J.H. v. Commonwealth

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SJC-12395
J.H. vs. COMMONWEALTH.
Suffolk. December 7, 2017. - April 12, 2018.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Juvenile Court, Delinquent child. Practice, Criminal, Juvenile
delinquency proceeding, Transfer hearing, Lesser included
offense, Delay in commencement of prosecution. Due Process
of Law, Notice. Notice. Rape.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 3, 2017.
The case was reported by Lenk, J.
Thomas A. Dougherty, III, for the juvenile.
Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.
Afton M. Templin, for Youth Advocacy Division of the
Committee for Public Counsel Service, amicus curiae, submitted a
brief.
KAFKER, J. A single justice of the county court reserved
and reported this case involving the transfer of certain charges
from the Juvenile Court to adult court pursuant to G. L. c. 119,
§ 72A. In September, 2014, juvenile delinquency complaints were
2
issued against the defendant for the crime of rape of a child
with force (three counts) arising out of incidents that occurred
seven years earlier when the defendant was sixteen years old and
the complainant was thirteen years old. Because the defendant
was not "apprehended" according to the statute until after his
nineteenth birthday, he could not be tried in the Juvenile
Court. The judge was faced with discharging the defendant or
transferring the charges to adult court. After a hearing she
dismissed the offenses charged for lack of probable cause but
transferred the lesser included offenses, statutory rape. The
defendant filed a petition for relief in the county court
pursuant to G. L. c. 211, § 3.
In her reservation and report, the single justice posed two
questions to the full court:
"1. Whether G. L. c. 119, § 72A, permits a Juvenile
Court judge, who has dismissed an offense charged for lack
of probable cause, to order a defendant to be tried in an
adult court for lesser included offenses, where the lesser
included offenses are supported by probable cause.
"2. Whether, if the statute so permits, its
application against this defendant would be
unconstitutional for failure to have provided him with
proper notice of the charges pending against him or the
possibility of such a transfer."
We conclude that G. L. c. 119, § 72A, permits a Juvenile
Court judge to transfer lesser included offenses where supported
by probable cause even where lesser included offenses are not
expressly charged. In instances where a judge finds no probable
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cause of the crime charged but does find probable cause of a
lesser included offense, however, the judge must give a
defendant a meaningful opportunity to present evidence and
argument as to why discharge, rather than transfer, of the
lesser included offense is consistent with protection of the
public. We also emphasize that where the charged offense is
rape of a child with force and the lesser included offense is
statutory rape involving consensual sexual relations between
teenagers, the issues presented regarding transfer or discharge
and the protection of the public are quite different.
Here, where the judge did not inform the defendant of her
probable cause rulings on the offenses charged or the lesser
included offenses until her decision on the transfer itself, we
conclude that the defendant was not given a meaningful
opportunity to present evidence and argument why discharge and
not transfer of the statutory rape charges was consistent with
protection of the public. The defendant is therefore entitled
to reopen the transfer hearing in order to present such evidence
and argument. Lastly, we conclude that there is no merit to the
defendant's contention in posthearing briefing that the seven-
year delay in prosecution was done in bad faith.1
1 We acknowledge the amicus brief submitted by the youth
advocacy division of the Committee for Public Counsel Services.
4
1. Background and prior proceedings. In June and July of
2007, the defendant was sixteen years old and the complainant
was thirteen years old. As summarized by the Juvenile Court
judge at the transfer hearing, the complainant described three
incidents in detail, in which she alleged that she and the
defendant engaged in sexual intercourse.
In October, 2007, the investigation was referred to the
Plymouth County district attorney's office. The complainant's
mother advised the district attorney's office that the
complainant did not wish to participate in a prosecution at that
time. As a result, the investigation was closed.
The investigation was reopened in April, 2009, when the
complainant was fifteen years old. At that time, the
complainant agreed to participate in a sexual assault interview.
The complainant again decided not to pursue the matter because
she thought that the defendant "eventually wanted to be with
[her], and at that time [that] is what [she] wanted" and "didn't
want [the defendant] to be in any trouble."
In 2014, the investigation was reopened for the third time,
when the complainant, then twenty years old, presented herself
at the Middleborough police department and indicated a desire to
go forward with the case.
The defendant was not apprehended, for the purposes of
G. L. c. 119, § 72A, until 2014, when he was twenty-three years
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old. Complaints issued in the Plymouth County Division of the
Juvenile Court Department against the defendant for three counts
of rape of a child with force in violation of G. L. c. 265,
§ 22A. The defendant was subsequently arraigned on the
complaints in the Juvenile Court.
In 2016, pursuant to G. L. c. 119, § 72A, a judge in the
Juvenile Court held a transfer hearing. The complainant
testified as described above. After the evidence had closed,
the prosecution conceded that there was insufficient evidence of
force on only one of the charges and sought, for the first time,
a probable cause finding and transfer of the lesser included
offense of rape of a child (statutory rape). The defendant
objected.
In the defendant's argument against transfer, which was
focused on disproving the element of force, defense counsel
objected to the lesser included charge being considered where
the Commonwealth had not charged him with statutory rape. He
argued:
"I don't have a lesser included offense in front of me of
the statutory rape, and this is a probable cause hearing.
And I'm not sure that the [c]ourt can modify the complaints
at this time to include a lesser included offense of
statutory rape. The Commonwealth could have [pleaded] that
but didn't. They could have amended over the last two
years or actually since 2007 but didn't. They elected to
proceed, your Honor, with these particular charges, and I
would argue I think the [c]ourt may be bound by what it has
on the four corners before it."
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At the conclusion of his argument, defense counsel returned
briefly to the issue of statutory rape as a lesser included
offense. He argued that there was no probable cause to support
a finding of statutory rape, and if the judge found that there
was, the judge should nevertheless discharge the defendant and
not cause a criminal complaint to issue, as the defendant and
the complainant were both just teenagers "experimenting with
their sexuality."
Without addressing the objection or otherwise alerting the
defendant that she intended to consider the lesser included
offenses, the judge thereafter issued a decision in which she
found insufficient evidence to establish probable cause for rape
of a child with force on any of the charges but found sufficient
evidence to establish probable cause for statutory rape on all
three charges. She also found that it was in the public
interest that the defendant be tried for such offenses,
concluding that "[t]he nature of a complaint for rape and abuse
of a minor militates in favor of binding the [d]efendant over
for trial as an adult". She then dismissed the juvenile
complaints and bound the defendant over for trial in adult court
for the lesser included offenses of statutory rape.
2. Discussion. a. Transfer of a lesser included offense
not expressly charged. General Laws c. 119, § 72A, provides:
7
"If a person commits an offense or violation prior to his
eighteenth birthday, and is not apprehended until after his
nineteenth birthday, the court, after a hearing, shall
determine whether there is probable cause to believe that
said person committed the offense charged, and shall, in
its discretion, either order that the person be discharged,
if satisfied that such discharge is consistent with the
protection of the public; or, if the court is of the
opinion that the interests of the public require that such
person be tried for such offense or violation instead of
being discharged, the court shall dismiss the delinquency
complaint and cause a criminal complaint to be issued. The
case shall thereafter proceed according to the usual course
of criminal proceedings and in accordance with the
provisions of [G. L. c. 218, § 30,] and [G. L. c. 278,
§ 18]. Said hearing shall be held prior to, and separate
from, any trial on the merits of the charges alleged."
The defendant argues that G. L. c. 119, § 72A, does not allow
the transfer of a lesser included offense that was not charged
in the complaint. We disagree.
It is well established that statutory rape is a lesser
included offense of rape of a child with force. See
Commonwealth v. Thayer, 418 Mass. 130, 132 (1994) ("statutory
rape in G. L. c. 265, § 23, is a lesser included offense within
the forcible rape of a child under sixteen years of age within
G. L. c. 265, § 22A" [footnote omitted]); Commonwealth v.
Licciardi, 387 Mass. 670, 673 (1982) (jury "could return a
verdict of guilty of statutory rape, a lesser included offense
within the rape indictments"); Commonwealth v. Franks, 365 Mass.
74, 78 (1974) ("crime of statutory rape . . . is a crime
included within the crime of forcible rape . . . which was
charged in the indictment"); Commonwealth v. Harris, 74 Mass.
8
App. Ct. 105, 110 (2009) ("the crime with which the defendant
was charged was rape of a child by force, as to which rape of a
child is a lesser included offense"). It is also well
established that a defendant may be convicted of a lesser
included offense even if the lesser included offense is not
expressly charged. See, e.g., Commonwealth v. Walker, 426 Mass.
301, 303 (1997); Commonwealth v. Keane, 41 Mass App Ct. 656, 661
(1996).
We have specifically applied these principles in the
transfer hearing and statutory rape context as well. In
Commonwealth v. Williams, 427 Mass. 59, 59 (1998), we held that
a Superior Court judge could accept a guilty plea and impose a
sentence on a lesser included offense of statutory rape where
the defendant's case was transferred from the Juvenile Court
only on the greater and more serious offense of forcible rape.
We reasoned that even though the lesser included offense was not
specifically charged, the "legislative intent that such lesser
included offenses are part and parcel of the transfer hearing
process may fairly be presumed." Id. at 62. We therefore
conclude in answer to the first reported question that G. L.
c. 119, § 72A, permits a Juvenile Court judge, who has dismissed
offenses charged for lack of probable cause, to cause a criminal
complaint to be issued for lesser included offenses, where the
lesser included offenses are supported by probable cause and the
9
interests of the public require that the defendant be tried for
the lesser included offenses.
b. Notice. The second reported question asks us to
address whether the transfer of lesser included offenses in this
case was unconstitutional because this defendant was not
provided with "proper notice." As explained infra, we conclude
that although the defendant had notice of the lesser included
offenses, he did not have a meaningful opportunity to be heard
before the transfer occurred.
Individuals in the Juvenile Court have a constitutional due
process right to "essential fairness." Commonwealth v. Wayne
W., 414 Mass. 218, 223 (1993). Included in that right is
adequate notice. In re Gault, 387 U.S. 1, 33 (1967);
Commonwealth v. Olivo, 369 Mass. 62, 68 (1975) (form of notice
provided must be reasonably calculated to give actual notice of
proceedings and opportunity to be heard). Here, the defendant
was on notice, as a matter of law, that statutory rape was a
lesser included offense of rape of a child with force, and that
lesser included offenses are "part and parcel" of the transfer
process, and thus there was a possibility of transfer of the
statutory rape charges. Williams, 427 Mass. at 62. See Franks,
365 Mass. at 78. This, however, is not the end of the inquiry.
As evidenced by this case, Juvenile Court judges must make
difficult, discretionary decisions regarding whether to transfer
10
an offense or discharge a defendant. These decisions require
consideration of the specific crime and the particular
defendant. A thoughtful presentation by defense counsel
directed at both issues is thus critical. See J.D. Blitzman &
K.J. King, Hearings Pursuant to G. L. c. 119, § 72A: "Aging
Out" of the System, in 1 Massachusetts Juvenile Court Bench Book
§ 12, at 12-11 (Mass. Cont. Legal Educ. 3d ed. 2011 & Supp.
2014) ("[Advocates] must provide the court with adequate
information to place the alleged offending behavior into a
developmental context and to allow the court to understand how,
if at all, the defendant's more mature development reduces the
risk of reoffense. A reliable determination of the significant
issues that confront a judge in proceedings under this statute
can be made only if all relevant developmental and contextual
evidence is before the court"). Proper notice is essential to
such a presentation. See Commonwealth v. Bousquet, 407 Mass.
854, 860 & n.3 (1990) (transfer proper where counsel on notice
of nature of hearing and "had a sufficient basis to conclude
that the interests of the public required transfer"). We
therefore conclude that where a judge finds no probable cause to
believe the defendant committed the crime charged, but does find
probable cause to believe the defendant committed a lesser
included offense, the judge must provide the defendant notice of
that decision and give the defendant a meaningful opportunity to
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present evidence and argument as to why discharge of the
defendant is consistent with the protection of the public and
thus transfer of the lesser included offenses is not required.
In the instant case, the issue of lesser included offenses
was not raised by the prosecutor until after the close of
evidence and only after conceding that there was insufficient
evidence of force on one of the charges. The defendant objected
to this development, and the judge did not address the objection
or state her view regarding whether she would consider
transferring only the lesser included offenses until she issued
her decision. Consequently, when defense counsel made his
argument regarding transfer, he was not informed that the judge
had decided that there was not probable cause to support the
rape of a child with force charges but that there was probable
cause to support the lesser included offenses of statutory rape.
As we conclude that the defendant is entitled to be so notified
in order to be given a meaningful opportunity to present
evidence and argument directed at why transfer of the lesser
included offenses of statutory rape was not required, we reverse
and remand.
The specific facts and crimes at issue reveal the
importance of such notice and opportunity to be heard. The
protection of the public "interests" analysis differs
significantly for rape of a child with force and statutory rape
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when considering teenage sexual activity. A teenager who
forcibly rapes another presents a greater public safety risk
than a teenager engaged in consensual sexual activity with a
peer.2 As sexual activity among teenagers is common, even the
original decision to prosecute often depends on whether the
sexual activity is consensual or coerced.3
2 Compare Commonwealth v. Sullivan, 78 Mass. App. Ct. 631,
631–632 (2011) (teenage victim forcibly raped by teenage
codefendant while teenage defendant held victim down by her
shoulders), with Doe v. Attorney General, 430 Mass. 155, 164
(1999) (in cases involving consensual sexual activity between
teenagers and requirement of sex offender registration, State's
interest in protecting children not as great because risk of
reoffense may be minimal and present danger not significant).
3 See generally Commonwealth v. Bernardo B., 453 Mass. 158,
161 (2009) (emphasizing in statutory rape case that
"Commonwealth has broad discretion in deciding whether to
prosecute a case"). See Centers for Disease Control and
Prevention, Substance Use and Sexual Risk Behaviors Among Teens
(2017), https://www.cdc.gov/healthyyouth/substance-use/pdf/dash-
substance-use-fact-sheet.pdf [https://perma.cc/Z4H6-TL9P]
("According to the 2015 National Youth Risk Behavior Survey
. . . [forty-one per cent] of high school students have . . .
had intercourse and [thirty per cent] of high school students
are currently sexually active"). See also High, Good, Bad and
Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape
Laws Against the Protected Class, 69 Ark. L. Rev. 787, 808
(2016) (describing common practice of "prosecutorial discretion
. . . exercised to exclude sexual activity among adolescents
from the reach of legal regulation unless it appears to be
exploitative"); Oberman, Regulating Consensual Sex with Minors:
Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703, 750
(2000) (describing "an apparent consensus among prosecutors
against enforcement of statutory rape laws in cases of
'consensual sexual relationships' among peers").
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The judge's decision finding no probable cause of rape of a
child with force, but probable cause of statutory rape,
therefore fundamentally changed the protection of the public
"interests" calculus. Further complicating the public interest
analysis in the context of consensual teenage sexual relations,
the complainant's own decision to proceed expressly depended at
least at one point on whether the defendant "eventually wanted
to be with [her]." Finally, if the defendant were tried as an
adult seven years after the offense, the consequences of a
statutory rape conviction would not be a finding of delinquency
but the possibility of a life felony. Both the defense counsel
and the judge should have been carefully focused on all of these
issues.
Without having the benefit of the judge's decision on
probable cause, however, defense counsel chose to focus his
argument on the more serious charges of rape, for which he had a
strong defense.4 Indeed, defense counsel addressed the lesser
4 For the defendant, the case also changed dramatically once
the prosecutor sought to transfer statutory rape as well as rape
of a child with force charges. The defendant had not testified
at the hearing. On the issue of force, the defendant could rely
on the complainant's testimony alone, which described none. But
once the prosecution expressed its intentions to proceed on
statutory rape charges, the defendant was in an evidentiary
bind. With statutory rape charges being sought, the
complainant's testimony was now sufficient and unrebutted. That
being said, the complainant's testimony alone provided probable
cause to proceed on the statutory rape charges. The difficult
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included offenses of statutory rape only in passing, including
the critical and complicated discretionary issue whether the
court should discharge the defendant, even if there was probable
cause to support the lesser included offenses.
In sum, the defendant is entitled to reopen the transfer
proceedings to present evidence and argument on whether
discharge is consistent with the protection of the public.
c. Delay in apprehension. In posthearing briefing
requested by the parties and allowed by the judge, the defendant
argued that the delay in prosecuting the case was "done in bad
faith." As we discern no indicia of bad faith from this record,
and the timing of the prosecution appears directly connected to
the complainant's willingness to proceed, we conclude that this
argument has no merit. See Commonwealth v. Mogelinski, 473
Mass. 164, 171-172 (2015).
3. Conclusion. For the reasons set forth above, we
conclude that the judge did not err in determining that, lesser
included offenses could be transferred under G. L. c. 119,
§ 72A, and that the defendant was on notice as a matter of law
that such a transfer was a possibility. We conclude, however,
that where a judge finds no probable cause of the crime charged,
but does find probable cause of a lesser included offense, the
issue, requiring further proceedings, is not probable cause but
the discretionary decision to transfer or discharge.
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judge must give the defendant a meaningful opportunity to
address why discharge rather than transfer of the lesser
included offense is consistent with the protection of the
public, and that such opportunity was not provided here.
We remand the matter to the single justice of the county
court where an order of remand to the Juvenile Court shall issue
for further proceedings consistent with this opinion.
So ordered.