Commonwealth v. Geordi G., a juvenile

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16-P-1009 Appeals Court
COMMONWEALTH vs. GEORDI G., a juvenile.
No. 16-P-1009.
Berkshire. April 11, 2018. - September 20, 2018.
Present: Sullivan, Lemire, & Ditkoff, JJ.
Delinquent Child. Assault and Battery. Probable Cause.
Intentional Conduct. Juvenile Court, Delinquent child.
Practice, Criminal, Juvenile delinquency proceeding,
Complaint, Arraignment, Dismissal. Individuals with
Disabilities Education Act.
Complaint received and sworn to in the Berkshire County
Division of the Juvenile Court Department on January 19, 2016.
A motion to dismiss was heard by Judith A. Locke, J.
Kyle Gray Christensen, Assistant District Attorney, for the
Commonwealth.
Robert Hennessy for the juvenile.
DITKOFF, J. A school official obtained a delinquency
complaint charging the juvenile with, inter alia, two counts of
assault and battery based on alleged incidents of pushing a
teacher and hip-bumping the principal at his middle school. See
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G. L. c. 265, § 13A (a). Over the Commonwealth's objection, a
judge of the Juvenile Court dismissed these charges for lack of
probable cause. Concluding that the observations of the
teacher, the principal, and a school counsellor established
probable cause, we vacate the order of dismissal. We also take
this opportunity to remind school officials of their obligation,
when seeking a delinquency complaint against a student with an
individualized education program (IEP), to make the prosecutor
aware of the juvenile's special needs in a timely manner.
Background.1 On December 2, 2015, the twelve year old
juvenile was in the gymnasium of his middle school at the end of
a basketball game. He refused to follow directions, started
swearing at a teacher, and left the gymnasium. The teacher
followed and asked him to come back into the gymnasium, but he
refused and ran down the hallway into the atrium. When the
juvenile was asked to go to the office, he stated that he was
"not going to the fucking office" and did not want "to talk to
any of those assholes." The teacher tried to calm him down, but
he would not calm down or stop swearing loudly. The principal
then came into the atrium and also tried to calm him down. The
juvenile was breathing heavily, had clenched fists and puckered
lips, and was visibly upset. He also punched a cinder block
1 These allegations are those stated in the application for
the criminal complaint. See Commonwealth v. Valentin V., 83
Mass. App. Ct. 202, 203 & n.1 (2013). They remain unproven.
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wall that was behind him. The teacher was standing in front of
the doors to the hallway, and the juvenile pushed the teacher
and went through the doors.
After several minutes, other teachers left their rooms and
came into the hallway to try to calm down the juvenile. The
principal directed the first teacher to return to her classroom.
Nonetheless, the juvenile became more agitated, punched lockers,
and stated that he was going to injure people. The principal
issued a "soft lockdown," which required the students to stay in
their classrooms and to delay transitioning to their next
classes. After about ten minutes, the soft lockdown was removed
when the group of teachers and the principal were able to
convince the juvenile to leave the hallway and to enter the
office of the school's adjustment counsellor.
In the counsellor's office, the juvenile was still upset
and swearing. He stepped towards the principal in a threatening
manner and, standing face-to-face about one foot away,
repeatedly asked, "You're fucking scared of a [twelve] year
old?" The juvenile then walked to the door, bumping the
principal with the side of his body, thus moving him.
On December 3, 2015, the assistant principal of the middle
school filed an application under G. L. c. 218, § 35A, for a
delinquency complaint, alleging that the juvenile committed two
counts of assault and battery (one against a teacher and the
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other against the principal) and one count of disturbing a
school assembly, G. L. c. 272, § 40. The assistant principal
made no mention of the juvenile's IEP in the application, and
there is no indication that the school otherwise made the
prosecutor aware of the juvenile's special needs.
On January 19, 2016, the clerk-magistrate issued a
delinquency complaint for all three charges. The juvenile then
moved to dismiss the complaint before arraignment. On March 24,
2016,2 a hearing was held on the motion to dismiss. The judge
dismissed the two assault and battery charges for lack of
probable cause and arraigned the juvenile on the charge of
disturbing a school assembly.3 The Commonwealth appeals pursuant
to Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501
(1996).
Discussion. 1. Probable cause determination. "[W]e
review the . . . judge's probable cause determination de novo."
Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013), quoting
Commonwealth v. Long, 454 Mass. 542, 555 (2009). "[A] motion to
2 Arraignment was originally scheduled for January 28, 2016,
but was rescheduled without objection from the Commonwealth.
3 With the Commonwealth's apparent consent, the juvenile
ultimately received a disposition of pretrial probation on the
charge of disturbing a school assembly. After he successfully
completed the term of probation, the Commonwealth dismissed the
charge. The Legislature has since amended G. L. c. 272, § 40,
so that it cannot be used to prosecute a juvenile student for
conduct at school. See St. 2018, c. 69, § 159.
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dismiss a complaint [for lack of probable cause] 'is decided
from the four corners of the complaint application, without
evidentiary hearing.'" Id. at 565, quoting Commonwealth v.
Huggins, 84 Mass. App. Ct. 107, 111 (2013). "To establish
probable cause, the complaint application must set forth
'reasonably trustworthy information sufficient to warrant a
reasonable or prudent person in believing that the defendant has
committed the offense.'" Id., quoting Commonwealth v. Roman,
414 Mass. 642, 643 (1993). To satisfy the probable cause
standard, "more than mere suspicion" is required, but the
evidence need not be sufficient to warrant a conviction.
Commonwealth v. Cartright, 478 Mass. 273, 283 (2017), quoting
Commonwealth v. Jewett, 471 Mass. 624, 629 (2015). Our review
of the judge's order of dismissal is confined to the evidence
submitted to the clerk-magistrate, see Commonwealth v. Ilya I.,
470 Mass. 625, 626 (2015), which is "viewed in the light most
favorable to the Commonwealth." Commonwealth v. Levesque, 436
Mass. 443, 444 (2002).
"The complaint application must include information to
support probable cause as to each essential element of the
offense." Humberto H., 466 Mass. at 565-566. The crime of an
intentional assault and battery requires proof that the juvenile
"touched the victim without having any right or excuse to do so
and that the [juvenile's] touching of the victim was
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intentional." Commonwealth v. Mitchell, 67 Mass. App. Ct. 556,
564 (2006). Furthermore, there must be proof either that the
touching was "with such violence that bodily harm is likely to
result" (harmful battery), Commonwealth v. Eberhart, 461 Mass.
809, 818 (2012), quoting Commonwealth v. Burke, 390 Mass. 480,
482 (1983), or "occurred without the victim's consent"
(offensive battery). Eberhart, supra, quoting Commonwealth v.
Hartnett, 72 Mass. App. Ct. 467, 476 (2008). Accord Instruction
6.140 of the Criminal Model Jury Instructions for Use in the
District Court (2016). Both the teacher and the principal wrote
that the juvenile pushed the teacher after arguing with her.
The counsellor wrote that she observed the juvenile address the
principal in a threatening manner and then bump him with the
juvenile's side. Viewed in the light most favorable to the
Commonwealth, these accounts provide a sufficient showing of the
elements of intentional, offensive assault and battery to
warrant a prudent person in concluding that the juvenile
committed assault and battery when he pushed the teacher and
hip-bumped the principal.
We are unpersuaded by the argument that the juvenile
intended only to leave the rooms and to remove himself and thus
did not have the requisite intent to touch the teacher and the
principal. Prior to pushing the teacher on his way out of the
doors to the hallway, the juvenile was disregarding directions,
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running away from school staff, and yelling and swearing,
continuing to do so even after the teacher and other staff
attempted to calm him. Similarly, before bumping into the
principal, the juvenile stated that he was going to injure
others and then stepped towards the principal in a threatening
manner and repeatedly stated, "You're fucking scared of a
[twelve] year old?" Although the juvenile may very well have
had the primary motivation of removing himself from both
situations, based on the circumstances surrounding the
incidents, it is a reasonable inference that the juvenile also
intended to make contact with the individuals.4
2. Prearraignment dismissal based on best interests of the
juvenile and in the interests of justice. Relying on the
holding in Humberto H., the juvenile contends that, even if the
complaint application supports a finding of probable cause, the
judge properly exercised her discretion in dismissing the two
charges prior to arraignment to protect the best interests of
the juvenile and in the interests of justice. We disagree.
The judge based her dismissal on her finding that there was
no probable cause to support the charges of assault and battery.
Nothing in the judge's decision indicates that she made a
4 Although the judge references the lack of bodily injury to
the teacher and the principal in finding no probable cause,
bodily injury is not a necessary element for an intentional
assault and battery. See Commonwealth v. Porro, 458 Mass. 526,
529 (2010).
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discretionary decision that dismissal was in the best interests
of the juvenile and in the interests of justice. To the
contrary, the judge allowed the charge of disturbing a school
assembly to proceed, suggesting that she viewed prosecution to
be in the interests of justice.
Case law issued after the events in question will govern
this question if the Commonwealth chooses to proceed. In
Commonwealth v. Newton N., 478 Mass. 747 (2018), the Supreme
Judicial Court decided that, where a complaint obtained by a
police officer is supported by probable cause, a judge cannot
dismiss the complaint prior to arraignment even when the judge
determines that dismissal before arraignment would serve the
best interests of the child and the interests of justice. Id.
at 755-757. This is because, "where a complaint is supported by
probable cause, the decision to proceed with the prosecution
rests in the broad and exclusive discretion of the prosecutor."
Id. at 755. The courts expect prosecutors to consider carefully
"whether to proceed with the arraignment of a juvenile, even
where there is probable cause, and consider whether prosecution
will serve the best interests of the child and the interests of
justice." Id. at 757.
In Commonwealth v. Orbin O., 478 Mass. 759 (2018), the
Supreme Judicial Court held that, where a delinquency complaint
is brought by a civilian, the judge may not dismiss the
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complaint in the best interests of the juvenile and in the
interests of justice if the prosecutor affirmatively adopts the
complaint by moving for arraignment. See id. at 760. Here, as
in Orbin O., the application for complaint was sought by an
assistant principal, a civilian. Accordingly, going forward, if
the Commonwealth moves for arraignment, the judge will lack the
authority to dismiss the complaint based on the best interests
of the juvenile and in the interests of justice.
3. Prearraignment dismissal based on failure to provide
mitigating evidence. The juvenile contends that the dismissal
may be upheld on the ground that the assistant principal was
obligated pursuant to Commonwealth v. O'Dell, 392 Mass. 445
(1984), to inform the clerk-magistrate of the juvenile's IEP,
and that this failure justified dismissal of the two charges
before arraignment. Under O'Dell, a defendant may move to
dismiss a grand jury indictment on the ground that "the
integrity of the grand jury proceeding was impaired by an unfair
and misleading presentation to the grand jury." Id. at 446-447.
"To justify dismissal of an indictment, a defendant must show
that 'inaccurate or deceptive evidence was given to the grand
jury knowingly and in order to obtain an indictment and that the
evidence probably influenced the grand jury's determination.'"
Levesque, 436 Mass. at 456, quoting Commonwealth v. Drumgold,
423 Mass. 230, 238 (1996). Although there is no general duty to
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provide all exculpatory evidence to a grand jury, see
Commonwealth v. Carr, 464 Mass. 855, 868 (2013), a motion to
dismiss may lie where "evidence was withheld in a manner that
distorts the meaning of the evidence admitted, or if the
exculpatory evidence was so powerful it would have severely
undermined the credibility of an important witness or likely
have led the grand jury not to indict." Commonwealth v. Rakes,
478 Mass. 22, 30 (2017). The rationale in O'Dell has never been
applied to private complaints or in the prearraignment context.
We pretermit the question whether O'Dell applies to private
complaints or may be raised prearraignment, as the juvenile's
argument fails for the more fundamental reason: a motion to
dismiss under O'Dell lies where the withheld evidence, if known
by the finder of probable cause, would likely have resulted in a
finding of no probable cause. See Rakes, 478 Mass. at 32
(rejecting O'Dell claim where "[t]he appropriately admitted
evidence was more than sufficient to demonstrate probable
cause"); Commonwealth v. Hunt, 84 Mass. App. Ct. 643, 659
(2013), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163
(1982) (reversing order dismissing on O'Dell grounds where
proper evidence "was sufficient 'to establish the identity of
the accused . . . and probable cause to arrest [them]'").
Accord Commonwealth v. Wermers, 61 Mass. App. Ct. 182, 188
(2004). The juvenile's IEP, although potentially relevant both
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at trial and at disposition, could not defeat probable cause.
See Newton N., 478 Mass. at 752 ("questions of criminal
responsibility and mental impairment are not relevant
considerations in determining probable cause").
Nonetheless, the school had a statutory duty, pursuant to
the Federal Individuals with Disabilities Education Act, 20
U.S.C. §§ 1400 et seq. (2012) (IDEA), to disclose information
relating to the IEP to the prosecutor in order for the
Commonwealth to make a reasoned, informed decision whether to
move forward with the prosecution. "The IDEA is a complex
Federal grant program intended to 'ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs.'" Commonwealth v.
Nathaniel N., 54 Mass. App. Ct. 200, 202 (2002), quoting 20
U.S.C. § 1400(d)(1)(A) (Supp. 1999). The IDEA sets forth
"substantive and procedural rights designed to ensure
achievement of the statutory goals," Nathaniel N., supra,
providing Federal funding for States that meet certain
conditions. See Kelly K. v. Framingham, 36 Mass. App. Ct. 483,
484 (1994).
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Under 20 U.S.C. § 1415(k)(6)(B)(2012),5 "[a]n agency
reporting a crime committed by a child with a disability shall
ensure that copies of the special education and disciplinary
records of the child are transmitted for consideration by the
appropriate authorities to whom the agency reports the crime."
Few courts have thus far addressed the requirements of
§ 1415(k)(6)(B), such as when and to what "appropriate
authorities" the records must be provided. In Nathaniel N., 54
Mass. App. Ct. at 206, we concluded that a delay in providing
such records did not, without more, create "one of those rare
cases that warrants overriding a District Attorney's authority
to decide whether to prosecute a case."
Nonetheless, it is beyond cavil that the IDEA "recognizes
that such records would be relevant for placement and
dispositional purposes." Id. at 205. The purpose of
§ 1415(k)(6)(B) is to provide such records to help determine
whether a crime has been committed by a student that warrants
prosecution and what disposition would be appropriate if such a
crime were proven. Decisions regarding whether to prosecute a
particular case are within the discretion of the prosecuting
authorities of the Commonwealth. See Victory Distribs., Inc. v.
Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 143 (2001).
Accordingly, it is necessary that the prosecutor, as the
5 Previously 20 U.S.C. § 1415(k)(9)(B) (2000).
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appropriate authority, have access to this information in time
to exercise this discretion in an informed manner.
Prosecutors have the authority to nol pros a complaint
issued under G. L. c. 218, § 35A, before arraignment. See
Carroll, petitioner, 453 Mass. 1006, 1006 (2009). This
discretionary function is an important prosecutorial duty,
particularly in juvenile cases, and one that school authorities
need to protect by providing the prosecutor with access to
information that weighs on the prosecutor's determination.
"[S]ound judgment must be applied in deciding whether a child's
misbehavior that is legally within the ambit of the criminal law
is so serious that it should be treated as a delinquency
complaint in Juvenile Court, rather than as a disciplinary
matter that is best resolved within a school, family, or
clinical mental health setting." Orbin O., 478 Mass. at 766.
Upon reviewing the juvenile's records, which may cast doubt on
the juvenile's responsibilities for his actions or present
significant mitigating factors, the prosecutor is in a better
position to make an appropriate decision about whether
proceeding with arraignment is in the best interests of the
juvenile and is consistent with the interests of justice. See
Newton N., 478 Mass. at 757. Accordingly, we remind school
officials that, when seeking a delinquency complaint against a
juvenile with an IEP, the school officials should make sure that
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the prosecutor has knowledge of the relevant information in time
to make an informed decision whether to arraign the juvenile.
In this case, the Commonwealth is now aware of the
existence of the IEP and is able to seek other information from
the school. We trust that the Commonwealth will carefully
consider this information before proceeding further. Guided by
this information, it is now within the prosecutor's sound
discretion whether to move for arraignment in this case or to
consider other alternatives.
Conclusion. The order allowing the motion to dismiss the
two assault and battery charges is vacated and the charges are
reinstated.
So ordered.