415 Mass. 38 | Mass. | 1993
The juvenile in this case is charged with murder, and assault with intent to murder, after a violent inci
1. (a) Probable cause (Part A) hearing. The judge found that probable cause existed to convict the juvenile of murder and assault with intent to murder based on the testimony at the Part A hearing of the surviving stabbing victim, Robert Crayton. Crayton testified that, as he was returning home on
(b) Transfer (Part B) hearing. It was agreed that a psychologist connected with the Roxbury District Court clinic would perform a diagnostic study of the juvenile pursuant to G. L. c. 119, § 68A (1990 ed.). The juvenile also successfully requested funds to retain two experts, a psychiatrist and a psychologist, in preparation for the Part B hearing. He was examined by these experts and was prepared to offer their testimony. Before the commencement of the Part B hearing, the prosecutor requested that the juvenile submit to a psychiatric examination by an expert of its choice. The prosecutor
The evidence introduced at the Part B hearing consisted of the Roxbury District Court clinic psychologist’s testimony and written evaluation, testimony from staff members of the Challenge Program (the secure Department of Youth Services [DYS] facility at which the juvenile has been detained pending trial), and from an appointed attorney who had previously represented the juvenile, the juvenile’s DYS, probation, and school records, and the transcript of the probable cause (Part A) hearing. The psychologist’s report reflected interviews with the juvenile, and members of his family, tests that had been administered to the juvenile, and a review of his school and DYS records. While noting that the juvenile displayed a “limited” degree of remorse for the incident that had led to the pending charges,
2. Transfer decision. The Part B hearing concerned the threat to the public posed by the juvenile and his amenability
The transfer hearing is an adversary process which places on the Commonwealth the burden of proving that a juvenile presents a danger to the public and is not amenable to rehabilitation. By recent amendments to § 61, the Legislature clearly has indicated an intent that transfer should occur more readily in cases in which a juvenile is charged with murder or another crime involving violence to a person. In such cases, the Commonwealth’s burden of proof is by a preponderance of the evidence as distinguished from clear and convincing evidence which applies in other cases. Section 61 also creates a rebuttable presumption that a juvenile charged with murder (or with another enumerated violent crime) is dangerous to the public and not amenable to rehabilitation. See Commonwealth v. Wayne W., 414 Mass. 218, 222-225 (1993); G. L. c. 119, § 61, as amended by St. 1990, c. 267, § 3, and by St. 1991, c. 488, § 6.
Not one of the factors listed in § 61 is conclusive and that statute does not assign particular weight to one factor over the others. A judge has considerable discretion, within the
Based on the evidence presented at the Part B hearing in this case, the judge concluded that the juvenile posed a danger to the public because “[t]he Commonwealth . . . clearly demonstrated that the [juvenile] is a habitual assaulter, and that the pattern of violence he exhibited has intensified over time. There was evidence that [the juvenile] is a drug dealer and may be involved in gang activity .... A Boston School Department [Psychologist’s evaluation indicated that [the juvenile] had aggressive tendencies, impulsive behavior, and low self-esteem. There was an abundance of evidence that [the juvenile’s] family situation cannot provide the nurturing, guidance, and control necessary to assure public safety.” Turning to the question of the juvenile’s amenability to treatment within the juvenile justice system, the judge observed that the juvenile had exhibited no behavioral problems and had performed well academically in the secure DYS facility in which he had been confined since his arrest. Reasoning that the Commonwealth had been “unable to produce any testimony” contradicting or refuting the opinion of the Roxbury Court clinic psychologist, the judge accepted the psychologist’s opinion that the juvenile would be amenable to treatment offered in a secure and highly structured environment.
This court and the Appeals Court have affirmed decisions finding juveniles not amenable to rehabilitation based on evidence of: (1) the lack of success of previous treatment efforts, see Ward v. Commonwealth, supra at 439; Commonwealth v. Costello, 392 Mass. 393, 396 n.2 (1984); Two Juveniles v. Commonwealth, supra at 744; Commonwealth v. Traylor, 29 Mass. App. Ct. 584, 588 (1990); (2) a juvenile record involving violence to persons, see Ward v. Commonwealth, supra at 439; Commonwealth v. Traylor, supra at 587-588; (3) a lack of academic effort, persistent truancy, and disciplinary problems at school, see Commonwealth v. DiBenedetto, supra at 49; Ward v. Commonwealth, supra at 439; Commonwealth v. Costello, supra at 396 n.2; Commonwealth v.
The juvenile’s court record reveals four arrests for assault and battery, one of which was for an assault and battery on a school teacher. Two of the assaults involved robbery. The juvenile defaulted on numerous court appearances. When he was adjudicated delinquent and committed to DYS custody in 1991, he was placed in Casa Rafael, a nonsecure DYS facility. While there, “he tried to remove himself from programmatic things like schooling.” He ran away from the facility and did not respond to telephone calls made by DYS personnel attempting to locate him. As the judge noted, the juvenile’s probation officer at the Roxbury District Court concluded that the juvenile was not suitable for probation because he had defaulted five times, refused to cooperate with the court clinic, did not attend school, and did not observe his curfew. The juvenile admitted to the psychologist to selling crack cocaine regularly, to smoking marihuana on a daily basis, and to drinking alcohol regularly, primarily on the weekends.
The juvenile began missing school in the sixth grade. From that point on, his behavioral problems in school became acute: he was regularly truant; he assaulted a teacher; he carried a knife on school premises; and he was reported by school authorities to be generally inappreciative, undisciplined, and disrespectful of authority. In tests conducted by the Roxbury District Court clinic, the juvenile tested at a third grade level for verbal skills and an eighth grade level for skills in mathematics. The juvenile’s mother had been addicted to cocaine since the juvenile was seven or eight years old. The juvenile had lived with an aunt since he was twelve after a fire destroyed his family’s apartment. Although his aunt provided the juvenile with basic necessities, and indi-
The Commonwealth and the juvenile also should have been permitted to introduce additional expert psychiatric testimony. We indicated in Commonwealth v. Wayne W., 414 Mass. 218, 230-231 (1993), that, if a juvenile chooses at a Part B (transfer) hearing to introduce expert psychiatric evidence reflecting his statements to an expert, the juvenile has waived his privileges against self-incrimination and can be compelled, on the Commonwealth’s motion, to submit to an examination by an expert designated by the Commonwealth. We also noted, in the Wayne W. decision, “the distorting effect on the fact finder’s role, if only one party can introduce expert testimony on a crucial issue.” Id. at 231. The Roxbury District Court clinic psychologist’s testimony reflected extensive interviews with the juvenile, and she was called by him as a witness at the transfer hearing. The judge’s ruling excluding other expert testimony impermissi-bly restricted the Commonwealth from obtaining and introducing comparable evidence to which it was entitled.
In so limiting the expert testimony, and relying exclusively on the examination by the Roxbury District Court clinic psychologist, the judge desired to avoid “a battle of the experts” and the introduction of evidence he thought might be cumu
3. Disposition. The order denying the Commonwealth’s motion to transfer is reversed. The case is remanded to the juvenile session of the Roxbury District Court for further proceedings consistent with this opinion, including an examination of the juvenile by the Commonwealth’s expert, the introduction of such additional psychiatric testimony as both parties desire, and a redetermination of the issue of the juvenile’s amenability to rehabilitation.
So ordered.
The juvenile was also charged with possession of a firearm which had no serial or identification number. G. L. c. 269, §§ 10 (a) and 11C (1990 ed.). These charges were dismissed for lack of probable cause after it was found that the firearm in the juvenile’s possession was inoperable.
As amended, G. L. c. 119, § 61, provides: “The court shall order a transfer hearing whenever the commonwealth so requests. The court shall order a transfer hearing in every case in which the offense alleged is murder in the first or second degree . . . .”
Either one of these wounds would have been sufficient to cause death. The judge commented: “[Tjhe forensic evidence shows that [the juvenile’s actions] . . . produced two separate six inch deep wounds that perforated [the deceased’s] heart. The brutal viciousness of this act is clear. [The juvenile’s] multiple crushing death blows to [the deceased’s] heart after pursuing and cornering him, an unarmed victim, produced stab wounds substantially deeper than the four inch knife blade itself.”
The psychologist based her assessment of the juvenile in part on the account he gave to her of the events leading to the charges against him. He maintained that he had been defending himself against what he thought was an assault with a knife. He told the psychologist that the fight was over the firearm that was in his possession when he was arrested. According to the juvenile, he had traded cocaine for the firearm with Robert Crayton and was dismayed to discover that it did not fire.
General Laws c. 119, § 72, as amended by St. 1991, c. 488, § 7, imposes mandatory sentences on juveniles retained within the juvenile justice system, and adjudicated delinquent by reason of murder in the first degree (twenty years with possibility of parole after fifteen years) or second degree (fifteen years with possibility of parole after ten years). The judge
We note as well that the Commonwealth is not required to produce expert psychiatric testimony to prove that the juvenile is not amenable to rehabilitation, nor is the judge bound by the testimony of such experts. See Ward v. Commonwealth, supra at 439; Commonwealth v. Costello, 392 Mass. 393, 397 (1984); Commonwealth v. Watson, 388 Mass. 536, 539 (1983); Two Juveniles v. Commonwealth, 381 Mass. 736, 744-745 (1980).
We do not agree with the judge that the testimony of the juvenile’s two expert witnesses would have been cumulative, in view of the testimony offered by the Roxbury District Court clinic psychologist. One of the juvenile’s experts was a psychiatrist. The juvenile’s representation, on the record, was that these experts were experienced in assessing the rehabilitative potential of juveniles, and familiar with DYS treatment resources. Section 61 placed on the juvenile the initial burden of producing evidence of his amenability to treatment. Commonwealth v. Wayne W., supra at 223-224. He must be allowed to present competent evidence on this point.