53 Mass. App. Ct. 271 | Mass. App. Ct. | 2001
In Brockton Juvenile Court a six-person jury found the juvenile defendant, Guy G. (a pseudonym), delinquent for his violation, first, of G. L. c. 272, § 16 (“open and gross lewdness
It will be convenient to describe the case as the jury could find it, then to consider the supposed material gaps in the evidence, and finally to examine the handling of the rule 25(b)(2) motion to reduce the delinquency. We shall conclude that the verdicts were fully supported, but there is a need in the interests of justice to remit the case to the trial judge so he may pass anew on the motion in his discretion.
1. On December 19, 1996, Guy and the complaining witness, Carol Denver (a pseudonym), were both aged sixteen and in the junior grade of the Whitman-Hanson Regional High School in Hanson. That morning, the school was in session. Under a program of remedial tutoring by student peers, Denver was trying to assist Guy in a history assignment. They were seated in one of the cubicles to the side of study room no. 25. The cubicles were partitioned for privacy but were not closed and could be readily entered. Two students were at tables in the area outside the cubicles. One, Chris, could, if he rose, see over the partition and into the cubicle. Four or five students were in the adjoining room no. 23. A teacher would “rotate” between the two rooms.
Denver had been coaching Guy at times since mid-November and had had some trouble with him.
As Denver returned to the cubicle, Guy resumed his advances. He said he hated to see sixteen-year-old girls with flat chests and tried to throw some pens down her shirt. Then he leaned back in his swivel chair, pulled up his shirt, lowered his low-slung baggy pants and his shorts, and exposed his penis to her, saying, “Isn’t that the biggest you’ve ever seen.” After a few moments he pulled back his shorts. She told him he was “disgusting” and to “grow up,” and she left. She testified she was “in shock,” “didn’t know what to think,” was “upset” by ■it, “angry, . . . sad,” with “a lot of emotions.” She had not mentioned her trouble to Chris, was “too in shock” to try to tell him.
Denver’s subsequent complaints to Dehan and Edwin Walsh, an assistant principal, led to a meeting of these teachers with Guy, followed by police intervention.
2. The five elements of the § 16 offense appear in instruction 5.42 of the Model Jury Instructions for Use in the District Court
Again, the juvenile argues that the proof of the § 53 offense did not measure up because the genital act was not committed in a “public place,” referring here to the fourth element of the applicable model instruction 5.422.
3. On the § 16 offense, the judge imposed sentence to the Department of Youth Services (DYS) suspended to July 9, 1999 (the juvenile’s eighteenth birthday), with probation on stated terms of counseling, and so forth. The sentence noted that the § 16 delinquency (a felony) subjected the juvenile to registration under the Sex Offender Registration and Community Notification Act, G. L. c. 6, § 178C.* ***
At the hearing (January 15, 1998) on the motion for a new trial,
The judge had discretion under the rule to “ameliorate injustice,” Commonwealth v. Woodward, 427 Mass. 659, 667 (1998), and counsel for the juvenile argued that favorable action on the motion would have just such an effect.
The trial judge made no comment about the merits and justice of the juvenile’s request for reduction; rather, he expressed doubt whether he had authority to pass on the request. He said, even if indecent exposure was an included offense, “which I
It was not until October 2, 1998, that the judge mled, inscribing on the margin of the paper motion for a new trial, “After hearing and consideration of materials submitted the motion is denied.” The judge’s attention seemed trained on the question of a new trial. Surely the judge was not allowing the request for reduction, and it may be presumed denied and subject to appeal, but he did not mention the request, and we find no clearcut disposition or reasoning on the matter. We do not know whether he overcame his doubt about his power or did in fact consider the request.
On the present appeal, it must be taken as settled that there was no bar to the judge’s entertaining and passing on the reduction request by reason of the omission to instruct the jury on the lesser offense. See Commonwealth v. Woodward, 427 Mass, at 662-667,
The Commonwealth argues that the request for reduction came too late, that it had to be made within the five days mentioned in the first sentence of rule 25(b)(2). The law is otherwise: the five-day limit does not apply to applications under the second sentence; these are without limit of time in the same sense as motions for a new trial under Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979) (see now 435 Mass. 1501 [2001]). See Commonwealth v. Keough, 385 Mass. 314, 318 (1982); Commonwealth v. Aguiar, 400 Mass. 508, 511 n.3 (1987); Commonwealth v. Carter, 423 Mass. 506, 511 n.6 (1996). The request was timely.
The juvenile urges us to act to allow the motion in order to repair an injustice. The Commonwealth seems content that injustice was not done. But the discretion involved, to be carefully and sparingly exercised, is in the first instance for the trial judge.
In all the circumstances, the indicated course is to remand the case to the trial judge to revisit the scene and consider and decide the rule 25(b)(2) motion as applied to the § 16 delinquency. Accordingly, on the charge of violation of G. L. c. 272, § 16, the matter is remanded to the Juvenile Court for a ruling on the motion pursuant to Mass.R.Crim.P. 25(b)(2). On the charge of violation of G. L. c. 272, § 53 (“lewd . . . persons in speech or behavior”), the adjudication of delinquency is affirmed. The order denying the motion for a new trial is affirmed.
So ordered.
Denver had spoken to two faculty persons about Guy’s lying to her.
During this interval Denver wrote a note addressed to a friend complaining that “this psycho kid [Guy] won’t stop hitting on me. I don’t know what to do.” She went on to describe Guy’s behavior in the cubicle. She passed the letter to the friend later that day. (In testimony, Denver defined the “hitting on” expression to mean Guy’s taking an interest in her which she did not reciprocate.)
For the defense, Guy testified he was trying to mend his pants belt with tape at the time; he might accidentally have exposed himself in the process (he thought he had not) but he pictured Denver as somnolent or asleep in her chair and so probably not aware. The other witness called by the defense, Patricia Leverone, a special needs teacher, uncertain about the date, recalled seeing Guy holding up his pants with both hands. She told him to seek a pin (he didn’t do so).
[Preamble omitted.]
“In order to prove the defendant guilty of this offense, the Commonwealth must prove five things beyond a reasonable doubt:
“First: That the defendant exposed his (her) (genitals) (buttocks) (or) (female breasts) to one or more persons;
“Second: That the defendant did so intentionally;
“Third: That the defendant did so ‘openly,’ that is, either he (she) intended public exposure, or he (she) recklessly disregarded a substantial risk of public exposure, to others who might be offended by such conduct;
“Fourth: That the defendant’s act was done in such a way as to produce alarm or shock; and
“Fifth: That one or more persons were in fact alarmed or shocked by the defendant’s thus exposing himself (herself).”
[Preamble omitted.]
“In order to prove the defendant guilty of this offense, the Commonwealth must prove four things beyond a reasonable doubt:
“First: That the defendant (committed) (publicly solicited another person to commit) a sexual act;
“Second: That the sexual act involved touching the genitals or buttocks, or the female breasts;
“Third: That the defendant did this either for the purpose of sexual arousal or gratification, or for the purpose of offending other people; and
At the time, § 178C (as inserted by St. 1996, c. 239, § 1) listed “open and gross lewdness and lascivious behavior under the provisions of [c. 272, § 16,]” among the sex offenses invoking registration. (We do not enter upon the attendant ramifications of due process, see Doe v. Attorney Gen., 430 Mass. 155 [1999].) The legislation effective on September 10, 1999, St. 1999, c. 74, § 2, has (as part of a general revision of the law) replaced the quoted language by “second and subsequent adjudication or conviction for open and gross lewdness and lascivious behavior under [c. 272, § 16], but excluding a first or single adjudication as a delinquent juvenile before August 1, 1992.”
A motion to revise and revoke had been earlier formally made and denied.
RuIe 25(b)(2) provides:
“Motion After Discharge of Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint.”
The Commonwealth took no objection to the informality of the representations made by counsel.
The judge also said, “The rule says that I can reduce the case to any offense included within the complaint, and this wasn’t included within the complaint.”
This occurred in the Louise Woodward au pair case, which reached final decision in Commonwealth v. Woodward, 427 Mass. 659 (1998).
In the Woodward case, the Commonwealth had requested an instruction on involuntary manslaughter, with the defense opposed; the judge did not so instruct. The Court held this was error but the judge nevertheless could act in discretion under rule 25(b)(2) to reduce the conviction. Id. at 662-667.
It has long been stated that the § 16 offense is an aggravated form of indecent exposure, the § 16 offense being often charged where the victim is a child, although not thus limited. See the explanatory note to instruction 5.423 of the Model Jury Instructions for Use in the District Courts (1995) on indecent exposure; Commonwealth v. Fitta, 391 Mass. 394, 396 (1984) (quoting from Commonwealth v. Broadland, 315 Mass. 20, 22 [1943], that “[t]he ‘open and gross lewdness’ provision has been said to be ‘closely similar’ to the offense of indecent exposure’”).