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04/25/78 A JUVENILE v. COMMONWEALTH

April 25, 1978

A JUVENILE
v.
COMMONWEALTH



Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 25, 1977. The case was reserved and reported by Liacos, J.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Probable cause hearing, Transfer hearing. Delinquent Child.

The opinion of the court was delivered by: Abrams

This court granted review under G. L. c. 211, § 3, in an action by a juvenile plaintiff seeking to avoid a second transfer hearing on delinquency complaints which had previously been dismissed for lack of probable cause. [106]

It was permissible to hold a second transfer hearing on deliquency complaints which had previously been dismissed for lack of probable cause where additional evidence concerning probable cause was available. [106-108]

Pursuant to G. L. c. 211, § 3, the plaintiff juvenile seeks to enjoin the holding of a second juvenile transfer hearing on the same charges after a finding of no probable cause at the first hearing.

The pertinent facts, which are taken from a statement of agreed facts, are as follows. On November 21, 1976, three juveniles were observed in a stolen vehicle by a police officer. The officer followed the vehicle for approximately ten minutes at speeds of thirty-five to forty-five miles an hour. Suddenly, the stolen car accelerated to an estimated speed of sixty-five miles an hour prior to entering an intersection. The car ran a stop light and hit another car. One of the passengers in the other car was killed. Two of the juveniles were apprehended at the scene. The plaintiff was arrested later at his home.

On November 22, 1976, the plaintiff was charged in Boston Juvenile Court on deliquency complaints with use of a motor vehicle without authority, vehicular homicide, and operating without a license. These matters were continued for transfer hearings. These same delinquency charges were also brought against one of the other juveniles. The third juvenile was charged with use without authority. The latter two cases were continued for adjudicatory delinquency proceedings.

On February 5, 1977, the plaintiff's transfer hearing and the other juveniles' delinquency proceedings were held. The assistant district attorney moved for hearing simultaneously against the three juveniles.

The police officer who had followed the stolen car identified the three juveniles as those he had seen in the car, and recounted his observations of the chase and accident. During the officer's testimony, the assistant district attorney attempted to introduce statements made to the officer by the two juvenile co-defendants concerning the identity of the operator of the car at the time of the accident. This testimony was excluded.

On March 4, 1977, the delinquency complaints against the plaintiff concerning vehicular homicide and operating without a license were dismissed for lack of probable cause. The complaint charging use without authority was continued for finding and Disposition. On March 28, 1977, the plaintiff was committed to the Department of Youth Services. The two co-defendants were found delinquent on the charge of use without authority.

On May 19, 1977, the plaintiff was charged with delinquency by reason of vehicular homicide and operating without a license. Transfer hearings were again requested by the Commonwealth. The additional evidence to be presented by the Commonwealth was the testimony of one of the two co-defendants involved in the accident.

The plaintiff filed a motion to dismiss the request for a transfer hearing. After consideration of the motion, the presiding Judge indicated that he would sign a memorandum in support of a petition pursuant to G. L. c. 211, ยง 3, since he had concluded that the issues raised were of first impression and of ...


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