Argued: February 5, 2015.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 9, 2013.
The case was heard by Spina, J.
Paul R. Rudof, Committee for Public Counsel Services ( Joseph D. Mulhern, Jr., Committee for Public Counsel Services, with him) for the juvenile.
Shoshana E. Stern, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[31 N.E.3d 43] Hines, J.
The defendant, a juvenile, was indicted as a youthful offender under G. L. c. 119, § 54, for possession of heroin with intent to distribute, in violation of G. L. c. 94C, § 32 ( a ). Under the youthful offender statute, a juvenile may be prosecuted as an adult if the charge involves the " infliction or threat of serious bodily harm." G. L. c. 119, § 54. Arguing that the evidence presented to the grand jury was insufficient to establish this requirement, the juvenile moved to dismiss the indictment. A judge in the Juvenile Court denied the motion, and the juvenile filed a petition for relief pursuant to G. L. c. 211, § 3. This appeal, from the denial of the juvenile's petition, presents the issue whether
evidence of the generalized potential for harm from the distribution and use of heroin meets the probable cause standard for " infliction or threat of serious bodily harm."  We conclude that it does not and reverse the decision of the single justice denying the defendant's G. L. c. 211, § 3, petition.
Only one witness, a Taunton police officer, testified before the grand jury. We summarize that testimony as background for our discussion. On August 27, 2013, at approximately 2:45 p.m., the officer observed two males on an all-terrain, off-road vehicle traveling at a high rate of speed in the opposite direction on Oak Street in Taunton. He was concerned for the safety of the males and other motorists because of the speed of travel and because the males were not wearing helmets, a requirement of all-terrain vehicle use.
The males looked directly at the officer and then turned onto railroad tracks running perpendicular to the road. The officer drove down various crossroads to the railroad tracks in an effort to get in front of the vehicle, eventually stopping his police cruiser twenty to thirty yards in front of the males. When the officer got out of his cruiser, the vehicle stopped and the two males identified themselves. The driver was eighteen years of age and the juvenile, a passenger, was sixteen years of age.
The juvenile got off of the vehicle without prompting. The officer then ordered the driver to do so and both to lie on the ground. After a second officer appeared, the first police officer pat frisked the driver while the second officer pat frisked the juvenile. On the driver, the officer found a baggie containing a small amount of marijuana, approximately $300, two bags of heroin the size of golf balls, two cellular telephones, a small white pill, and a lighter. The substance found on the driver was field tested and indicated positive for heroin. On the juvenile, the second ...