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N.M. v. Commonwealth

Supreme Judicial Court of Massachusetts, Suffolk

October 10, 2017

N.M., a juvenile
v.
COMMONWEALTH.

          Heard: March 7, 2017.

         Youthful Offender Act. Practice, Criminal, Indictment, Interlocutory appeal. Rape. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 15, 2016.

         The case was considered by Botsford, J.

          Harry C. Mezer (Joseph J. Machera also present) for the juvenile.

          Ronald E. DeRosa, Assistant District Attorney, for the Commonwealth.

          Robert E. McDonnell, Vanessa M. Brown, & Joshua Silverstein, for Youth Advocacy Division of the Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]

          BUDD, J.

         Here we consider whether a juvenile, who has been indicted as a youthful offender, is entitled as of right to interlocutory review of a denial of a motion to dismiss that indictment. We also consider whether the youthful offender indictment in this case was sufficiently supported by probable cause. We conclude that a juvenile is not entitled to G. L. c. 211, § 3, interlocutory review as a matter of right in these circumstances. Nevertheless, we exercise our discretion to reach the merits of the petition and conclude that the youthful offender portion of the indictment was not sufficiently supported by probable cause because the charged conduct did not involve the infliction or threat of serious bodily harm.[2]

         Background.

         The following facts are taken from the testimony and exhibits presented to the grand jury. In December, 2014, or January, 2015, the complainant disclosed to her mother that her female cousin, the juvenile, had been sexually touching her for the last few years, starting when the complainant was age five or six and the juvenile was age fourteen or fifteen. The girls attended weekly dance classes together and afterward would spend time in the juvenile's bedroom napping or watching movies, away from adult supervision. The complainant told her mother that in this setting the juvenile had "kissed" her on her breasts, "touched" and "inserted [a] finger" in her vagina, and "instructed" her to touch the juvenile's vagina. The complainant's mother reported the sexual activity to police in May, 2015.

         Investigators conducted a sexual abuse intervention network interview, [3] during which time the complainant shared similar descriptions of the activities.[4] The complainant reported that the juvenile would sometimes discuss her sex life with the complainant and would "explain what she was doing" to the complainant when she touched the complainant. Sometimes the sexual touching "kind of hurt" because the complainant "was littler than [the juvenile]." Sometimes the complainant "did want to do it, " but other times she (in her mind) did not but nevertheless "felt like [she] had to." In response to a question from a member of the grand jury, a detective testified that the juvenile had made no threats to the complainant, and that the juvenile and the complainant "care[d] a lot" about each other. The juvenile told the complainant to tell her to stop the touching if it hurt.

         A grand jury returned a youthful offender indictment against the juvenile, charging her with rape of a child.[5] See G. L. c. 119, § 54; G. L. c. 265, § 23. The juvenile moved to dismiss the indictment, citing insufficient evidence to establish probable cause to believe that the alleged conduct involved the infliction or threat of serious bodily harm. After the denial of that motion, she petitioned for review by a single justice of this court pursuant to G. L. c. 211, § 3. The single justice denied the petition, and the juvenile appealed.

         D ...


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