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J.H. v. Commonwealth

Supreme Judicial Court of Massachusetts, Suffolk

April 12, 2018

J.H.
v.
COMMONWEALTH.

          Heard: December 7, 2017.

         Juvenile Court, Delinquent child. Practice, Criminal, Juvenile delinquency proceeding, Transfer hearing, Lesser included offense, Delay in commencement of prosecution. Due Process of Law, Notice. Notice. Rape.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 3, 2017.

         The case was reported by Lenk, J.

          Thomas A. Dougherty, III, for the juvenile. Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.

          Afton M. Templin, for Youth Advocacy Division of the Committee for Public Counsel Service, amicus curiae, submitted a brief.

          Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

          KAFKER, J.

         A single justice of the county court reserved and reported this case involving the transfer of certain charges from the Juvenile Court to adult court pursuant to G. L. c. 119, § 72A. In September, 2014, juvenile delinquency complaints were issued against the defendant for the crime of rape of a child with force (three counts) arising out of incidents that occurred seven years earlier when the defendant was sixteen years old and the complainant was thirteen years old. Because the defendant was not "apprehended" according to the statute until after his nineteenth birthday, he could not be tried in the Juvenile Court. The judge was faced with discharging the defendant or transferring the charges to adult court. After a hearing she dismissed the offenses charged for lack of probable cause but transferred the lesser included offenses, statutory rape. The defendant filed a petition for relief in the county court pursuant to G. L. c. 211, § 3.

         In her reservation and report, the single justice posed two questions to the full court:

"1. Whether G. L. c. 119, § 72A, permits a Juvenile Court judge, who has dismissed an offense charged for lack of probable cause, to order a defendant to be tried in an adult court for lesser included offenses, where the lesser included offenses are supported by probable cause.
"2. Whether, if the statute so permits, its application against this defendant would be unconstitutional for failure to have provided him with proper notice of the charges pending against him or the possibility of such a transfer."

         We conclude that G. L. c. 119, § 72A, permits a Juvenile Court judge to transfer lesser included offenses where supported by probable cause even where lesser included offenses are not expressly charged. In instances where a judge finds no probable cause of the crime charged but does find probable cause of a lesser included offense, however, the judge must give a defendant a meaningful opportunity to present evidence and argument as to why discharge, rather than transfer, of the lesser included offense is consistent with protection of the public. We also emphasize that where the charged offense is rape of a child with force and the lesser included offense is statutory rape involving consensual sexual relations between teenagers, the issues presented regarding transfer or discharge and the protection of the public are quite different.

         Here, where the judge did not inform the defendant of her probable cause rulings on the offenses charged or the lesser included offenses until her decision on the transfer itself, we conclude that the defendant was not given a meaningful opportunity to present evidence and argument why discharge and not transfer of the statutory rape charges was consistent with protection of the public. The defendant is therefore entitled to reopen the transfer hearing in order to present such evidence and argument. Lastly, we conclude that there is no merit to the defendant's contention in posthearing briefing that the seven-year delay in prosecution was done in bad faith.[1]

          1. Background and ...


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