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Commonwealth v. Demetrius D.

Appeals Court of Massachusetts, Norfolk

September 14, 2018

DEMETRIUS D., [1] a juvenile.

          Heard: March 8, 2018.

         Complaint received and sworn to in the Norfolk County Division of the Juvenile Court Department on November 11, 2013. Indictments found and returned in the Norfolk County Division of the Juvenile Court Department on January 6, 2014.

         A pretrial motion to suppress evidence was heard by Mary M. McCallum, J., and the cases were tried before her.

          Elizabeth Caddick for the juvenile.

          Marguerite T. Grant, Assistant District Attorney, for the Commonwealth.

          Present: Wolohojian, Milkey, & Englander, JJ.

          WOLOHOJIAN, J.

         The juvenile was convicted, as a youthful offender (G. L. c. 119, § 54), on two indictments for aggravated rape of a child with force (G. L. c. 265, § 22B [a.]), and one indictment each for kidnapping (G. L. c. 265, § 26), indecent assault and battery on a child under fourteen (G. L. c. 265, § 13B), intimidation of a witness (G. L. c. 268, § 13B), and assault and battery by means of a dangerous weapon, to wit, a shod foot (G. L. c. 265, § 15A [b]), [2] all arising from his attack on an eleven year old boy. At the time of the incident, the juvenile was in the custody of the Department of Children and Families (department) and living in foster care. He now appeals, raising several arguments.

         First, the juvenile argues that evidence seized from his bedroom at a foster home where he had been placed should have been suppressed because the department should not have disclosed his address to the police. Second, he argues that defense counsel should have been allowed to comment to the jury about the absence of any identification, even though the exclusion of in-court identifications was the result of his successful opposition to the Commonwealth's motion in limine to permit certain witnesses to make such identifications, and there had been no out-of-court identifications. He also challenges the sufficiency of the evidence on the charge of kidnapping and the admission of expert fingerprint testimony. We affirm.

         Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following. On October 31, 2013, the juvenile was fifteen years old, approximately five feet, three inches tall, on the thin side, and had "brownish" hair and a light brown complexion. He lived with a foster family in a town south of Boston. So that the juvenile could participate in Halloween, employees of the department had bought him a costume consisting of a black vest with the word "SWAT" written on it in white lettering, a black SWAT or military-type hat, and a black "North Face" brand jacket. Wearing this costume, a pair of black "Air Jordan" sneakers, and carrying a black "Michael Jordan" backpack, the juvenile left his foster home to go trick-or-treating.

         At the same time, eleven year old Jason[3] was trick-or-treating nearby with four female schoolmates. When they were near the local high school, they were approached by the juvenile, who asked if he could join them. None of them knew the juvenile, [4]who said his name was "Devon" or "Deron." Jason felt sorry that the juvenile was all alone and agreed to let him join the group. Shortly thereafter, however, the girls, who were scared and uncomfortable being in the company of the juvenile, decided to break off on their own. They urged Jason to come with them, but he declined because he did not want to leave the juvenile by himself. Jason and the juvenile, therefore, continued trick-or-treating on their own for approximately the next two hours.[5]At some point during the evening, the juvenile told Jason that he was going to move to a different town.

         Each boy carried a drink: the juvenile, a can of "Monster" energy drink; Jason, a bottle of "Brisk" iced tea. At one point, while on a side street, the juvenile left his drink in the middle of the road. The can, which was later recovered, bore a latent fingerprint that matched the juvenile's right thumb. After some time, the two boys turned down another side street, a short cul-de-sac. The street was not well lit and, while it was lined with houses, there was no one about. As they neared the dead end, the juvenile abruptly grabbed Jason's bag of candy and started to walk away. Jason, unsure of the juvenile's intentions, began to cry. At that, the juvenile turned around, came back, and returned the bag. However, he then placed Jason in a choke hold and punched his head and face, causing Jason's nose to bleed. The juvenile then pushed Jason to the ground, kicked him in the head and body, and then instructed Jason to strip. Jason, having unsuccessfully tried to escape and in fear for his life, did as he was directed. The juvenile then pulled down the front of his own pants and forced Jason to perform fellatio. He then told Jason to bend over, and proceeded to anally penetrate the younger boy with his penis. Eventually, the juvenile stopped; he then resumed kicking Jason while threatening to kill Jason's family if he told anyone what had occurred. The juvenile instructed Jason to stay on the ground and not to move or else he would return to beat him again. He urinated on Jason and then doused him with his (Jason's) iced tea. Finally, the juvenile walked away, leaving Jason lying in the street.

         Jason remained in the street, afraid to move lest the juvenile make good on his threat to return. From that position, Jason called 911 twice (the first call was disconnected). Although the recordings of those calls show Jason to be filled with fear, he nonetheless managed to provide a good description of his assailant (i.e., dressed all in black and wearing a SWAT vest and a black hat as a costume) as well as many of the details of the attack. When police arrived, Jason's costume, clothes, sneakers, candy, and iced tea bottle were strewn about, and the area smelled of urine.[6]There was also a blood stain on the pavement. Jason himself smelled of urine and had visible injuries to his nose, upper lip, cheeks, head, wrist, and elbow.

         After interviewing Jason and the four girls, the police released a dispatch looking for a "[l]ight skin, Cape Verdean, black or Hispanic male, thin, light-colored hair, between 5' 3" and 5' 5" in height, wearing a SWAT costume, a SWAT vest with the letters 'SWAT' in white lettering across the front, black or dark-colored pants, dark-colored sneakers, and also a black Michael Jordan backpack." No one matching the description was located that night. The following afternoon, however, two clerks at a nearby convenience store stated that they had earlier that day observed a boy at a house across the street, carrying bags and other items out of the house and placing them in a car, as if in the process of moving. One of the items was a black vest with the word "SWAT" written on it. The house belonged to the juvenile's foster family.

         From the foster father, the police learned that the boy they were looking for was the juvenile and that he was in the custody of the department. They also learned that, earlier that afternoon, the department had moved the juvenile to a new foster home in another town. The foster father knew the name of the town, but not the street address. The police, therefore, contacted the department, which disclosed the address to them.

         At the second foster home, the juvenile's new foster father confirmed that the juvenile had moved in and that he had placed his belongings in a bedroom. After inviting the police into the home, the foster father led them to the bedroom, where they observed several bags, a black Michael Jordan backpack, and a black vest with the word "SWAT" in white lettering across the front. The police seized these items, and subsequently obtained a warrant to search them. In the bags, they found a pair of black "Air Jordan" sneakers, a black "North Face" brand jacket, and a black SWAT or military-type hat. The backpack was full of Halloween candy.


         1. Motion to suppress.

         The juvenile argues that the items seized from his bedroom at the second foster home should have been suppressed because the seizure resulted from the department's disclosure of his address, which he contends the department was required to hold confidential.[7]Specifically, he maintains that, under 110 Code Mass. Regs. ยงยง 12.00 (2008) and related statutes, his address, to the extent that it was in the possession of the department, was confidential and could not be disclosed to the police as it was here. Although we set out ...

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