Heard: March 8, 2018.
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.
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
Present: Wolohojian, Milkey, & Englander, JJ.
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]),
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.
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.
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.
same time, eleven year old Jason 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, 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.At some point during the
evening, the juvenile told Jason that he was going to move to
a different town.
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.
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.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.
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.
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.
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
Motion to suppress.
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.Specifically, he maintains that,
under 110 Code Mass. Regs. §§ 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 ...