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Commonwealth v. Buono

Superior Court of Massachusetts, Norfolk

December 26, 2018

Commonwealth
v.
Reynold Buono

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Connors, Thomas A., J.

          MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS

          Thomas A. Connors Justice of the Superior Court

         On November 3, 2017, a Norfolk County grand jury returned six indictments alleging that between September 1, 1981 and July 7, 1982, the defendant Reynold Buono forcibly raped a child under G.L.c. 265, § 22A and committed statutory rape under G.L.c. 265, § 23. The defendant now moves for dismissal pursuant to Mass.R.Crim.P. 13 on the ground that the grand jury heard insufficient evidence to warrant issuance of the indictment. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982).

         On November 5, 2018, the Court conducted a non-evidentiary hearing on the defendant’s motion to dismiss. For the reasons that follow, the motion is Allowed.

         Legal Standard

         "Generally a court will not inquire into the competency or sufficiency of the evidence before the grand jury." Commonwealth v. Coonan, 428 Mass. 823, 825 (1999). However, under the limited exception recognized in Commonwealth v. McCarthy, supra, "a court must dismiss an indictment" where the grand jury fails to hear "enough evidence to establish the identity of the accused and to support a finding of probable cause to arrest the accused for the offense charged" (footnote omitted). Commonwealth v. Rex, 469 Mass. 36, 40 (2014). Probable cause to arrest "requires more than mere suspicion but something less than evidence sufficient to warrant a conviction." Commonwealth v. Hason, 387 Mass. 169, 174 (1982). To satisfy the probable cause standard, the evidence before the grand jury "must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense." Commonwealth v. Roman, 414 Mass. 642, 643 (1993); see Commonwealth v. Santiago, 452 Mass. 573, 576-77 (2008), quoting from Commonwealth v. Fraser, 410 Mass. 541, 545 (1991) ("factors ‘innocent of themselves, ’ when combined may amount to probable cause"). In passing upon a motion to dismiss an indictment, a court views the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Caracciola, 409 Mass. 648, 649 n.1 (1991).

         Factual Background

         The evidence presented to the grand jury was as follows.

         In 2017, Milton Academy engaged in a confidential investigation into acts of sexual misconduct that may have been perpetrated by adults affiliated with the Academy during prior years. As a result of the investigation, the school filed two sets of reports concerning past allegations of child abuse by such individuals with the Department of Children and Families (DCF) as a mandated reporter pursuant to G.L.c. 119, § 51A. One of these reports filed on March 8, 2017 alleged that Reynold Buono, the head of the theater program at Milton Academy from 1975 to 1987, had sexually assaulted a fifteen-year-old male student. The 51A report alleged that Buono, age 36 at the time, abused the victim during a bike trip to Europe in the summer of 1981 and during the 1981-1982 school year at the defendant’s apartment on campus at Milton Academy and at the victim’s family home in Cape Cod, Massachusetts. A referral was thereafter made to the Norfolk County District Attorney’s Office for further investigation. Detective Valter Pires of the Milton Police Department testified that he interviewed the alleged victim as well as the victim’s friend as part of the investigation into the defendant. Detective Pires’ testimony is summarized as follows.

         The victim attended Milton Academy from 1978 to 1985. In 1981, the summer before the victim entered the ninth grade, he, along with several other students from the school, participated in a bike trip in Europe which Buono conducted annually. While in Venice, Italy, the participants stayed at a small inn where there was not enough beds for everyone to have their own. The victim was selected to sleep in a bed with Buono. That evening, the students and Buono went out for dinner and drank alcohol. Upon returning to the inn, the victim fell asleep. At some point, the defendant started snuggling with him The victim described Buono’s actions as "weird" and stated, "I had been drinking and didn’t know what was happening. I panicked. I was confused and embarrassed." (Grand Jury Investigation, Exh. 1 at 9, lines 20-23.) As the victim attempted to get away from Buono, Buono grabbed the victim’s penis. The next morning, the victim told his friend what had taken place.

         The friend told Pires that while in Venice, the victim had told him that he had been molested by Buono. The victim had said he had been terrified and had pretended to sleep. His friend was not surprised by Buono’s actions because, as he explained, "We all knew that [Buono] was this menace and had previously tried this stuff." (Grand Jury Transcript at 8, lines 23-24.) The victim’s friend further stated that on the same bike trip, Buono had hugged him and would not let him go and that later, he had told Buono that he could not engage in such behavior with him.

         While in Venice, the victim’s friend confronted Buono about what he had done to the victim. He said to Buono, "you fucked up last night," and Buono responded, "You’re right, I did and I won’t do it again." (Grand Jury Transcript at 9, lines 10-11, 20-21.)

         After returning from the bike trip, the victim’s mother, unaware of what had transpired during the trip overseas, invited Buono to the victim’s family home in Cape Cod. While visiting the home, Buono attempted to touch the victim’s penis on several occasions but each time, the victim rebuffed him and walked away. Without having any knowledge of his conduct towards her son, the victim’s mother requested that Buono serve as his academic advisor for the upcoming school year at Milton Academy.

         As a ninth grader at Milton Academy, the victim struggled academically. Buono began conducting tutoring sessions with him at Buono’s apartment on campus. During the tutoring sessions, Buono would offer the victim beer and dinner and make advances toward him which the victim resisted. At several tutoring sessions, Buono touched the victim’s penis over his clothing. The advances eventually became more intrusive. The victim told Detective Pires that "[o]n two or three occasions [Buono] gave me a blowjob by putting his mouth on my penis." (Grand Jury Investigation, Exh. 1 at 11, lines 15-16.) At that time the victim was fifteen years old and described himself as "unhappy," "confused," and at times suicidal. (Grand Jury Investigation, Exh. 1 at 11, lines 19-20.)

         The victim’s friend recalled that the sexual advances and inappropriate touching between Buono and the victim continued after they returned from the bike trip in Italy.[1] Knowing that the victim was depressed, his friend asked his permission to speak with his (the friend’s) mother about what had taken place between Buono and the victim in Italy. The victim’s friend’s mother then spoke with both the assistant headmaster at Milton Academy, Mike Theobald, and the victim’s mother concerning what she had been told by her son. The victim’s mother then wrote a letter to Milton Academy and also met with Theobald. The victim and his mother were advised that Buono would not be allowed to ...


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