Opinion
No. 15–P–1083.
07-25-2016
COMMONWEALTH v. CARA C., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from a Juvenile Court judge's dismissal prior to arraignment of a delinquency complaint charging assault and battery against the juvenile. We reverse.
Background. 1. Underlying incidents. In December, 2014, the alleged victim, forty-four year old Thomas King, and his wife had been having problems with their fifteen year old daughter. King and his wife attributed the daughter's behavioral issues in large part to the time she had been spending with the fifteen year old juvenile, whom they believed to be a bad influence.
We recite the facts as they were presented to the Juvenile Court clerk-magistrate in support of the application for complaint, including some of the conflicts in that evidence.
On the afternoon of December 28, 2014, King and his daughter were arguing about whether she could leave the family home. The daughter stated that King tried to physically restrain her from leaving the house, prompting her to kick him in “the thigh” and run out the back of the house. King, without mentioning any attempt to physically restrain his daughter, stated that she kicked him in the groin or “privates” before running away.
After the daughter left, King enlisted the assistance of his neighbor (who was also fifteen years old) to help locate the daughter. King and the neighbor found her at a local park in the company of the juvenile. Although the accounts of what transpired next differ in material respects, it appears that yelling between the parties ultimately erupted into physical violence. It is undisputed that during the verbal exchange, King called the juvenile, who is African–American, a “nigger.” It is also undisputed that when King went either to speak to his daughter or to make physical contact with her to “assist” her home, the juvenile intervened, blocking his access.
According to King, the juvenile “jumped” him and punched him. He said that when he tried to restrain her, they both fell to the ground. He stated that the juvenile held him by his elbow and that he fell down while trying to push her off. He stated that the juvenile got on top of him and punched and kicked him in the face, and that he sustained scrapes to his shoulder. He said that she kicked him when he tried to get up. He also said that while on the ground, he tried to bear hug the juvenile in an attempt to restrain her.
The juvenile denied kicking King or punching him in the face. According to her, King was charging at his daughter and she put herself between them. King told her to get out of his way and punched her in the areas of her nose and chest before tackling her or trying to push her to the ground. She stated that she was then able to punch him and run home, but denied punching him repeatedly when she was on top of him. King denied ever hitting the juvenile.
Either during or after the altercation, the daughter left for the juvenile's home. The juvenile followed. Police later responded and interviewed all involved. King's account is generally corroborated by the neighbor, while the juvenile's account is generally corroborated by the daughter. One of the responding officers observed blood on the right side of King's face and a large scrape on his shoulder, though King declined medical attention. The juvenile denied sustaining any injuries, and no injuries were observed by the police. She attributed King's injuries to contact with the concrete on the ground.
The police advised King and his wife that they would be seeking charges against the juvenile and the daughter.
2. Complaint process. The following day, December 29, 2014, one of the responding police officers submitted an application to the Juvenile Court for a criminal complaint charging the juvenile with assault and battery. The application included the narrative police report, handwritten witness statements prepared by King, the neighbor, the juvenile, and the daughter on preprinted police forms, and photographs of King's injuries. A show cause hearing was held before a clerk-magistrate on January 20, 2015. The juvenile and King both testified.
Based on the statements in the application and the testimony at the hearing, the clerk-magistrate found probable cause and issued a delinquency complaint against the juvenile.
3. Motion to dismiss. On February 12, 2015, the juvenile moved to dismiss the delinquency complaint prior to arraignment pursuant to Commonwealth v. Humberto H., 466 Mass. 562 (2013), arguing that she had been “reasonably provoked” by King. A nonevidentiary hearing was held on February 19. At the conclusion of the hearing, the judge dismissed the complaint over the Commonwealth's objection, stating that she believed that the juvenile was the victim of King's “out-of-control” behavior.
Although a complaint had also issued against the daughter, the Commonwealth filed a nolle prosequi on March 5, 2015.
In response to the Commonwealth's motion for written findings, the judge issued a written decision on the dismissal. She reasoned that while there was no dispute that the juvenile and King engaged in an altercation which resulted in injuries to King, the ultimate issue was whether there was probable cause to believe that the juvenile intentionally or recklessly touched King, thereby causing his injuries. The judge wrote that she “gave very little weight to the oral and written statements of Mr. King and [the neighbor], since they contain inconsistencies throughout,” and that she found “the trustworthiness of these statements to be tenuous at best.” She found the statements of the juvenile and the daughter more credible. The judge concluded that “[t]here is simply not enough reasonably trustworthy information to conclude that the [j]uvenile intentionally or recklessly caused injury to Mr. King.”
Discussion. 1. Standard of review. We review a motion judge's determination on the issue of probable cause on a motion to dismiss de novo. Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015). “The probable cause standard on a motion to dismiss a [delinquency] complaint is identical to that applied in the analysis of a motion to dismiss an indictment for lack of probable cause.” Ibid. “To establish probable cause, the complaint application must set forth ‘reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.’ “ Commonwealth v. Humberto H., 466 Mass. at 565. Our review of the judge's order of dismissal is confined to the material submitted to the clerk-magistrate in support of the application for complaint. Ilya I., 470 Mass. at 626. “This evidence is ‘viewed in the light most favorable to the Commonwealth.” ‘ Commonwealth v. Rodriguez, 75 Mass.App.Ct. 235, 238 (2009), quoting from Commonwealth v. Levesque, 436 Mass. 443, 444 (2002).
It does not appear that the live testimony before the clerk-magistrate was preserved. As the parties have done, we consider the written summary of that testimony prepared by the clerk-magistrate.
“[A] Juvenile Court judge, in his or her discretion, may allow a motion to dismiss before the arraignment of a juvenile where the judge concludes that prearraignment dismissal is in both the best interests of the child and the interests of justice.” Humberto H., 466 Mass at 563. As we understand Humberto H., however, the best interests of the child and the interests of justice only become relevant on the question of prearraignment dismissal once a judge has already concluded that the delinquency complaint is not supported by probable cause. See id. at 576 (“Although a Juvenile Court judge is powerless to expunge a CARI record where a delinquency charge is brought without probable cause, the judge is not powerless to act before arraignment to prevent the creation of a CARI record where the charge was issued without probable cause, and where doing so would serve both the best interests of the child and the interests of justice” [emphasis added] ). Because we conclude that the complaint here was supported by probable cause, we do not address the best interests of the child or the interests of justice.
On appeal, the juvenile asserted for the first time that the Commonwealth's pursuit of this complaint raises selective prosecution issues. As clarified by her counsel at oral argument, and as reflected in her brief, she does not seek to raise an equal protection claim, but only to draw attention to a consideration relevant to an analysis of the interests of justice under Commonwealth v. Humberto H., supra. Because we need not reach the interests of justice prong of the Humberto H. analysis, we likewise need not reach this issue as it has been framed on appeal. In addition, to the extent the juvenile seeks dismissal based on a claim of selective prosecution in its own right, such claim is properly first developed in the trial court. See Commonwealth v. Washington W., 457 Mass. 140, 143 (2010) (juvenile has initial burden of demonstrating selective enforcement; once juvenile makes this showing Commonwealth must rebut inference or suffer dismissal).
2. The probable cause analysis. “The complaint application must include information to support probable cause as to each essential element of the offense.” Id. at 565–566. “An assault and battery is ‘the intentional and unjustified use of force upon the person of another, however slight,’ or the intentional commission of a wanton or reckless act (something more than gross negligence) causing physical or bodily injury to another.” Commonwealth v. Burno, 396 Mass. 622, 625 (1986) (citations omitted).
Viewed in the light most favorable to the Commonwealth, the accounts of the altercation provided by King and the neighbor provide a sufficient showing on the elements of intentional assault and battery to warrant a prudent person in concluding that the juvenile assaulted and beat King by punching him in the face and then punching and kicking him once they were on the ground.
Our conclusion is not undermined by the juvenile's denials or the irreconcilable conflicts between the accounts of King and the neighbor and those of the juvenile and the daughter. Any doubts about King's credibility cannot be resolved by means of a motion to dismiss for lack of probable cause. While a court determining whether a cold record “can support a finding of probable cause” will, where necessary, “make an independent examination of the facts, the findings, and the record,” it does not “appraise contradictory factual questions.” Beck v. Ohio, 379 U.S. 89, 92 (1964) (quotation omitted). See Commonwealth v. Lester L., 445 Mass. 250, 258 (2005) (“The probable cause to arrest standard, by its nature, focuses on whether the information available ... meets a certain threshold and does not call for testing the information through adversary procedures. This determination ‘does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt,’ “ quoting from Gerstein v. Pugh, 420 U.S. 103, 121 [1975] ).
Far from compelling a conclusion that probable cause was lacking to support the complaint, the conflicting evidence suggests that there may have been probable cause to charge both the juvenile and King-a decision within the province of the prosecuting agency, not the court.
Although credibility can be relevant to the probable cause determination, it is generally a question of fact for a fact finder hearing live testimony. Only the clerk-magistrate heard live testimony here. “In spite of [any] inconsistencies with the witness's testimony, the [clerk-magistrate] still found that there was probable cause [for the complaint to issue]....” Commonwealth v. Badgett, 38 Mass.App.Ct. 624, 626 n. 5 (1995). We can only assume that the clerk-magistrate believed enough of King's testimony to issue the complaint. Any further weighing of credibility was for the fact finder at trial, not for a motion judge at a nonevidentiary hearing.
We are also unpersuaded on de novo review that the inconsistencies within and between the accounts of King and the neighbor can defeat probable cause here. The motion judge concluded that the “accuracy of Mr. King's description of events varied each time he recited them.... These variances in the details of the altercation raise serious doubts about Mr. King's recollection of events.” But the discrepancies highlighted by the motion judge are of the kind that would be expected when multiple witnesses describe the same event at different times and in different formats (handwritten statements, statements to investigators, testimony before a clerk-magistrate), sometimes omitting details previously mentioned and sometimes adding new ones. None of the inconsistencies renders the statements untrustworthy for probable cause purposes. The untrustworthiness contemplated by the case law is more in the nature of unsubstantiated rumors. Cf. Beck, 379 U.S. at 91, 94 (probable cause standard requiring “reasonably trustworthy information” not satisfied where record did not contain “any indication of what ‘information’ or ‘reports' the officer had received” beyond a picture of the defendant and his record of similar offenses). It is for the adversarial process to sort out the fact of the matter.
Similar reasoning applies to the juvenile's asserted defense of provocation. There are situations where a valid and complete affirmative defense that appears clearly and without contradiction can defeat probable cause. See, e.g., Commonwealth v. Landry, 438 Mass. 206, 208, 211 (2002). See also Commonwealth v. Walczak, 463 Mass. 808, 821 n. 13 (2012) (Lenk, J., concurring). This is not such a case. Short of undisputed evidence manifesting the legality of the defendant's conduct, ibid., the concept of “provocation” as we understand the parties to have used it here, like other defenses that mitigate, justify, or excuse what would otherwise be a crime, is commonly a trial issue. See Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998) ; Commonwealth v. Benoit, 452 Mass. 212, 228 (2008). “A judge considering a motion to dismiss should not confuse the question of probable cause to arrest with questions more properly resolved by the fact finder at trial.” Commonwealth v. Bell, 83 Mass.App.Ct. 61, 64 (2013). “The Commonwealth is not required to present evidence of so-called defenses or otherwise disprove such matters before the grand jury. Evidence that the defendant fired in self-defense need not preclude an indictment charging murder.” Commonwealth v. Silva, 455 Mass. 503, 511 (2009).
“[T]he presence of ... reasonable provocation ... mitigates murder to voluntary manslaughter.” Commonwealth v. Walczak, 463 Mass. at 819 (Lenk, J., concurring). But this is not a murder case. We use the term “provocation” here in this assault and battery case, as the parties appear to have done, loosely to connote evidence before the clerk-magistrate that could provide a possible excuse or justification that would defeat an essential element of the assault and battery charge. We refer to provocation case law only analogously and express no opinion on the viability of a provocation defense at trial in the case at hand. See Comeau v. Currier, 35 Mass.App.Ct. 109, 112–113 (1993) (“In [a civil] action for assault and battery, evidence of provocation at the time of the assault, whether by words or conduct, is admissible in mitigation of damages.... [E]ven though provocation is not a defense to an assault and battery, it is an issue which is not necessarily distinct from liability”). See also Commonwealth v. Ford, 5 Gray 475, 477–478 (1855) (“The evidence which was given of the provocation received by the defendant did not show a justification of the battery which the jury found that he inflicted. The instructions to the jury on this point were right and sufficient”).
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It cannot be denied that collateral consequences arise even from the issuance of a complaint, especially against a juvenile, and arraignment thereon. However, we conclude that the application for complaint here furnished sufficient probable cause. We cannot “infringe on the wide discretion afforded the Commonwealth to prosecute particular defendants. This prosecutorial discretion is exclusively vested in the executive branch.” Commonwealth v. Clerk–Magistrate of the W. Roxbury Div. of the Dist. Ct. Dept., 439 Mass. 352, 359–360 (2003) (citation omitted). See Commonwealth v. Washington W., 457 Mass. 140, 142 (2010). While the motion judge expressed concerns about the Commonwealth's charging decisions, it is not within our province in this appeal to invalidate those determinations.
Conclusion. The order allowing the motion to dismiss is reversed, the complaint is reinstated, and the case is remanded for proceedings consistent with this memorandum and order.
So ordered.