· Procedural History
· Facts
· Holding
· Reasoning
i.
Sufficiency
of the Evidence
We conclude that there was sufficient evidence before the grand
jury of the threat of serious bodily harm to support a finding of probable
cause based on what the complainant's parents told Detective Wade the
complainant had told them—that the juvenile would “push his pants down and then
push him onto the ground” before entering him. This information is hearsay, but
a grand jury may rely on hearsay in determining probable cause.
It is a reasonable inference that the act of physically pushing
someone to the ground to be penetrated carries with it the implied threat of
bodily harm if the person were to resist. Therefore, we conclude that the judge
erred in finding the evidence insufficient to support a youthful offender
indictment.
ii.
Impairment
of the Integrity of the Grand Jury Proceeding
The judge did not err in concluding that “sufficient evidence was
withheld from the grand jury to so seriously taint the proceedings as to
warrant dismissal of the indictments”
When the prosecutor possesses evidence which would greatly
undermine the credibility of evidence likely to affect the grand jury's
decision to indict, the prosecutor must alert the grand jury to the existence
of such evidence.
Here, the prosecutor possessed the transcript and videotape of the
SAIN interview with the complainant, but did not offer either in evidence. If
he had done so, the grand jury would have learned that, contrary to Detective
Wade's testimony regarding the SAIN interview, the complainant in the SAIN
interview never stated that the juvenile “push[ed] him onto the ground” or
suggested that he had been forced to the ground by the juvenile. When the
complainant explained what he meant when he stated that the juvenile “forced”
or “ma[d]e” him engage in a particular sexual act, he clarified that the
juvenile never used physical force against him. Not only would this testimony
have contradicted Detective Wade's testimony that the complainant in the SAIN
interview had said that the juvenile “would force [him] onto the ground and
enter him from that position,” but it also would have put in question the
reliability of the parents' statement that the complainant told them the
juvenile had pushed him to the ground to have sex with him.
The prosecutor was required to furnish the grand jury with the
exculpatory information in the interview that “would greatly undermine the
credibility of evidence” regarding what in this case was a necessary element of
the youthful offender indictments—that the offense involved the infliction or
threat of serious bodily harm.
b. October 7 order dismissing the
youthful offender indictments with prejudice for failure to comply with
discovery orders.
We find no clear error in the finding that the Commonwealth failed
to provide the statistical discovery relevant to a defense of selective
prosecution that the judge had ordered, and that the failure had been
“deliberate, willful and repetitive.”
After the court issued decision affirming the discovery order with
minor modifications, the Commonwealth should have gathered the statistical
discovery and provided it to the juvenile. The prosecutor, however, reneged on
this representation, contending at the hearing that the Commonwealth no longer
was obligated to provide the discovery because the youthful offender
indictments had been dismissed and the Commonwealth intended to file a nolle
prosequi on the delinquency complaints. The judge rejected this contention and
ordered the Commonwealth to produce the discovery by August 31. The
Commonwealth failed to comply with this order, move for reconsideration, or
file a notice of appeal. Instead, the Commonwealth filed a nolle prosequi on
the delinquency complaints on September 1 and remained in violation
of the discovery order. When a hearing was held in October 7 on the juvenile’s
motion to dismiss the youthful offender indictments with prejudice, the
prosecutor brought the ordered discovery with him but refused to produce it
even after the judge offered to issue a protective order that would protect the
confidentiality of the statistical discovery.
First, no party is entitled to disregard a court order based on
its contention that the order is no longer necessary. Second, the issue of
selective prosecution had not been rendered moot, because the July 2 dismissal
of the youthful offender indictments was without prejudice and the judge
correctly understood that the Commonwealth wished to proceed with prosecution
of the juvenile on the statutory rape charges, either by seeking again to
indict him as a youthful offender or by appealing from the judge's dismissal of
the indictments. The juvenile had moved to foreclose the possibility of
continued prosecution by seeking a dismissal with prejudice, based on his claim
that he had been denied the possibility of such a dismissal on the ground of
selective prosecution by the Commonwealth's refusal to produce the ordered
statistical discovery. Where, as here, no appeal had yet been entered in an
appellate court, the judge retained jurisdiction over the case and had the
authority to change the dismissal without prejudice to dismissal with prejudice.
In addition, there was egregious prosecutorial misconduct in
repeatedly and willfully failing to comply with the discovery order. There was
also prejudice to the juvenile's right to a fair trial in that the juvenile was
denied the opportunity to develop a factual basis in support of his claim that
he was a victim of selective prosecution because the sexual conduct was
homosexual rather than heterosexual. If the evidence were to support that
claim, the juvenile may have been entitled to a dismissal with prejudice. In Commonwealth v. Washington W., 457 Mass.
140, 147, 928 N.E.2d 908 (2010), we held that the juvenile's claim of selective
prosecution was “sufficiently serious to warrant further inquiry” and that the
juvenile was entitled to most of the statistical data sought in discovery to
develop a factual basis to support his allegations. Without the ordered
statistical data, the juvenile lost the opportunity to move for a dismissal
with prejudice on the ground of selective prosecution, and faced the risk of
renewed prosecution if the Commonwealth were to seek new youthful offender
indictments from a grand jury or were to prevail in its appeal from the judge's
July 2 order. The only way to cure the denial of this lost opportunity was to
grant the juvenile the relief he potentially could have obtained had he
received the ordered discovery and demonstrated that he was a victim of
selective prosecution.
· Disposition
For the foregoing reasons, we affirm the Juvenile Court judge's
July 2, 2010, order dismissing the youthful offender indictments without
prejudice, and the October 7, 2010, order dismissing the indictments with
prejudice. (EH)
