COMMONWEALTH v. JOE (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order issued by a judge of the Juvenile Court, dismissing a delinquency complaint against the juvenile based on a finding that it was not supported by probable cause. We reverse and remand for further proceedings.

The case is controlled in material respects by Commonwealth vs. Irvin I., Mass. App. Ct. No. 20-P-372, slip op. (July 13, 2021). As explained in that case, “[t]he probable cause portion of the transfer hearing in the Juvenile Court ‘serves the same function as a bind-over probable cause hearing in the District Court.’ Ulla U. v. Commonwealth, 485 Mass. 219, 228 (2020), citing [Commonwealth v.] Nanny, 462 Mass. [798,] 805 [2012].” Irvin I., supra at 6. “ ‘The probable cause to bind over standard requires a judge to view the case as if it were a trial and to determine whether the Commonwealth has presented sufficient legally competent evidence to send the case to a jury.’ Paquette v. Commonwealth, 440 Mass. 121, 132 (2003), cert. denied, 540 U.S. 1150 (2004). ‘[The judge] should dismiss the complaint when, on the evidence presented, a trial court would be bound to acquit as a matter of law.’ Commonwealth v. Teixeira, 475 Mass. 482, 489 n.14 (2016), quoting Myers v. Commonwealth, 363 Mass. 843, 849 (1973).” (Footnote omitted.) Irvin I., supra at 7-8. Contrary to the juvenile's contention, however, the judge is not free to assess the weight and credibility of the evidence, except to the extent that no rational finder of fact could credit the evidence. See id. at 9.²

In the present case, the evidence included testimony by the victim that the juvenile twice sexually assaulted the victim, including penetration, when the victim was between two and four years old and the juvenile was between fifteen and seventeen years old. Certain aspects of the victim's testimony were inconsistent with testimony given by other witnesses, while other aspects of the victim's testimony were corroborated. Thus, the inconsistencies did not render the victim's testimony “so insubstantial that ‘no reasonable person could rely on it.’ ” Irvin I., supra at 10, quoting Commonwealth v. Reese, 438 Mass. 519, 526 (2003). Accordingly, the finding of no probable cause was error, and the matter must be remanded for a determination “whether it is in the interests of the public to order that a criminal complaint issue against the juvenile, or whether discharge is consistent with the protection of the public.” Irvin I., supra at 11. See G. L. c. 119, § 72A.

The order dismissing the complaint and discharging the juvenile is vacated, and a finding of probable cause shall enter. The matter is remanded for further proceedings consistent with this decision.

So ordered.

vacated and remanded

FOOTNOTES

2.   The juvenile is correct in his contention that the proper standard is not the same as applied to a motion for directed verdict at a criminal trial. See Commonwealth v. Blanchette, 54 Mass. App. Ct. 165, 173 n.8 (2002). Compare Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). However, some aspects of the difference in the two standards do not inure to his benefit; because a probable cause hearing does not require proof beyond a reasonable doubt, the standard for probable cause at a transfer or bind over hearing requires only the “minimum quantum of evidence” that is “more than that for probable cause for arrest but less than would ‘prove the defendant's guilt beyond a reasonable doubt’ ” (emphasis added). Commonwealth v. Bruno, 432 Mass. 489, 509 (2000), quoting Myers, 363 Mass. at 850. See Myers, supra (probable cause to bind over “is somewhat analogous in function to [a judge's] ruling on a motion for a directed verdict at trial”).