Commonwealth v. Nick N.

486 Mass. 696

160 N.E.3d 1223

COMMONWEALTH

v.NICK N., a juvenile.

SJC-12964

Supreme Judicial Court of Massachusetts, Norfolk..

Argued November 4, 2020

Decided January 26, 2021

Peter A. Hahn, Newton, for the juvenile.

Laura A. McLaughlin, Assistant District Attorney, for the Commonwealth.

Dennis M. Toomey, Boston, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

KAFKER, J.

This case involves the appropriate application of the rules of evidence and discovery procedures to Wallace W. hearings, as well as further clarification of when a Wallace W. hearing must be used to prove that a juvenile has committed a first offense of a six months or less misdemeanor under G. L. c. 119, § 52. See Wallace W. v. Commonwealth, 482 Mass. 789, 800-801, 128 N.E.3d 581 (2019). In this case, the juvenile is alleged to have committed a major misdemeanor of assault and battery against another minor, followed by a minor misdemeanor¹ of accosting and annoying the same victim in a separate, later incident. The Commonwealth moved for a Wallace W. hearing to prove the greater offense, and the Juvenile Court judge reported three questions of law regarding waiver, evidentiary rules, and discovery procedures for Wallace W. hearings to the Appeals Court. We thereafter allowed the juvenile's application for direct appellate review.

We conclude that (1) the Commonwealth may proceed directly to trial on the greater offense that preceded the first offense of a minor misdemeanor, but the Commonwealth may not arraign on the minor misdemeanor until it proves the greater offense; (2) the failure of a juvenile to move for a prearraignment Wallace W. hearing on a first offense of a minor misdemeanor does not provide subject matter jurisdiction over the first offense, as subject matter jurisdiction cannot be conferred by waiver and can be raised by either party or the court at any time; (3) the evidentiary rules laid out in Commonwealth v. Durling, 407 Mass. 108, 114-119, 551 N.E.2d 1193 (1990), apply to Wallace W. hearings; (4) notice of the alleged violation and some exchange of discovery are required prior to Wallace W. proceedings, and the Juvenile Court Department should promulgate appropriate rules surrounding discovery procedures to provide clarity and consistency going forward.²

1. Facts and procedural history.³ On April 23, 2019, a fourteen year old student, Tina,⁴ reported to Detective Christopher M. Jones, a school resource officer, that a fifteen year old male student, the juvenile, had been making inappropriate comments and gestures toward her and that she was uncomfortable attending class with him. At a subsequent meeting in the presence of her mother on May 4, 2019, Tina elaborated on some of these incidents. Starting a few months prior to the meeting, the juvenile had touched her on her arm and her back without permission. About two months prior to the meeting, he punched her arm, causing it to bruise. She shouted, catching the attention of the dean of students, who suspended the juvenile. On another occasion, the juvenile made explicit sexual comments and gestures to the alleged victim in the school cafeteria. In a separate encounter, he told her "you're my property," in response to her refusal to answer his question about where she had been.

On July 18, 2019, a delinquency complaint issued against the juvenile, charging him with accosting or annoying another person ( G. L. c. 272, § 53 ) and assault and battery ( G. L. c. 265, § 13A ).⁵ The former is a misdemeanor punishable by six months in a jail or house of correction; the latter is a misdemeanor punishable by not more than two and one-half years in a house of correction. The juvenile has no prior record. Defense counsel filed a motion for diversion on August 13, 2019. In that motion, the juvenile also raised the issue of the Juvenile Court's jurisdiction over the accosting and annoying charge based on our decision in Wallace W., arguing that the charge must be dismissed as a first offense under § 52 for lack of jurisdiction.⁶ On August 20, 2019, the Commonwealth moved for and the judge granted a prearraignment evidentiary hearing pursuant to Wallace W. to prove beyond a reasonable doubt that the juvenile committed the assault and battery offense such that the Juvenile Court could exercise jurisdiction over the accosting or annoying offense and arraign the juvenile on that charge. In preparation, the Commonwealth filed a motion for the juvenile's school records, which was granted. The juvenile filed a motion in limine to exclude hearsay testimony regarding Tina's allegations.

At the scheduled Wallace W. hearing, the Commonwealth was ready to proceed with three witnesses, intending to elicit hearsay statements of the alleged victim. The parties disagreed as to whether hearsay should be admitted in evidence at the hearing. The judge indicated she would report a question of law regarding whether the rules of evidence apply at a Wallace W. hearing, and did not hold the hearing or arraignment. The juvenile filed a motion to report a question of law on October 7, 2019. The Juvenile Court judge reported three questions to the Appeals Court:

1. "Where the juvenile does not move for a prearraignment Wallace W. hearing, can the issue be waived?"

2. "Do the rules of evidence apply when the court conducts a pre-arraignment Wallace W. [h]earing? Specifically, is hearsay permitted?"

3. "Should there be an exchange of discovery prior to the court hearing a pre-arraignment evidentiary hearing pursuant to Wallace W. ?"

We granted the juvenile's application for direct appellate review.

2. Discussion. a. Appropriateness of a Wallace W . hearing in this case. In Wallace W., 482 Mass. 789, 128 N.E.3d 581, we interpreted the meaning of first offense of a minor misdemeanor in G. L. c. 119, § 52. This statute excludes from the definition of "[d]elinquent child," and therefore from the jurisdiction of the Juvenile Court, any child between the ages of twelve and eighteen years old who commits "a first offense of a misdemeanor for which the punishment is a fine, imprisonment in a jail or house of correction for not more than [six] months or both such fine and imprisonment." We held that the Legislature could not have intended to create a "Catch-22" in which, in the absence of a record of an adjudication of delinquency for someone whose first offense was dismissed, "every subsequent commission of a six months or less misdemeanor would seemingly have to be dismissed as a ‘first offense.’ " Wallace W., supra at 790-791, 128 N.E.3d 581. We therefore defined "the means by which a first offense, even one that did not result in a prior delinquency adjudication, may be proved and recorded such that the Juvenile Court may exercise jurisdiction over subsequent [minor misdemeanor] offenses," a process that has come to be known as a Wallace W. hearing. Id. at 791, 128 N.E.3d 581.

In this case, the Commonwealth first moved for a Wallace W. hearing in the Juvenile Court, and then argued in its brief to this court that the juvenile is not entitled to a Wallace W. hearing because he is charged with a greater offense alongside his minor misdemeanor. The juvenile argues that the greater offense must be proved before the Juvenile Court has jurisdiction over his minor misdemeanor.

As we explain in Commonwealth v. Manolo M., 486 Mass. ––––, ––––, ––– N.E.3d ––––, 2021 WL 245736 (2021), also released today, the Legislature's use of "first offense of a [minor] misdemeanor" in § 52 excludes the first episode of minor misdemeanor misconduct from the Juvenile Court's jurisdiction where there has been no prior adjudication of delinquency. In the case before us, however, the alleged facts indicate that the juvenile committed a greater offense (assault and battery) in a separate episode, prior to the minor misdemeanor behavior (accosting and annoying). The Commonwealth may therefore proceed to arraign and try to prove the greater offense without a Wallace W. hearing, as the § 52 exclusion does not apply to greater offenses. The Commonwealth need not, in this case, hold a Wallace W. hearing, as the greater offense can be proved at trial without a prior Wallace W. hearing. There is no need for duplicative proceedings to arraign on major misdemeanors or felonies.⁷

If the greater offense is proved, the Commonwealth may then arraign the minor misdemeanor charges, because the minor misdemeanor is alleged to have occurred later in time and therefore would not be a first offense. Until it is proved that the minor misdemeanor is not a first offense, the Juvenile Court does not have jurisdiction over it, even though it is charged simultaneously with a greater offense.⁸ Manolo M., 486 Mass. at ––––, ––– N.E.3d –––– ("First episodes of minor misdemeanor level conduct must be dismissed as a first offense, even if they are accompanied by more serious charges").

b. Waiver. The first of the reported questions, albeit unclearly phrased, appears to ask whether jurisdiction over the minor misdemeanor may be conferred by waiver when the juvenile does not request a Wallace W. hearing regarding the minor misdemeanor. In this case, the waiver argument is particularly muddled. The Commonwealth requested a Wallace W. hearing on the assault and battery charge, which preceded the accosting and annoying minor misdemeanor, rendering any request by the juvenile unnecessary. On appeal, the Commonwealth relies primarily on its argument that no Wallace W. hearing is required when it brings multiple charges, an argument we rejected above. Nonetheless, to avoid unnecessary confusion about waiver, we answer the first reported question as follows: the issue of a first offense of a minor misdemeanor is one of subject matter jurisdiction; thus, it cannot be waived and can be raised by either party or the court at any time.

As we explained in Wallace W., the definition of "[d]elinquent...