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17-P-793                                               Appeals Court

            COMMONWEALTH    vs.   DEMETRIUS D.,1 a juvenile.


                              No. 17-P-793.

          Norfolk.       March 8, 2018. - September 14, 2018.

           Present:     Wolohojian, Milkey, & Englander, JJ.


Rape.  Kidnapping. Indecent Assault and Battery. Intimidation
     of Witness. Practice, Criminal, Motion to suppress,
     Required finding, Identification of defendant in courtroom.
     Department of Children & Families. Privacy. Search and
     Seizure, Expectation of privacy. Regulation. Evidence,
     Fingerprints.




     Complaint received and sworn to in the Norfolk County
Division of the Juvenile Court Department on November 11, 2013.

     Indictments found and returned in the Norfolk County
Division of the Juvenile Court Department on January 6, 2014.

     A pretrial motion to suppress evidence was heard by Mary M.
McCallum, J., and the cases were tried before her.


     Elizabeth Caddick for the juvenile.



     1   A pseudonym.
                                                                     2


     Marguerite T. Grant, Assistant District Attorney, for the
Commonwealth.


     WOLOHOJIAN, J.   The juvenile was convicted, as a youthful

offender (G. L. c. 119, § 54), on two indictments for aggravated

rape of a child with force (G. L. c. 265, § 22B [a]), and one

indictment each for kidnapping (G. L. c. 265, § 26), indecent

assault and battery on a child under fourteen (G. L. c. 265,

§ 13B), intimidation of a witness (G. L. c. 268, § 13B),

and assault and battery by means of a dangerous weapon, to wit,

a shod foot (G. L. c. 265, § 15A [b]),2 all arising from his

attack on an eleven year old boy.     At the time of the incident,

the juvenile was in the custody of the Department of Children

and Families (department) and living in foster care.     He now

appeals, raising several arguments.

     First, the juvenile argues that evidence seized from his

bedroom at a foster home where he had been placed should have

been suppressed because the department should not have disclosed

his address to the police.   Second, he argues that defense

counsel should have been allowed to comment to the jury about

the absence of any identification, even though the exclusion of

in-court identifications was the result of his successful

opposition to the Commonwealth's motion in limine to permit


     2 He was also found delinquent on one charge of assault and
battery (G. L. c. 265, § 13A [a]).
                                                                     3


certain witnesses to make such identifications, and there had

been no out-of-court identifications.   He also challenges the

sufficiency of the evidence on the charge of kidnapping and the

admission of expert fingerprint testimony.   We affirm.

    Viewing the evidence in the light most favorable to the

Commonwealth, the jury could have found the following.    On

October 31, 2013, the juvenile was fifteen years old,

approximately five feet, three inches tall, on the thin side,

and had "brownish" hair and a light brown complexion.     He lived

with a foster family in a town south of Boston.   So that the

juvenile could participate in Halloween, employees of the

department had bought him a costume consisting of a black vest

with the word "SWAT" written on it in white lettering, a black

SWAT or military-type hat, and a black "North Face" brand

jacket.   Wearing this costume, a pair of black "Air Jordan"

sneakers, and carrying a black "Michael Jordan" backpack, the

juvenile left his foster home to go trick-or-treating.

    At the same time, eleven year old Jason3 was trick-or-

treating nearby with four female schoolmates.   When they were

near the local high school, they were approached by the

juvenile, who asked if he could join them.   None of them knew




    3   A pseudonym.
                                                                    4


the juvenile,4 who said his name was "Devon" or "Deron."    Jason

felt sorry that the juvenile was all alone and agreed to let him

join the group.   Shortly thereafter, however, the girls, who

were scared and uncomfortable being in the company of the

juvenile, decided to break off on their own.   They urged Jason

to come with them, but he declined because he did not want to

leave the juvenile by himself.   Jason and the juvenile,

therefore, continued trick-or-treating on their own for

approximately the next two hours.5   At some point during the

evening, the juvenile told Jason that he was going to move to a

different town.

     Each boy carried a drink:   the juvenile, a can of "Monster"

energy drink; Jason, a bottle of "Brisk" iced tea.   At one

point, while on a side street, the juvenile left his drink in

the middle of the road.   The can, which was later recovered,

bore a latent fingerprint that matched the juvenile's right

thumb.   After some time, the two boys turned down another side

street, a short cul-de-sac.   The street was not well lit and,


     4 Later that evening, the children provided police with
descriptions of the juvenile's physical appearance, clothing,
and costume that, along with other evidence, were sufficient to
establish beyond a reasonable doubt that the boy who approached
them near the high school was the juvenile.

     5 En route, the juvenile and Jason stopped at the house of
one of the four girls. The girl's mother provided police with a
description of the stranger accompanying Jason that matched the
juvenile.
                                                                     5


while it was lined with houses, there was no one about.       As they

neared the dead end, the juvenile abruptly grabbed Jason's bag

of candy and started to walk away.     Jason, unsure of the

juvenile's intentions, began to cry.    At that, the juvenile

turned around, came back, and returned the bag.    However, he

then placed Jason in a choke hold and punched his head and face,

causing Jason's nose to bleed.   The juvenile then pushed Jason

to the ground, kicked him in the head and body, and then

instructed Jason to strip.   Jason, having unsuccessfully tried

to escape and in fear for his life, did as he was directed.      The

juvenile then pulled down the front of his own pants and forced

Jason to perform fellatio.   He then told Jason to bend over, and

proceeded to anally penetrate the younger boy with his penis.

Eventually, the juvenile stopped; he then resumed kicking Jason

while threatening to kill Jason's family if he told anyone what

had occurred.   The juvenile instructed Jason to stay on the

ground and not to move or else he would return to beat him

again.   He urinated on Jason and then doused him with his

(Jason's) iced tea.   Finally, the juvenile walked away, leaving

Jason lying in the street.

    Jason remained in the street, afraid to move lest the

juvenile make good on his threat to return.    From that position,

Jason called 911 twice (the first call was disconnected).

Although the recordings of those calls show Jason to be filled
                                                                    6


with fear, he nonetheless managed to provide a good description

of his assailant (i.e., dressed all in black and wearing a SWAT

vest and a black hat as a costume) as well as many of the

details of the attack.   When police arrived, Jason's costume,

clothes, sneakers, candy, and iced tea bottle were strewn about,

and the area smelled of urine.6   There was also a blood stain on

the pavement.   Jason himself smelled of urine and had visible

injuries to his nose, upper lip, cheeks, head, wrist, and elbow.

     After interviewing Jason and the four girls, the police

released a dispatch looking for a "[l]ight skin, Cape Verdean,

black or Hispanic male, thin, light-colored hair, between 5' 3"

and 5' 5" in height, wearing a SWAT costume, a SWAT vest with

the letters 'SWAT' in white lettering across the front, black or

dark-colored pants, dark-colored sneakers, and also a black

Michael Jordan backpack."   No one matching the description was

located that night.   The following afternoon, however, two

clerks at a nearby convenience store stated that they had

earlier that day observed a boy at a house across the street,

carrying bags and other items out of the house and placing them

in a car, as if in the process of moving.   One of the items was




     6 Although samples of blood, seminal fluid, and urine were
recovered and tested, none were conclusively tied to the
juvenile.
                                                                      7


a black vest with the word "SWAT" written on it.     The house

belonged to the juvenile's foster family.

    From the foster father, the police learned that the boy

they were looking for was the juvenile and that he was in the

custody of the department.     They also learned that, earlier that

afternoon, the department had moved the juvenile to a new foster

home in another town.   The foster father knew the name of the

town, but not the street address.    The police, therefore,

contacted the department, which disclosed the address to them.

    At the second foster home, the juvenile's new foster father

confirmed that the juvenile had moved in and that he had placed

his belongings in a bedroom.    After inviting the police into the

home, the foster father led them to the bedroom, where they

observed several bags, a black Michael Jordan backpack, and a

black vest with the word "SWAT" in white lettering across the

front.   The police seized these items, and subsequently obtained

a warrant to search them.    In the bags, they found a pair of

black "Air Jordan" sneakers, a black "North Face" brand jacket,

and a black SWAT or military-type hat.    The backpack was full of

Halloween candy.

    Discussion.    1.   Motion to suppress.   The juvenile argues

that the items seized from his bedroom at the second foster home

should have been suppressed because the seizure resulted from

the department's disclosure of his address, which he contends
                                                                    8


the department was required to hold confidential.7   Specifically,

he maintains that, under 110 Code Mass. Regs. §§ 12.00 (2008)

and related statutes, his address, to the extent that it was in

the possession of the department, was confidential and could not

be disclosed to the police as it was here.   Although we set out

below the details of the statutory and regulatory framework upon

which he relies, we conclude it did not require application of

the exclusionary rule.

     "Access to . . . Department[] records is governed by

several sources of law."   110 Code Mass. Regs. § 12.02.8   While

the juvenile generally refers to several of those sources, his

argument centers on G. L. c. 119, § 51F, which requires that the

department maintain a "central registry of information"

sufficient to identify children who have been reported to it

because they are believed to be victims of abuse or neglect,9 and

further provides:




     7 On appeal, the juvenile does not press several other
arguments he raised below in support of his motion to suppress.

     8 The statutes cited in 110 Code Mass. Regs. § 12.02 include
G. L. c. 4, § 7, Twenty-sixth; G. L. c. 30, § 42; G. L. c. 66;
G. L. c. 66A; G. L. c. 112, § 135; G. L. c. 119, §§ 51E and 51F;
and G. L. c. 210, §§ 5C and 5D.

     9 The department's primary duty is to protect children from
abuse or neglect by their "caretaker[s]." 110 Code Mass. Regs.
§ 4.21 (commentary) (2009). See 110 Code Mass. Regs. § 2.00
(2008) (defining "caretaker," "abuse," and "neglect"). The
criminal justice system has primary responsibility for
                                                                   9


     "Data and information relating to individual cases in the
     central registry shall be confidential and shall be made
     available only with the approval of the commissioner or
     upon court order; provided, however, that the department,
     upon request, may release this data and information to a
     child welfare agency of another state for the purpose of
     assisting that agency in determining whether to approve a
     prospective foster or adoptive parent. The commissioner
     shall establish rules and regulations governing the
     availability of such data and information."

G. L. c. 119, § 51F.10

     To fulfil this mandate, the department promulgated 110 Code

Mass. Regs. §§ 12.00 et seq., which, according to its stated

purpose, "enumerates the rules for access to information kept in

the [central registry . . . and] sets forth rules for access to

other Department files or information."   110 Code Mass. Regs.

§ 12.01.   The regulation provides that the central registry

"shall contain, but need not be limited to, all identifying data

that is known ('identifying data' shall mean name, date of




investigating acts of "child abuse" committed by noncaretakers.
110 Code Mass. Regs. § 4.21 (commentary).

     10Title 110 Code Mass. Regs. § 4.35 identifies specific
parties who may have access to the central registry and for what
purpose. It further provides:

     "No other individual, group, agency or department,
     including law enforcement . . . may have access to the
     Central Registry without the written approval of the
     Commissioner, an order of a court of competent
     jurisdiction, or as authorized by . . . G. L. c. 119,
     § 51F" (emphasis added).

110 Code Mass. Regs. § 4.35(4) (2009).
                                                                 10


birth, sex, ethnicity, and address) for each child who is the

subject of a report pursuant to . . . G. L. c. 119, § 51A"

(emphasis added).   110 Code Mass. Regs. § 12.03.   From this, the

juvenile argues that his address amounted to confidential

"identifying data" that could only be released if, and as,

permitted by the rules set forth in the regulation.

     The regulation provides for the release of information by

the department under certain specific circumstances.     See, e.g.,

110 Code Mass. Regs. § 12.06 (to "providers"), § 12.07 (in

response to compulsory legal process in a civil proceeding),

§ 12.09 (in litigation in which either the department or one of

its contracting providers is a party), § 12.10 (to the person

the records are about or the child's parents), § 12.14 (to the

bureau of special investigations), and § 12.15 (to the

department of youth services).   None of those circumstances

involves a criminal investigation or proceeding, particularly,

as the juvenile notes, one where a child in the department's

custody is a possible or known suspect.   The juvenile relies on

this omission to argue that the department is not free to

release identifying data under those circumstances absent either

a court order, as referenced in G. L. c. 119, § 51F,11 or consent


     11While the juvenile dismisses the option in this case,
G. L. c. 119, § 51F, also provides for the release of data and
information in the central registry "with the approval of the
commissioner."
                                                                  11


by a guardian ad litem appointed to represent the interests of

the child, as is suggested in a separate regulation governing

requests from a police officer or representative of a district

attorney's office to interview a child in the department's

custody who is a "possible or known defendant in a criminal

action."   110 Code Mass. Regs. § 4.34(1)(a) (2009).

     The Commonwealth for its part argues that the department's

release of the juvenile's address was not only authorized, but

required under G. L. c. 119, § 51B (k), and 110 Code Mass. Regs.

§§ 4.50-4.51 (2009).   That statute and related regulations

address when and how the department is required to refer a

matter to a district attorney and local law enforcement.12    A

referral is "[m]andatory" when the department receives a report

of abuse or neglect of a child, see 110 Code Mass. Regs. § 4.51

(2009), and, after investigation or based on "early evidence,"

see G. L. c. 119, § 51B (k), has reasonable cause to believe

that certain enumerated conditions have resulted from the abuse




     12In 110 Code Mass. Regs. § 12.07, there is a cross
reference to § 4.53 "for criminal proceedings." Title 110 Code
Mass. Regs. § 4.53 (2009) details the procedures the department
must follow after it has made a "mandatory" or "discretionary"
referral to a district attorney or local law enforcement, as
required under G. L. c. 119, § 51B (k), and 110 Code Mass. Regs.
§§ 4.50-4.52, as well as when documents from department files
are subpoenaed in a criminal matter to which the department is
not a party.
                                                                  12


or neglect.   Those conditions include where "a child has been

sexually assaulted" or there is "any other disclosure of

physical abuse involving physical evidence which may be

destroyed."   G. L. c. 119, § 51B (k) (2); § 51B (k) (4); 110

Code Mass. Regs. § 4.51(2)(b) and (2)(e)(3) (2009).   According

to the Commonwealth, the police made a report of abuse of a

child, namely, Jason, when they called the department on

November 1, 2013, seeking the juvenile's address.   Since the

reported abuse resulted in sexual assault or physical abuse

involving evidence that was in danger of being destroyed, the

department was required to release the juvenile's address.13

     We suppress evidence resulting from the government's

violation of a statute only where the statute is both "closely

associated with constitutional rights, rights grounded in

fundamental fairness," Commonwealth v. LeBlanc, 407 Mass. 70, 75

(1990), quoting Commonwealth v. Lyons, 397 Mass. 644, 647

(1986), and where "an exclusionary rule [is] inherent in the

purpose of [the] statute."14   Commonwealth v. LeBlanc, supra.




     13The record does not disclose what the police said during
the call to the department on November 1, 2013.

     14The juvenile also argues that the disclosure violated
constitutional and statutory rights to privacy. Having failed
to raise those arguments in connection with the motion to
suppress below, however, they are waived. See Commonwealth v.
Quint Q., 84 Mass. App. Ct. 507, 514 (2013).
                                                                   13


See generally Commonwealth v. Upton, 394 Mass. 363, 367 n.4

(1985), and cases collected therein.    We do not see the

statutory scheme at issue here to be of this sort.     To begin

with, we note that the juvenile has not identified, nor do we

know of, any constitutionally based interest in keeping his

address confidential.    Thus, whatever confidentiality the

statute may provide to children within the department's purview,

that protection cannot be said to be "closely associated" with a

constitutional right.    The juvenile has not cited, nor have we

found, any authority for the proposition that either the

Fourteenth Amendment to the United States Constitution or arts.

12 and 14 of the Massachusetts Declaration of Rights restrict

police authority to locate a criminal suspect by asking

knowledgeable people for his address or whereabouts.

     Nor are we persuaded that an exclusionary rule is inherent

in the purpose of the statute.    To the contrary, the statute

provides its own remedy, see G. L. c. 119, § 51F,15 and therefore


     15   General Laws c. 119, § 51F, provides, in pertinent part:

     "Any person employed in the central registry who permits
     the data and information stored in the registry to be
     released without authorization to persons other than those
     specified in the rules and regulations shall be punished by
     a fine of not more than $1,000 or by imprisonment for not
     more than 2 1/2 years, or both."

General Laws c. 119, § 51E, which provides for the
confidentiality of written reports prepared by the department
under §§ 51A-51D, also provides a penalty for a violation.
                                                                  14


there is no need to graft an exclusionary rule to it "to make

the statute an effective piece of legislation."    Commonwealth v.

Jones, 362 Mass. 497, 502 (1972).    Compare id. at 503

(suppressing evidence of identification made at police station

after defendant was intentionally denied his statutory right to

use telephone); Commonwealth v. Alicea, 428 Mass. 711, 716

(1999) ("To make the statute an effective piece of legislation

in the absence of [a prescribed penalty for a violation], we

have grafted an exclusionary rule to it" [quotation omitted]).

    We note further that our view of the statute is consistent

with the purpose of the exclusionary rule, which is "to deter

police misconduct and preserve judicial integrity by

dissociating courts from unlawful conduct."    Commonwealth v.

Nelson, 460 Mass. 564, 571 (2011).    There was no police

misconduct here.   Instead, good police work and investigation

led the police to the juvenile, confirmed many details of the

attack and his role as its perpetrator, established his

possession of the identifying costume, and led them to the town

to which he had moved and taken that important evidence.     In

these circumstances, the police cannot be said to have done

anything wrong when they contacted the department to learn the
                                                                    15


address of the juvenile's new foster home -- information that,

as we noted above, does not enjoy constitutional protection.

    2.    Identification issues.   Two months before trial, the

Commonwealth moved in limine, pursuant to Commonwealth v.

Crayton, 470 Mass. 228 (2014), for leave to have Jason and the

four girls attempt to identify the juvenile in court.     Crayton

was not decided until approximately one year after the crimes at

issue, and none of these witnesses had been asked to identify

the juvenile out of court.   The juvenile opposed the motion, and

the trial judge denied it, concluding, based on Crayton, that

the in-court identifications would be "inherently suggestive"

and that there was not "good reason" for allowing them.      The

juvenile argues that the judge subsequently erred when, at the

request of the Commonwealth, she precluded the juvenile from

mentioning the absence of in-court identifications to the jury.

We disagree.

    It is established that "[c]ounsel may not, in closing,

exploit the absence of evidence that had been excluded at his

request. . . .   Such exploitation of absent, excluded evidence

is fundamentally unfair and reprehensible" (quotations and

citation omitted).   Commonwealth v. Harris, 443 Mass. 714, 732

(2005).   See Mass. G. Evid. § 1113(b)(3)(A) (2018).   The

juvenile argues, however, that this general proposition does not

apply because he did not affirmatively move to exclude the
                                                                  16


evidence, but only opposed the Commonwealth's motion to

introduce it.    This, we think, is a distinction without a

difference where, as here, the Supreme Judicial Court has

deliberately placed on the Commonwealth the burden to move to

admit in-court identifications where there has been no out-of-

court identification, rather than saddling defendants with the

burden of moving to exclude them, while leaving the burden of

showing undue suggestiveness on the defendant.16   Commonwealth v.

Crayton, 470 Mass. at 243.    If a defendant meets that burden

then he "prevail[s] in suppressing the in-court identification




     16   In Crayton, the court stated:

     "Although we generally place the burden on the defendant to
     move to suppress an identification, that makes little sense
     where there is no out-of-court identification of the
     defendant by a witness and only the prosecutor knows
     whether he or she intends to elicit an in-court
     identification from the witness. If the burden were on the
     defendant to move to suppress an identification in these
     circumstances, a defendant would need to file motions to
     suppress the in-court identification of witnesses whom the
     prosecutor might not intend to ask to make such an
     identification. To avoid the filing of needless motions,
     we place the burden on the prosecutor to move in limine to
     admit the in-court identification of the defendant by a
     witness where there has been no out-of-court
     identification."

470 Mass. at 243. The court continued, "Once the motion is
filed, the defendant would continue to bear the burden of
showing that the in-court identification would be unnecessarily
suggestive and that there is not 'good reason' for it." Id.
                                                                     17


as unnecessarily suggestive," id. -- the same outcome as had he

been the initial movant.

     The juvenile also argues that the judge erred in precluding

him from making a "Bowden argument" with respect to the lack of

out-of-court identification.     Commonwealth v. Bowden, 379 Mass.

472 (1980).    Even were we to accept the juvenile's contention

that he raised and preserved this issue during the charge

conference (despite the fact that the juvenile did not mention

Bowden to the judge), we discern no error.     To begin, the

evidentiary predicate for such an argument did not exist;

despite the fact that the juvenile was never prevented from

questioning witnesses, including the police, about the lack of

out-of-court identification procedures, he did not do so.      And

this sensible strategic decision was no doubt the result of

counsel's successful opposition to the Commonwealth's motion in

limine.17

     3.     Kidnapping.   The juvenile next argues that his

conviction of kidnapping cannot stand because the evidence, even

when viewed in the light most favorable to the Commonwealth, was

insufficient to establish beyond a reasonable doubt the element


     17The juvenile requested a Bowden instruction, but only for
purposes of arguing to the jury about "testing of materials of
certain biologicals" and the Commonwealth's failure to test the
iced tea bottle for fingerprints. The trial judge declined to
give the instruction, but permitted counsel to argue those
alleged investigative deficiencies to the jury.
                                                                    18


of "secret confinement."   In particular, he notes that the

incident took place on a public street, in the vicinity of

several residential houses, and that Jason was left with his

cellular telephone.   "Within the context of the crime of

kidnapping, the concept of 'confinement' has been broadly

interpreted to mean any restraint of a person's movement,"

Commonwealth v. Lent, 46 Mass. App. Ct. 705, 710 (1999), and can

be either secret or forcible.     See G. L. c. 265, § 26.     The

evidence clearly permitted such a finding here.     Compare

Commonwealth v. Brown, 66 Mass. App. Ct. 237, 242 (2006)

(confinement established where defendant threw victim to the

ground under a bridge and forcefully removed her clothing,

threatened to kill her if she told anyone what he had done,

constrained her movements by poking her with a sharp stick,

"told her she could not leave, and she remained because he had

scared her and she was too frightened to attempt to leave").

    4.   Fingerprint testimony.    Finally, the juvenile argues

that the examiner from the State police crime lab who testified

to matching the latent fingerprint found on the can of Monster

energy drink to the known print of the juvenile's right thumb,

did so with overstated certainty and improperly bolstered his

testimony by noting that, in accordance with the lab's protocol,

his findings had been verified by two other examiners who were

not present in court and therefore could not be subject to
                                                                  19


cross-examination.   The juvenile did not object or move to

strike any of this testimony, so we review for a substantial

risk of a miscarriage of justice.   See Commonwealth v. McCoy,

456 Mass. 838, 845-846 (2010).   See also Commonwealth v. Grady,

474 Mass. 715, 721-722 (2016).   We discern none here because

trial counsel elicited on cross-examination that the examiner's

view was only his opinion, based on personal observations, that

the two fingerprints matched.    As such, it is unlikely that the

jury took the fingerprint match to be established as a matter of

certainty.   As for the testimony regarding the verifying

opinions of the other two examiners, that testimony was invited

by trial counsel in his cross-examination of the examiner.      And,

while the fingerprint evidence was meaningful, it was only one

small piece of the wealth of evidence tying the juvenile to the

crime.

                                    Judgments affirmed.

                                    Adjudication of delinquency
                                      by reason of assault and
                                      battery affirmed.
