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16-P-1009                                           Appeals Court

            COMMONWEALTH   vs.   GEORDI G., a juvenile.


                           No. 16-P-1009.

      Berkshire.       April 11, 2018. - September 20, 2018.

            Present:   Sullivan, Lemire, & Ditkoff, JJ.


Delinquent Child. Assault and Battery. Probable Cause.
     Intentional Conduct. Juvenile Court, Delinquent child.
     Practice, Criminal, Juvenile delinquency proceeding,
     Complaint, Arraignment, Dismissal. Individuals with
     Disabilities Education Act.



     Complaint received and sworn to in the Berkshire County
Division of the Juvenile Court Department on January 19, 2016.

    A motion to dismiss was heard by Judith A. Locke, J.


     Kyle Gray Christensen, Assistant District Attorney, for the
Commonwealth.
     Robert Hennessy for the juvenile.


    DITKOFF, J.    A school official obtained a delinquency

complaint charging the juvenile with, inter alia, two counts of

assault and battery based on alleged incidents of pushing a

teacher and hip-bumping the principal at his middle school.    See
                                                                       2


G. L. c. 265, § 13A (a).     Over the Commonwealth's objection, a

judge of the Juvenile Court dismissed these charges for lack of

probable cause.     Concluding that the observations of the

teacher, the principal, and a school counsellor established

probable cause, we vacate the order of dismissal.     We also take

this opportunity to remind school officials of their obligation,

when seeking a delinquency complaint against a student with an

individualized education program (IEP), to make the prosecutor

aware of the juvenile's special needs in a timely manner.

     Background.1    On December 2, 2015, the twelve year old

juvenile was in the gymnasium of his middle school at the end of

a basketball game.    He refused to follow directions, started

swearing at a teacher, and left the gymnasium.     The teacher

followed and asked him to come back into the gymnasium, but he

refused and ran down the hallway into the atrium.     When the

juvenile was asked to go to the office, he stated that he was

"not going to the fucking office" and did not want "to talk to

any of those assholes."     The teacher tried to calm him down, but

he would not calm down or stop swearing loudly.     The principal

then came into the atrium and also tried to calm him down.       The

juvenile was breathing heavily, had clenched fists and puckered

lips, and was visibly upset.     He also punched a cinder block

     1 These allegations are those stated in the application for
the criminal complaint. See Commonwealth v. Valentin V., 83
Mass. App. Ct. 202, 203 & n.1 (2013). They remain unproven.
                                                                     3


wall that was behind him.     The teacher was standing in front of

the doors to the hallway, and the juvenile pushed the teacher

and went through the doors.

    After several minutes, other teachers left their rooms and

came into the hallway to try to calm down the juvenile.     The

principal directed the first teacher to return to her classroom.

Nonetheless, the juvenile became more agitated, punched lockers,

and stated that he was going to injure people.    The principal

issued a "soft lockdown," which required the students to stay in

their classrooms and to delay transitioning to their next

classes.   After about ten minutes, the soft lockdown was removed

when the group of teachers and the principal were able to

convince the juvenile to leave the hallway and to enter the

office of the school's adjustment counsellor.

    In the counsellor's office, the juvenile was still upset

and swearing.   He stepped towards the principal in a threatening

manner and, standing face-to-face about one foot away,

repeatedly asked, "You're fucking scared of a [twelve] year

old?"   The juvenile then walked to the door, bumping the

principal with the side of his body, thus moving him.

    On December 3, 2015, the assistant principal of the middle

school filed an application under G. L. c. 218, § 35A, for a

delinquency complaint, alleging that the juvenile committed two

counts of assault and battery (one against a teacher and the
                                                                       4


other against the principal) and one count of disturbing a

school assembly, G. L. c. 272, § 40.    The assistant principal

made no mention of the juvenile's IEP in the application, and

there is no indication that the school otherwise made the

prosecutor aware of the juvenile's special needs.

     On January 19, 2016, the clerk-magistrate issued a

delinquency complaint for all three charges.    The juvenile then

moved to dismiss the complaint before arraignment.      On March 24,

2016,2 a hearing was held on the motion to dismiss.     The judge

dismissed the two assault and battery charges for lack of

probable cause and arraigned the juvenile on the charge of

disturbing a school assembly.3   The Commonwealth appeals pursuant

to Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501

(1996).

     Discussion.   1.   Probable cause determination.    "[W]e

review the . . . judge's probable cause determination de novo."

Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013), quoting

Commonwealth v. Long, 454 Mass. 542, 555 (2009).     "[A] motion to


     2 Arraignment was originally scheduled for January 28, 2016,
but was rescheduled without objection from the Commonwealth.

     3 With the Commonwealth's apparent consent, the juvenile
ultimately received a disposition of pretrial probation on the
charge of disturbing a school assembly. After he successfully
completed the term of probation, the Commonwealth dismissed the
charge. The Legislature has since amended G. L. c. 272, § 40,
so that it cannot be used to prosecute a juvenile student for
conduct at school. See St. 2018, c. 69, § 159.
                                                                    5


dismiss a complaint [for lack of probable cause] 'is decided

from the four corners of the complaint application, without

evidentiary hearing.'"     Id. at 565, quoting Commonwealth v.

Huggins, 84 Mass. App. Ct. 107, 111 (2013).    "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.'"    Id., quoting Commonwealth v. Roman,

414 Mass. 642, 643 (1993).    To satisfy the probable cause

standard, "more than mere suspicion" is required, but the

evidence need not be sufficient to warrant a conviction.

Commonwealth v. Cartright, 478 Mass. 273, 283 (2017), quoting

Commonwealth v. Jewett, 471 Mass. 624, 629 (2015).     Our review

of the judge's order of dismissal is confined to the evidence

submitted to the clerk-magistrate, see Commonwealth v. Ilya I.,

470 Mass. 625, 626 (2015), which is "viewed in the light most

favorable to the Commonwealth."    Commonwealth v. Levesque, 436

Mass. 443, 444 (2002).

    "The complaint application must include information to

support probable cause as to each essential element of the

offense."   Humberto H., 466 Mass. at 565-566.   The crime of an

intentional assault and battery requires proof that the juvenile

"touched the victim without having any right or excuse to do so

and that the [juvenile's] touching of the victim was
                                                                     6


intentional."    Commonwealth v. Mitchell, 67 Mass. App. Ct. 556,

564 (2006).     Furthermore, there must be proof either that the

touching was "with such violence that bodily harm is likely to

result" (harmful battery), Commonwealth v. Eberhart, 461 Mass.

809, 818 (2012), quoting Commonwealth v. Burke, 390 Mass. 480,

482 (1983), or "occurred without the victim's consent"

(offensive battery).     Eberhart, supra, quoting Commonwealth v.

Hartnett, 72 Mass. App. Ct. 467, 476 (2008).    Accord Instruction

6.140 of the Criminal Model Jury Instructions for Use in the

District Court (2016).     Both the teacher and the principal wrote

that the juvenile pushed the teacher after arguing with her.

The counsellor wrote that she observed the juvenile address the

principal in a threatening manner and then bump him with the

juvenile's side.     Viewed in the light most favorable to the

Commonwealth, these accounts provide a sufficient showing of the

elements of intentional, offensive assault and battery to

warrant a prudent person in concluding that the juvenile

committed assault and battery when he pushed the teacher and

hip-bumped the principal.

    We are unpersuaded by the argument that the juvenile

intended only to leave the rooms and to remove himself and thus

did not have the requisite intent to touch the teacher and the

principal.    Prior to pushing the teacher on his way out of the

doors to the hallway, the juvenile was disregarding directions,
                                                                    7


running away from school staff, and yelling and swearing,

continuing to do so even after the teacher and other staff

attempted to calm him.   Similarly, before bumping into the

principal, the juvenile stated that he was going to injure

others and then stepped towards the principal in a threatening

manner and repeatedly stated, "You're fucking scared of a

[twelve] year old?"   Although the juvenile may very well have

had the primary motivation of removing himself from both

situations, based on the circumstances surrounding the

incidents, it is a reasonable inference that the juvenile also

intended to make contact with the individuals.4

     2.   Prearraignment dismissal based on best interests of the

juvenile and in the interests of justice.   Relying on the

holding in Humberto H., the juvenile contends that, even if the

complaint application supports a finding of probable cause, the

judge properly exercised her discretion in dismissing the two

charges prior to arraignment to protect the best interests of

the juvenile and in the interests of justice.     We disagree.

     The judge based her dismissal on her finding that there was

no probable cause to support the charges of assault and battery.

Nothing in the judge's decision indicates that she made a

     4 Although the judge references the lack of bodily injury to
the teacher and the principal in finding no probable cause,
bodily injury is not a necessary element for an intentional
assault and battery. See Commonwealth v. Porro, 458 Mass. 526,
529 (2010).
                                                                     8


discretionary decision that dismissal was in the best interests

of the juvenile and in the interests of justice.   To the

contrary, the judge allowed the charge of disturbing a school

assembly to proceed, suggesting that she viewed prosecution to

be in the interests of justice.

    Case law issued after the events in question will govern

this question if the Commonwealth chooses to proceed.     In

Commonwealth v. Newton N., 478 Mass. 747 (2018), the Supreme

Judicial Court decided that, where a complaint obtained by a

police officer is supported by probable cause, a judge cannot

dismiss the complaint prior to arraignment even when the judge

determines that dismissal before arraignment would serve the

best interests of the child and the interests of justice.      Id.

at 755-757.   This is because, "where a complaint is supported by

probable cause, the decision to proceed with the prosecution

rests in the broad and exclusive discretion of the prosecutor."

Id. at 755.   The courts expect prosecutors to consider carefully

"whether to proceed with the arraignment of a juvenile, even

where there is probable cause, and consider whether prosecution

will serve the best interests of the child and the interests of

justice."   Id. at 757.

    In Commonwealth v. Orbin O., 478 Mass. 759 (2018), the

Supreme Judicial Court held that, where a delinquency complaint

is brought by a civilian, the judge may not dismiss the
                                                                     9


complaint in the best interests of the juvenile and in the

interests of justice if the prosecutor affirmatively adopts the

complaint by moving for arraignment.    See id. at 760.   Here, as

in Orbin O., the application for complaint was sought by an

assistant principal, a civilian.   Accordingly, going forward, if

the Commonwealth moves for arraignment, the judge will lack the

authority to dismiss the complaint based on the best interests

of the juvenile and in the interests of justice.

    3.   Prearraignment dismissal based on failure to provide

mitigating evidence.   The juvenile contends that the dismissal

may be upheld on the ground that the assistant principal was

obligated pursuant to Commonwealth v. O'Dell, 392 Mass. 445

(1984), to inform the clerk-magistrate of the juvenile's IEP,

and that this failure justified dismissal of the two charges

before arraignment.    Under O'Dell, a defendant may move to

dismiss a grand jury indictment on the ground that "the

integrity of the grand jury proceeding was impaired by an unfair

and misleading presentation to the grand jury."    Id. at 446-447.

"To justify dismissal of an indictment, a defendant must show

that 'inaccurate or deceptive evidence was given to the grand

jury knowingly and in order to obtain an indictment and that the

evidence probably influenced the grand jury's determination.'"

Levesque, 436 Mass. at 456, quoting Commonwealth v. Drumgold,

423 Mass. 230, 238 (1996).   Although there is no general duty to
                                                                   10


provide all exculpatory evidence to a grand jury, see

Commonwealth v. Carr, 464 Mass. 855, 868 (2013), a motion to

dismiss may lie where "evidence was withheld in a manner that

distorts the meaning of the evidence admitted, or if the

exculpatory evidence was so powerful it would have severely

undermined the credibility of an important witness or likely

have led the grand jury not to indict."   Commonwealth v. Rakes,

478 Mass. 22, 30 (2017).   The rationale in O'Dell has never been

applied to private complaints or in the prearraignment context.

    We pretermit the question whether O'Dell applies to private

complaints or may be raised prearraignment, as the juvenile's

argument fails for the more fundamental reason:   a motion to

dismiss under O'Dell lies where the withheld evidence, if known

by the finder of probable cause, would likely have resulted in a

finding of no probable cause.   See Rakes, 478 Mass. at 32

(rejecting O'Dell claim where "[t]he appropriately admitted

evidence was more than sufficient to demonstrate probable

cause"); Commonwealth v. Hunt, 84 Mass. App. Ct. 643, 659

(2013), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163

(1982) (reversing order dismissing on O'Dell grounds where

proper evidence "was sufficient 'to establish the identity of

the accused . . . and probable cause to arrest [them]'").

Accord Commonwealth v. Wermers, 61 Mass. App. Ct. 182, 188

(2004).   The juvenile's IEP, although potentially relevant both
                                                                   11


at trial and at disposition, could not defeat probable cause.

See Newton N., 478 Mass. at 752 ("questions of criminal

responsibility and mental impairment are not relevant

considerations in determining probable cause").

    Nonetheless, the school had a statutory duty, pursuant to

the Federal Individuals with Disabilities Education Act, 20

U.S.C. §§ 1400 et seq. (2012) (IDEA), to disclose information

relating to the IEP to the prosecutor in order for the

Commonwealth to make a reasoned, informed decision whether to

move forward with the prosecution.     "The IDEA is a complex

Federal grant program intended to 'ensure that all children with

disabilities have available to them a free appropriate public

education that emphasizes special education and related services

designed to meet their unique needs.'"     Commonwealth v.

Nathaniel N., 54 Mass. App. Ct. 200, 202 (2002), quoting 20

U.S.C. § 1400(d)(1)(A) (Supp. 1999).     The IDEA sets forth

"substantive and procedural rights designed to ensure

achievement of the statutory goals," Nathaniel N., supra,

providing Federal funding for States that meet certain

conditions.   See Kelly K. v. Framingham, 36 Mass. App. Ct. 483,

484 (1994).
                                                                  12


    Under 20 U.S.C. § 1415(k)(6)(B)(2012),5 "[a]n agency

reporting a crime committed by a child with a disability shall

ensure that copies of the special education and disciplinary

records of the child are transmitted for consideration by the

appropriate authorities to whom the agency reports the crime."

Few courts have thus far addressed the requirements of

§ 1415(k)(6)(B), such as when and to what "appropriate

authorities" the records must be provided.    In Nathaniel N., 54

Mass. App. Ct. at 206, we concluded that a delay in providing

such records did not, without more, create "one of those rare

cases that warrants overriding a District Attorney's authority

to decide whether to prosecute a case."

    Nonetheless, it is beyond cavil that the IDEA "recognizes

that such records would be relevant for placement and

dispositional purposes."   Id. at 205.    The purpose of

§ 1415(k)(6)(B) is to provide such records to help determine

whether a crime has been committed by a student that warrants

prosecution and what disposition would be appropriate if such a

crime were proven.   Decisions regarding whether to prosecute a

particular case are within the discretion of the prosecuting

authorities of the Commonwealth.   See Victory Distribs., Inc. v.

Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 143 (2001).

Accordingly, it is necessary that the prosecutor, as the

    5   Previously 20 U.S.C. § 1415(k)(9)(B) (2000).
                                                                     13


appropriate authority, have access to this information in time

to exercise this discretion in an informed manner.

    Prosecutors have the authority to nol pros a complaint

issued under G. L. c. 218, § 35A, before arraignment.    See

Carroll, petitioner, 453 Mass. 1006, 1006 (2009).    This

discretionary function is an important prosecutorial duty,

particularly in juvenile cases, and one that school authorities

need to protect by providing the prosecutor with access to

information that weighs on the prosecutor's determination.

"[S]ound judgment must be applied in deciding whether a child's

misbehavior that is legally within the ambit of the criminal law

is so serious that it should be treated as a delinquency

complaint in Juvenile Court, rather than as a disciplinary

matter that is best resolved within a school, family, or

clinical mental health setting."   Orbin O., 478 Mass. at 766.

Upon reviewing the juvenile's records, which may cast doubt on

the juvenile's responsibilities for his actions or present

significant mitigating factors, the prosecutor is in a better

position to make an appropriate decision about whether

proceeding with arraignment is in the best interests of the

juvenile and is consistent with the interests of justice.      See

Newton N., 478 Mass. at 757.   Accordingly, we remind school

officials that, when seeking a delinquency complaint against a

juvenile with an IEP, the school officials should make sure that
                                                                   14


the prosecutor has knowledge of the relevant information in time

to make an informed decision whether to arraign the juvenile.

    In this case, the Commonwealth is now aware of the

existence of the IEP and is able to seek other information from

the school.   We trust that the Commonwealth will carefully

consider this information before proceeding further.   Guided by

this information, it is now within the prosecutor's sound

discretion whether to move for arraignment in this case or to

consider other alternatives.

    Conclusion.   The order allowing the motion to dismiss the

two assault and battery charges is vacated and the charges are

reinstated.

                                    So ordered.
