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SJC-11624

               COMMONWEALTH   vs.   RASHIDI J. SMITH.



        Plymouth.     December 4, 2014. - April 9, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.



Homicide. Constitutional Law, Waiver of constitutional rights
     by juvenile, Admissions and confessions. Evidence,
     Admissions and confessions. Practice, Criminal, Admissions
     and confessions. Supreme Judicial Court, Superintendence
     of inferior courts.



     Indictment found and returned in the Superior Court
Department on August 17, 2007.

     A pretrial motion to suppress evidence was heard by Jeffrey
A. Locke, J., and the case was tried before him.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Chauncey B. Wood for the defendant.
     Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
     Rebecca Rose, for Committee for Public Counsel Services &
others, amici curiae, submitted a brief.
                                                                    2


    LENK, J.   The defendant appeals from his conviction of

murder in the second degree in the death by shooting of fourteen

year old Marvin Constant.   At the time of his arrest for the

shooting, the defendant was seventeen years and five months old.

The Commonwealth's evidence at trial included, among other

things, incriminating statements that the defendant made to

police after waiving his Miranda rights.   See Miranda v.

Arizona, 384 U.S. 436 (1966).   The defendant sought,

unsuccessfully, to suppress these statements.   He argues on

appeal that their introduction at trial was error given our

common-law rule that, ordinarily, a juvenile must be afforded a

meaningful opportunity to consult with an "interested adult"

before waiving his or her Miranda rights, since he did not have

such an opportunity.

    The interested adult rule, as we have defined it to date,

applies only to those who have not yet reached the age of

seventeen.   Several years after the defendant was convicted,

however, the Legislature enacted St. 2013, c. 84 (2013 act),

which amended an array of statutory provisions to treat

seventeen year olds as juveniles.

    The 2013 act does not affect the current case, both because

it is prospective in its application and because it does not

itself modify the interested adult rule, which is a creature of

our common law.   We therefore affirm the defendant's conviction.
                                                                       3


Nevertheless, we take this opportunity to expand the reach of

our rule to encompass seventeen year olds, but do so on a

prospective basis.1

     1.   Background.    a.   The crime.   The facts that could have

been found by the jury include the following.      In June, 2007,

members of two gangs were present at a cookout at a home on

Crescent Street in Brockton.      The defendant was associated with

one of the two gangs.     A fight broke out at the cookout, and a

window was broken.

     The next day, the defendant arrived at the Crescent Street

home, wearing a red sweatshirt with black sleeves.      The

defendant spoke to a member of the gang with which he was

associated, saying that the events of the previous night had

been "messed up."     The defendant then had a conversation with

the victim, who belonged to the other gang.

     The defendant and the victim left the house together.      A

few minutes later, witnesses heard three gunshots.      A witness

saw the victim lying in the street and a person wearing a red

sweatshirt ride off on a bicycle.      An autopsy revealed that the

victim had been killed by two gunshot wounds.



     1
       We acknowledge the amicus brief of the Committee for
Public Counsel Services, the American Civil Liberties Union
Foundation of Massachusetts, the Massachusetts Society for the
Prevention of Cruelty to Children, and Citizens for Juvenile
Justice.
                                                                   4


    By happenstance, police officers were, at that time,

driving an unmarked sport utility vehicle (SUV) in the area.

They saw the defendant drop a bicycle to the ground, run, and

hurriedly flag down and enter a passing green Honda automobile.

Before getting into the vehicle, the defendant was seen

clutching his waistband area in a manner that suggested to the

officers that he might be concealing a weapon there.   After

briefly following the Honda, the detectives stopped it.    They

found a gun on the floor of the Honda where the defendant had

been sitting.   The gun's ten-bullet magazine had seven bullets

in it, and the gun was jammed; that type of jam could have

occurred only if the gun had been fired.   Ballistics testing

subsequently indicated that the gun had been used to shoot three

cartridge casings and one spent projectile that were recovered

in the vicinity of the victim's body.

    b.   Statements to police.2   The defendant, then seventeen

years and five months old, was arrested and taken to the

Brockton police station.   The defendant previously had been

involved in several delinquency cases, and had been charged with

firearm-related offenses that ultimately were dismissed.     Police

booked the defendant and informed him of his Miranda rights.

They then provided the defendant with a Miranda waiver form and

    2
       The facts in this section, which are not in dispute, are
drawn primarily from the written decision of the Superior Court
judge denying the defendant's motion to suppress.
                                                                      5


asked him to read the form aloud.   When the defendant had

difficulty doing so, a detective read the form to the defendant,

pausing to ask after each line whether the defendant understood.

The defendant initialed each of the rights on the form as well

as the word "YES" at the bottom of the form.     He also agreed

orally to waive his rights and to tell his side of the story.

    During the first hour of questioning, the defendant

maintained that he had not been present when the victim was

shot, and that he had gotten into the green Honda only to "hang

out" with a friend who was in the vehicle.     When police officers

told the defendant that they knew he had been at the scene and

believed that he had been the shooter, the defendant said that

he had nothing to add, and the interview was terminated.

    On the way back to the holding cell, the defendant asked

the detectives why they did not believe him.     One of the

detectives said, "I saw you."   The defendant asked, "You were in

the SUV?"   When the officer answered affirmatively, the

defendant requested that the interview resume.    He then told

police that he had been present when the victim was shot, and

that a man named "Triz" had been the shooter.

    c.   Proceedings.   The defendant was charged with murder.

Before trial, he moved to suppress his statements to police.

The defendant argued, among other things, that his Miranda

waiver had not been valid because he had not had a meaningful
                                                                      6


opportunity to consult with an interested adult.     After an

evidentiary hearing, a Superior Court judge denied the motion to

suppress in a detailed written decision.     The judge determined

that the interested adult rule was not applicable because

although, at seventeen years of age, the defendant was a

"minor," he was not a "juvenile" subject to that rule.      Based on

the evidence presented, including a recording of the interviews

with the defendant, the judge found that "the circumstances

surrounding the defendant's waiver of rights show[], beyond a

reasonable doubt[,] that it was voluntarily and intelligently

made."

    At trial, the defendant testified that a friend, Terrence

Young, had been the shooter.     Young had died by the time of the

trial.   The defendant stated that he had made up the name "Triz"

when he spoke to police in order to protect Young.      The jury

convicted the defendant of murder in the second degree, and the

Appeals Court affirmed.      Commonwealth v. Smith, 84 Mass. App.

Ct. 1116 (2013).    We granted the defendant's application for

further appellate review, limited to the issue of the

application of the interested adult rule.

    2.    Discussion.   a.   Legal framework.   The Commonwealth is

subject to "a heavy burden to demonstrate that the defendant

knowingly and intelligently waived his privilege against self-

incrimination."    Commonwealth v. Berry, 410 Mass. 31, 34 (1991),
                                                                      7


quoting Commonwealth v. Guyton, 405 Mass. 497, 500 (1989).     This

burden grows heavier still when the defendant is a juvenile,

because studies have shown that "most juveniles do not

understand the significance and protective function of the[ir]

rights even when they are read the standard Miranda warnings."

Commonwealth v. A Juvenile, 389 Mass. 128, 131 (1983) (A

Juvenile).   "Special caution" therefore must be exercised when

police present juveniles with the option of waiving their

Miranda rights, see Commonwealth v. Berry, supra at 34, in order

"to ensure that the juvenile defendant has understood his rights

and the consequences of waiving them."   Commonwealth v. McCra,

427 Mass. 564, 568 (1998) (citations omitted).

    In A Juvenile, supra at 134, and subsequent cases, we

sought to give shape to the caution appropriate in such

circumstances by establishing the following rules.    First, "in

the case of juveniles who are under the age of fourteen . . . no

waiver can be effective" unless "a parent or an interested adult

was present, understood the warnings, and had the opportunity to

explain [the] rights to the juvenile."   Id.   Next, juveniles

between fourteen and seventeen years old must be "afforded the

opportunity to consult with an interested adult."    See

Commonwealth v. Berry, 410 Mass. at 35, citing Commonwealth v.

Guyton, supra at 500-502, and Commonwealth v. MacNeill, 399

Mass. 71, 78 (1987).   Even if this opportunity is not given, a
                                                                     8


Miranda waiver made by a juvenile of fourteen to seventeen may

be valid if "the circumstances . . . demonstrate a high degree

of intelligence, experience, knowledge, or sophistication on the

part of the juvenile."    A Juvenile, supra.

    The interested adult rule provides "additional protection[]

under the common law . . . that go[es] beyond what the Supreme

Court would require in similar circumstances."    See Commonwealth

v. Simon, 456 Mass. 280, 303, cert. denied, 562 U.S. 874 (2010),

quoting Commonwealth v. Snyder, 413 Mass. 521, 531 (1992).       This

rule is essentially a prophylactic device, which seeks to

"establish[] . . . definite procedures" that "inform[] police

and prosecutors with specificity as to what they may do in

conducting custodial interrogation" and "inform[] courts under

what circumstances statements obtained during such interrogation

are not admissible."     Commonwealth v. Philip S., 414 Mass. 804,

812-813 (1993), quoting A Juvenile, 389 Mass. at 135.

    b.    Analysis.   As noted, the defendant in this case was

several months older than seventeen when he was interviewed by

police.   We have stated repeatedly that a "defendant [is] no

longer entitled to interested adult protections at age

seventeen."   See Commonwealth v. Ray, 467 Mass. 115, 132 (2014),

citing Commonwealth v. Trombley, 72 Mass. App. Ct. 183, 186

(2008).   See also Commonwealth v. Robinson, 449 Mass. 1, 4 n.6

(2007); Commonwealth v. Considine, 448 Mass. 295, 297 n.7
                                                                     9


(2007); Commonwealth v. Mavredakis, 430 Mass. 848, 855 n.12

(2000); Commonwealth v. Carey, 407 Mass. 528, 537 (1990).     The

defendant's contention that his statements to police should have

been suppressed under the interested adult rule is therefore

unavailing.   The motion judge correctly determined that the rule

did not apply.   There was also no error in the judge's

determination that, given the circumstances surrounding the

defendant's waiver of his Miranda rights, the waiver was

voluntary and intelligent beyond a reasonable doubt.

     The defendant argues that the passage of the 2013 act

entitles him to the protection of the interested adult rule.    As

mentioned, this statute expands the definition of the term

"juvenile," in various contexts, to include seventeen year olds.

The defendant's argument fails for two reasons.

    First, the 2013 act, which became law on September 18,

2013, states that it "shall take effect upon its passage."

St. 2013, c. 84, § 34.   In Watts v. Commonwealth, 468 Mass. 49

(2014), we considered whether the 2013 act applies retroactively

to cases pending when the act took effect.   We noted there,

among other things, that "[r]etroactive application of the

act . . . would present potential legal and appellate issues

concerning the effect of proceedings that had already taken

place," including challenges to "the admissibility of statements

made by a juvenile who was seventeen years of age to
                                                                     10


police . . . if the juvenile did not have the opportunity to

consult with a parent, interested adult, or attorney."      Id. at

59, citing A Juvenile, 389 Mass. at 134.      Our analysis of the

2013 act's history, substance, and underlying purpose led us to

conclude that the act applies prospectively only.      The defendant

was interviewed by police more than six years prior to the

effective date of the 2013 act, and his motion to suppress was

denied more than three years before that date.     The propriety of

the defendant's Miranda waiver and the admissibility of his

statements are not, therefore, affected by the passage of the

2013 act.

       Moreover, the 2013 act does not itself modify the scope of

the interested adult rule.     The interested adult rule is a rule

of our common law, not one constitutionally mandated or

legislatively enacted.      See Commonwealth v. Simon, 456 Mass. at

303.    The various statutory provisions addressed by the 2013 act

do not expressly or implicitly concern the interested adult

rule.    Consequently, the 2013 act would not have entitled the

defendant to the protection of the interested adult rule even

had it taken effect before the defendant was interviewed by

police.

       c.   Future cases.   While the 2013 act does not, itself,

modify the interested adult rule, we take this opportunity to

extend the rule, on a prospective basis, to seventeen year old
                                                                 11


defendants.   Like the interested adult rule itself, this

modification is not constitutionally or statutorily required.

Nevertheless, in the wake of the 2013 act, seventeen year olds

will be treated as juveniles in a myriad of contexts.     See,

e.g., St. 2013, c. 84, § 1, amending G. L. c. 6, § 167 (criminal

record information); St. 2013, c. 84, §§ 7-27, amending sections

of G. L. c. 119 (proceedings against delinquent children);

St. 2013, c. 84, § 30A, amending G. L. c. 276, § 87 (placement

in custody of probation officer); St. 2013, c. 84, § 31,

amending G. L. c. 276, § 89A (appointment of counsellors to

juvenile offenders); St. 2013, c. 84, § 33, amending G. L.

c. 280, § 6B (imposition of criminal assessments).

Considerations of consistency and ease of application thus

support the extension of our rule, too, to seventeen year olds.

    Because our modification of the scope of the interested

adult rule is "not a new constitutional rule, but rather an

exercise of our power of superintendence 'to regulate the

presentation of evidence in court proceedings,'" it will apply

only to interrogations conducted after the issuance of the

rescript in this case.   See Commonwealth v. Woods, 466 Mass.

707, 720, cert. denied, 134 S. Ct. 2855 (2014), quoting

Commonwealth v. Dagley, 442 Mass. 713, 720–721 (2004), cert.

denied, 544 U.S. 930 (2005).   See also Commonwealth v. Clemente,

452 Mass. 295, 305 (2008), cert. denied, 555 U.S. 1181 (2009);
                                                                  12


Commonwealth v. Pring-Wilson, 448 Mass. 718, 736 (2007), and

cases cited; E.B. Cypher, Criminal Practice and Procedure

§ 1:21, at 37 (4th ed. 2014).   Contrast Commonwealth v.

Figueroa, 413 Mass. 193, 201-202 (1992) (discussing retroactive

application of constitutionally required rule).3   Prospective

application is particularly appropriate in the current context,

given that the interested adult rule is specifically intended to

establish fixed procedures that may be relied upon by police and

by the courts.   See Commonwealth v. Philip S., 414 Mass. at 812-

813, quoting A Juvenile, 389 Mass. at 135.   This goal would be


     3
       In Commonwealth v. Adjutant, 443 Mass. 649, 667 (2005), we
"for the first time [applied] a new rule of criminal law, not
constitutionally mandated, to the defendant before us, even
though we said in the decision that the new rule would apply
prospectively." Commonwealth v. Pring-Wilson, 448 Mass. 718,
736 (2007). This was a "most unusual" exception "to our normal
practice of prospective application." See Commonwealth v.
Clemente, 452 Mass. 295, 305 (2008), cert. denied, 555 U.S. 1181
(2009). We deemed that exception warranted because,
essentially, the doctrine that we updated in Commonwealth v.
Adjutant had been "paramount" in that case, and had resulted in
exclusion of evidence that, "[g]iven [its] probative value . . .
may have been enough to create reasonable doubt of the
defendant's guilt." See Commonwealth v. Pring-Wilson, supra at
736, quoting Commonwealth v. Adjutant, supra at 666. See also
Commonwealth v. Russell, 470 Mass. 464, 479 (2015) (declining to
apply new rule to defendant where we were "not concerned that in
the absence of the new rule there may have been a miscarriage of
justice"); Commonwealth v. Crayton, 470 Mass. 228, 252-253
(2014) (explaining that the Adjutant rule was subsequently
applied in Commonwealth v. Pring-Wilson because, in the
circumstances, the "integrity of [the] verdict was suspect").
Given the circumstances surrounding the defendant's statements
to police, as well as the limited role that those statements
played at his trial, we are satisfied that our normal practice
of prospective application works no injustice here.
                                                                  13


unnecessarily compromised by the application of our revised

interested adult rule to the defendant or to others similarly

situated after the fact.   See Commonwealth v. Watts, 468 Mass.

at 59.

                                   Judgment affirmed.
