COMMONWEALTH v. HARRY H., a Juvenile.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1121

COMMONWEALTH

vs.

HARRY H., a juvenile.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the juvenile was adjudicated delinquent

on charges of assault and battery, in violation of G. L. c. 265,

§ 13A (a), and malicious destruction of property under $1,200,

in violation of G. L. c. 266, § 127. The judge entered a

continuance without a finding for one year with respect to each

charge.2 Once the juvenile successfully completed the

administrative probationary period, both charges were dismissed.3

1 A pseudonym.

2See Commonwealth v. Magnus M., 461 Mass. 459, 463-464
(2012) (determining that G. L. c. 119, § 58, permits a Juvenile
Court judge to continue a case without finding notwithstanding
adjudication of delinquency).

3The Commonwealth contends that the juvenile's appeal is
moot because the case was ultimately dismissed. However,
On appeal, he claims that the judge abused her discretion by

permitting the victim to make an in court identification, and by

denying his request for a jury instruction that would have

permitted the jury to consider his youth in determining

delinquency. The juvenile also maintains that the prosecutor's

opening statement constituted prejudicial error. We affirm.

Discussion. 1. In-court identification of the juvenile.

Prior to commencement of the trial, the Commonwealth requested

permission to ask the victim to make an in-court identification

of his assailant, pursuant to Commonwealth v. Crayton, 470 Mass.

228, 243 (2014). The juvenile objected, and the judge allowed

the Commonwealth's request for the parties to conduct a voir

dire examination of the victim.

During voir dire, the victim testified that his close

friend, Ashley, was in a relationship with the juvenile. The

victim had not met the juvenile in person prior to the incident

giving rise to the charges, and they did not go to the same

school. However, the victim was aware of the defendant's

relationship with Ashley because she had told him they were

because the juvenile has shown that "there remain genuine and
serious collateral consequences" to the jury's adjudications of
delinquency by virtue of such adjudications appearing on his
record, among other things, we do not agree that the case is
moot (citation omitted). Commonwealth v. Oswaldo O., 94 Mass.
App. Ct. 550, 553 (2018). See Commonwealth v. Preston P., 483
Mass. 759, 768-769 (2020); Commonwealth v. Humberto H., 466
Mass. 562, 572-573 (2013).

2
dating and the victim followed Ashley on Instagram, a social

media platform, where she had posted pictures of the juvenile on

her "highlights."4 The victim viewed the juvenile on Ashley's

highlights approximately four times. In each of these

highlights, the juvenile appeared to have a different hair

color. Notably, the fourth time the victim saw him, the

juvenile had an unnatural "candy red" hair color. The victim

did not follow the juvenile on Instagram, but he knew his first

name and Instagram handle.

As to the incident, the victim testified that Ashley asked

to walk him home after school one day. The victim felt this was

suspicious, so he declined her invitation and went home alone

using a different route. When he turned onto his street, the

juvenile came up from behind and started attacking him. The

juvenile then pulled down the mask he was wearing and said,

"Don't talk shit again." The juvenile threw the victim's phone

on the ground and broke it before fleeing the scene with the

victim's bicycle.5 The victim testified that he knew it was the

4 As explained by the victim, "highlights" are posted
stories that a user saves at the top of their Instagram profile.
Generally, others can only view a user's story at any time
during a twenty-four period. However, once a story is saved to
a user's highlights, others can view the story at any time until
the user deletes them from the user's profile.

5 The juvenile was not charged with any crime related to the
victim's bicycle. Accordingly, the judge allowed the juvenile's

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juvenile who attacked him because when the mask was pulled down,

the victim could see the juvenile's face and red hair, which was

similar to the "candy red" shade he previously had seen on

Instagram. The victim provided the juvenile's first name and

Instagram handle to the two officers who arrived on scene.

Based on this testimony, the judge allowed the Commonwealth's

motion over the juvenile's objection, and the victim ultimately

identified the juvenile at trial.

On appeal, the juvenile claims that the judge should not

have permitted the victim to identify him in court, without

having participated in a prior, out-of-court identification

procedure, because there was no "good reason" to admit such

evidence. Crayton, 470 Mass. at 243. We review the judge's

ruling for an abuse of discretion. See Commonwealth v. Collins,

92 Mass. App. Ct. 395, 397 (2017). "[A] judge's discretionary

decision constitutes an abuse of discretion where we conclude

the judge made 'a clear error of judgment in weighing' the

factors relevant to the decision, . . . such that the decision

falls outside the range of reasonable alternatives" (citation

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

"Where an eyewitness has not participated before trial in

an identification procedure, we shall treat the in-court

request for the victim to not mention anything about the bicycle
in front of the jury.

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identification as an in-court show up, and shall admit it in

evidence only where there is 'good reason' for its admission."

Crayton, 470 Mass. at 241. "[T]here may be 'good reason' for

the first identification procedure to be an in-court show up

where the eyewitness was familiar with the [juvenile] before the

commission of the crime, such as where a victim testifies to a

crime of domestic violence." Id. at 242. "This is so because

'the witness is not identifying the [juvenile] based solely on

his or her memory of witnessing the defendant at the time of the

crime,' and therefore 'there is little risk of misidentification

arising from the in-court show up despite its suggestiveness.'"

Commonwealth v. Gil, 104 Mass. App. Ct. 124, 129 (2024), quoting

Crayton, supra at 243. "Good reason" may also exist where the

eyewitness had "an extensive and intensive opportunity to

observe the [juvenile]." Commonwealth v. Fielding, 94 Mass.

App. Ct. 718, 723 (2019). The juvenile bears the burden of

proving that there is not "good reason" for the in-court

identification. See Crayton, 470 Mass. at 243.

In Gil, we held that "good reason" existed for the trial

judge to allow the eyewitness to make an in-court identification

of the defendant, even though the eyewitness did not personally

know the defendant. Gil, supra at 129-130. The eyewitness

testified that he recognized the defendant because he "'had just

seen her before . . . on videos and on [his family member's

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Snapchat] stories,'6 and in the past, he 'would see her out . . .

in different businesses, different bars with [the family

member]'" (footnote in original). Id. at 127 & n.3. The in-

court identification was also supported by the eyewitness's

interactions with the defendant during and immediately after the

crime, including physically placing himself in such a way as to

prevent further injury to the victim and escorting the defendant

out of the apartment, which provided him with an "intensive

opportunity to observe" the defendant. Id. at 130, quoting

Fielding, 94 Mass. App. Ct. at 723. Thus, relying on all of

these factors, the eyewitness's prior familiarity with the

defendant's image from social media, his observations of her in

social settings, and his opportunity to observe the defendant

during and immediately after the crime, we concluded that the

judge did not abuse his discretion in allowing the eyewitness to

identify the defendant for the first time at trial. Gil, supra.

While Gil also concerned an in-court identification based

partially on the eyewitness viewing the perpetrator on another's

social media posts, the facts before us present a closer

6 "Snapchat is a social media application [that allows
users] to publish . . . video recordings . . . [and] to share
text, photographs, and video recordings, collectively known as
'snaps'" (citation omitted). Commonwealth v. Carrasquillo, 489
Mass. 107, 108-109 (2022). A 'story' is 'shared with a larger
audience [than direct snaps], remain[s] visible for up to
twenty-four hours, and can be continuously replayed' (citation
omitted). Id. at 109."

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question as to whether the in-court identification was proper.

Here, the victim had less prior familiarity with the juvenile

and did not have such an "intensive opportunity to observe" him.

Gil, 104 Mass. App. Ct. at 130, quoting Fielding, 94 Mass. App.

Ct. at 723. The victim had not seen the juvenile in person

before, and he only saw the juvenile's face briefly at the time

of the incident, when his mask was pulled down. However, the

victim nonetheless instantly recognized the juvenile. He had

previously seen the juvenile's face four times on Ashley's

Instagram highlights, and the juvenile had the same unnatural

"candy red" hair color that he had in Ashley's most recent

highlight.7 The victim was able to provide the juvenile's first

name and individual Instagram handle to the officers at the

scene based on this prior familiarity. Because the victim did

not identify the juvenile based solely on his memory of

witnessing the juvenile at the time of the crime, there was

little risk of misidentification arising from the in-court show

up despite its suggestiveness. See Crayton, 470 Mass. at 243;

Gil, 104 Mass. App. Ct. at 128, 130. Accordingly, we conclude

that the judge did not abuse her discretion in permitting the

victim to identify the juvenile in court.

7 The fact that the victim felt it was suspicious that
Ashley, the juvenile's girlfriend, asked to walk him home that
day provides additional support for the identification.

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2. Juvenile-specific jury instruction. The juvenile next

claims that the judge abused her discretion in not instructing

the jury, as requested, that they could consider his youth as a

factor in determining delinquency. The juvenile proposed that

the judge instruct the jury as follows:

"This is a case where the accused is a child. The United
States Supreme Court has determined, based on science and
common sense, that children are different than adults in
three significant ways: first, children lack maturity and a
sense of responsibility; second, children are more
susceptible to negative influences and outside pressures;
and third, a child's character is not as full-formed as an
adult.

"Anyone who remembers being a teenager, who has been the
parent or caretaker of a teenager, or who has observed
adolescent behavior, knows intuitively what scientific
research shows – that adolescents do not think or behave
like adults; their brains are not yet fully developed in
the areas that control impulses, ability to foresee the
consequences of their actions, and to temper their
emotions. These differences are characteristics that you
may consider as you listen to the evidence in this case."

We discern no abuse of discretion. In Commonwealth v. Brown,

474 Mass. 576, 589 (2016), the Supreme Judicial Court reviewed a

judge's denial of a similar request and determined that there

was no error. In that case, the defendant requested an

instruction which would have told the jury that "there was

evidence that [the defendant] was a juvenile and therefore had

less or a diminished capacity than an adult for making critical

judgments." Id. Although the requested instruction at issue

here provided that the jury "may consider" the differences

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between juveniles and adults, like the instruction in Brown,

"[t]he proposed instruction in this case essentially directed

the jury to accept, as a matter of law, that all juveniles lack

the capacity to form the requisite criminal intent to commit" an

assault and battery and malicious destruction of property. Id.

at 590. However, "although children may not have the maturity

fully to appreciate the consequences of wrongful actions, 'that

does not mean that a delinquent child lacks the ability to

formulate the specific intent to commit particular wrongful

acts.'" Commonwealth v. Okoro, 471 Mass. 51, 65 (2015), quoting

Commonwealth v. Ogden O., 448 Mass. 798, 804 (2007). We further

note that the Legislature has determined that youth in the

juvenile's age group are capable of forming the requisite intent

to commit the charged acts, and "it is not the province of the

court to sit and weigh conflicting evidence supporting or

opposing a legislative enactment." Okoro, supra, quoting Ogden,

supra at 805 n.6. The juvenile was not entitled to the

requested instruction.

3. The Commonwealth's opening statement. Finally, the

juvenile claims that it was error for the trial prosecutor to

conclude his opening statement by stating, "Thank you, and I

know that you'll make the right decision." The juvenile timely

objected, so we review for prejudicial error. Brown, supra at

588. "[A] claim of improper [opening statement] by the

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prosecutor must be judged in light of the entire [statement],

the judge's instructions to the jury, and the evidence actually

introduced at trial." Commonwealth v. Kapaia, 490 Mass. 787,

794 (2022), quoting Commonwealth v. Barbosa, 477 Mass. 658, 669

(2017).

Here, the challenged statement was improper. While the

prosecutor did not explicitly state that the "right decision"

would be to find the juvenile delinquent, the statement was

susceptible of conveying that meaning. "It is improper for a

prosecutor to equate a guilty verdict with justice."

Commonwealth v. Francis, 450 Mass. 132, 140 (2007). The

challenged statement is similar to certain remarks in closing

statements that have been deemed impermissible. See

Commonwealth v. Degro, 432 Mass. 319, 329 (2000) ("a request

that the jury do their 'job,' although not explicitly stating

that this effort will result in a guilty verdict, is not

permissible advocacy"); Commonwealth v. Deloney, 59 Mass. App.

Ct. 47, 53 (2003) ("'Now is the time for justice. Find him

guilty' . . . creates too great a risk of misinterpretation by

the jury that there is a duty to convict . . . or that proper

performance of their function requires a guilty verdict"

[citations omitted]); Commonwealth v. Cobb, 26 Mass. App. Ct.

283, 286 (1988) (reference to the jury's "duty," even "without

an explicit statement that its exercise will result in a verdict

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of guilty, should be held to pass the line of permissible

advocacy").

However, "[t]he jury have the ability to discount hyperbole

and other improper statements . . . and the trial judge's

instructions are generally adequate to cure errors in the

arguments" (citations omitted). Commonwealth v. Santiago, 425

Mass. 491, 495 (1997). "Thus, in many cases, arguments by the

prosecutor, while in error, are not unduly prejudicial." Id.

This is one such case.

Here, the judge instructed the jury that opening statements

are not evidence just prior to the Commonwealth's opening

statement and in her final charge to the jury.8 We presume the

jury followed these instructions. See Commonwealth v.

Silanskas, 433 Mass. 678, 702 (2001). Additionally, "we presume

the jury 'know that the prosecutor is an advocate' . . . and

that they recognize arguments as 'advocacy and not statements of

personal belief'" (citations omitted). Commonwealth v.

Valentin, 474 Mass. 301, 310 (2016), quoting Commonwealth v.

8 The juvenile maintains that the judge should have reminded
the jury that opening statements are not evidence or provided a
curative instruction immediately following the improper
statement, and that the failure to do so was unduly prejudicial.
We believe, however, that the instructions the judge did provide
to the jury were sufficient to overcome any undue prejudice.

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Mejia, 463 Mass. 243, 254 (2012). Thus, while the statement was

made in error, it did not unduly prejudice the juvenile.

Adjudications of delinquency
affirmed.

By the Court (Vuono, Rubin &
Walsh, JJ.9),

Clerk

Entered: September 19, 2024.

9 The panelists are listed in order of seniority.

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