COMMONWEALTH v. JAMES J., 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

22-P-112

COMMONWEALTH

vs.

JAMES J., a juvenile.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial, the juvenile was adjudicated

delinquent for three counts of aggravated rape, two counts of

assault and battery by means of a dangerous weapon, and two

counts of assault and battery. On appeal, the juvenile raises a

variety of issues, none of which merit relief, and we affirm.

1. First complaint rule. The juvenile claims that in

several instances, reports of the victim's assault were admitted

in evidence in violation of the first complaint rule. See

Commonwealth v. King, 445 Mass. 217, 242-243 (2005), cert.

denied, 546 U.S. 1216 (2006). These reports include the

testimony of a Home Depot employee and a Massachusetts Constable

Officer that a Home Depot manager told them there had been a

rape or assault; the Massachusetts Constable Officer's testimony

that he became aware of a sexual assault over the scanner; the
Boston police report of a rape to the sexual assault unit; and

the victim's report of the incident to Sergeant Coughlin and to

the Sexual Assault Nurse Examiner (SANE) nurse. On no occasion

relative to this testimony did the juvenile lodge an objection.

In this posture, we review for error and, if any, whether that

error created a substantial risk of a miscarriage of justice.

See Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 697 (2015).

Pursuant to the first complaint rule, a sexual assault

victim may not "testify to the fact that she 'told' others,

apart from the first complaint witness, about the sexual

assault, even where the details of the conversation have been

omitted." Commonwealth v. Aviles, 461 Mass. 60, 68 (2011). See

Commonwealth v. Arana, 453 Mass. 214, 223 (2009). Here, the

testimony of the Massachusetts Constable Officer and Home Depot

employee was not first complaint testimony because neither of

them were testifying as to what the victim had reported.

Rather, they were percipient witnesses describing the

circumstances immediately following the assault. Not only was

the testimony not detailed, but it was also vague and did not

mention the juvenile or the victim. In this light, it served no

function in bolstering the victim's credibility.

The evidence of the Boston Police report of a rape to the

sexual assault unit was also not first complaint testimony.

This report did not state what the victim reported, and it did

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not even refer to her. This evidence was admissible to explain

the process of how the sexual assault unit becomes involved in a

sexual assault investigation, which is a legitimate purpose

other than corroborating the victim's account. See Arana, 453

Mass. at 226-227.

Finally, the victim's report to Sergeant Coughlin and to

the SANE nurse was also not first complaint testimony. The

victim reported how the juvenile held a knife to her throat, but

she did not refence the rape. Moreover, this testimony occurred

on cross-examination during defense counsel's effort to

challenge the victim's credibility. However, the SANE report

although admissible under G. L. c. 233, § 79, should have been

redacted to exclude any notations of "sexual assault," which are

conclusions concerning charged crimes. See Commonwealth v.

Dargon, 457 Mass. 387, 394-395 (2010). Despite this, there was

no substantial risk of a miscarriage of justice. This case was

tried jury-waived before a very experienced judge, who not only

is presumed to have instructed himself properly on the law, but

also would not have been led evidentially astray by a SANE

report in a rape case. 1 See Commonwealth v. Batista, 53 Mass.

App. Ct. 642, 648 (2002).

1 The juvenile's claim that several witnesses improperly
testified regarding their belief in the victim's allegations is
also without merit. Again, most of the complained of evidence
was generated from the individuals who testified to what they

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2. Toilet paper dispenser footprint. The juvenile also

claims that Sergeant Coughlin gave an improper lay opinion

regarding the juvenile standing on the toilet paper dispenser in

the bathroom stall, looking for the victim, and by describing

the juvenile as "stalking" in the surveillance video. We

disagree.

A lay opinion is admissible if it is "(a) rationally based

on the perception of the witness; (b) helpful to a clear

understanding of the witness's testimony or the determination of

a fact in issue; and (c) not based on scientific, technical, or

other specialized knowledge [quotation omitted]." Commonwealth

v. Canty, 466 Mass. 535, 541 (2013). Here, Coughlin made a

nonscientific observation that the footprint on the toilet paper

dispenser indicated that someone stood on it. While

characterizing the juvenile's behavior in the surveillance video

as "stalking" would have been better left unsaid, we conclude

that it was meant merely as a summary description of what

observed or heard, including seeing the armed juvenile running
from the scene of the rape. That one of the employees helped
the victim escape the bathroom stall does not suggest he
believed her account. Also, Sergeant Coughlin's testimony
regarding how a typical sexual assault investigation is
conducted was proper. See Commonwealth v. McCoy, 456 Mass. 838,
847 (2010). Moreover, his testimony that the police learned
there had been an assault properly explained why the crime lab
and the SANE nurse became involved in the case. Finally, the
challenged SANE nurse testimony involved general comments on
SANE process and protocols, and was not a specific comment on
this case.

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Coughlin saw in the surveillance video. See Kane v. Fields

Corner Grille, Inc., 341 Mass. 640, 647 (1961). In any event,

the juvenile was not charged with stalking, it was not an

opinion on the ultimate issue of the crimes with which the

juvenile had been charged, and the trial was conducted jury-

waived. See Commonwealth v. Cortez, 438 Mass. 123, 128-129

(2002). We discern no prejudicial error. 2

3. Self-defense. The juvenile next claims that the judge

improperly precluded the juvenile from asserting self-defense to

the charge of assault and battery by means of a dangerous

weapon. We disagree.

As an initial matter, the juvenile is correct that advance

written notice of self-defense, outside the circumstances

delineated in Commonwealth v. Adjutant, 443 Mass. 649 (2005), is

not required. See Mass. R. Crim. P. 14 (b) (4), 463 Mass. 1504

2 The juvenile also claims that the evidence of him being
arrested and booked had no relevance and was highly prejudicial
because it suggested that he had committed the sexual assault.
He also claims that his booking form and the booking video and
photographs were improperly admitted in evidence. Several
witnesses saw the juvenile flee the scene and saw him detained
after a struggle. The testimony relative to the booking was
generalized and did not specify that the juvenile was arrested
or booked. None of this placed "the imprimatur of the State on
the decision to arrest or to charge" the juvenile. Commonwealth
v. DaSilva, 471 Mass. 71, 81 (2015). In any event, the juvenile
has not established any unfair prejudice. Indeed, it would have
been of no surprise to the judge sitting as the factfinder to
learn that a juvenile charged with rape and assault and battery
by means of a dangerous weapon would have been arrested and
booked.

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(2012), and reporter's notes. And while the judge might have

precluded the juvenile from raising self-defense as a sanction

for not filing a pretrial conference report, see Mass. R. Crim.

P. 11 (a) (2) (B), as appearing in 442 Mass. 1509 (2004), the

better reason for precluding the defense was that it was simply

not available to the juvenile.

Although there is fertile ground to conclude that the

juvenile had not withdrawn from the rape and that his flight was

a continuous part of that crime, see Commonwealth v. Rogers, 459

Mass. 249, 255-256, cert. denied, 565 U.S. 1080 (2011), we need

not decide that question. Here, the juvenile was the initial

aggressor in the assault and battery by means of a dangerous

weapon against the Home Depot employee. 3 Indeed, the juvenile

brandished a knife at the employee (and others nearby), and the

employee responded with nondeadly force to disarm and capture

the juvenile. See Commonwealth v. Vickers, 60 Mass. App. Ct.

24, 29 (2003).

4. Waiver of jury trial. The juvenile next claims that

his waiver of his right to a jury trial was not knowing and

intelligent because, at the time, he did not know he could be

3 It is of no consequence that the judge misspoke when he
referred to the juvenile being the first aggressor in the
victim's rape where the juvenile was the first aggressor in both
crimes.

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committed to the Department of Youth Services (DYS) until the

age of nineteen. We disagree.

Essentially, the juvenile claims that he waived his right

to a jury trial because he believed that a jury trial would take

longer than a bench trial, and he wanted to be tried before he

turned eighteen to limit the maximum time of his commitment.

However, other than conjecture, the juvenile offers nothing from

the record to support his supposition. In fact, the juvenile's

claim itself implies that he understood the possibility of a

commitment to age nineteen, i.e., the very thing he was

attempting to avoid. Also, the fact that this case was

continued for the purposes of extending the rehabilitation

period before the Supreme Judicial Court established a legal

framework for doing so does not, in itself, render the

juvenile's waiver of a jury trial not knowing and voluntary.

See Noah N. v. Commonwealth, 489 Mass. 498, 499 (2022).

Finally, the juvenile "does not claim that he misunderstood the

scope and impact of this precious constitutional right," or that

"any mental or physical incapacity affected his ability to

understand the consequences of his choice." Commonwealth v.

Dietrich, 381 Mass. 458, 460-461 (1980). 4

4 The juvenile's claims that the continuance violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), is without merit. This was a
jury-waived trial where the judge acted as the factfinder.
Also, permitting the short continuance did not violate the

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5. The continuance. Finally, the juvenile claims that the

judge erred in continuing his sentencing hearing until the day

after his eighteenth birthday for the explicit purpose of

circumventing the sentencing limitations of G. L. c. 119, § 58,

and that, as a result, the juvenile's sentence should be set

aside. We disagree.

Relying on cases on collateral review, the juvenile

maintains that the new rule announced in Noah N., 489 Mass. at

502-503, cannot be applied retroactively to him. See Teague v.

Lane, 489 U.S. 288, 311-315 (1989); Commonwealth v. Bray, 407

Mass. 296, 303 (1990). However, this case is before us on

direct review. Because the juvenile's adjudication of

delinquency had not become final when the Supreme Judicial Court

announced the new rule in Noah N., it applies to his case

retroactively. See Griffith v. Kentucky, 479 U.S. 314, 320-328

(1987). Given this, the juvenile is correct that the judge did

not follow the procedure set forth in Noah N. for determining

whether the continuance was permissible. 5

juvenile's right to due process. His commitment to DYS was for
rehabilitative purposes, not punishment. See Commonwealth v.
Ulani U., 487 Mass. 203, 207 (2021). The juvenile was given
notice and an opportunity to be heard on the continuance, all of
which occurred after he was adjudicated delinquent. See
Betterman v. Montana, 578 U.S. 437, 448 (2016).

5 On the same day the Supreme Judicial Court decided Noah N. the
juvenile filed a motion pursuant to Mass. R. Crim. P. 30 (a), as
appearing in 435 Mass. 1501 (2001), which the judge denied. The

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However, at bottom, this case is moot. The juvenile

completed his DYS commitment over one year ago. In this

posture, where his commitment does not affect the validity of

his delinquency adjudications, the juvenile no longer has a

stake in the outcome. See Blake v. Massachusetts Parole Bd.,

369 Mass. 701, 703 (1976). Contrast Matter of a Minor, 484

Mass. 295, 299 (2020) ("individuals committed under G. L.

c. 123, § 35, have a personal stake in litigating a wrongful

commitment"). A longer period of rehabilitation does not

implicate the same concerns that a wrongful commitment does in

the context of G. L. c. 123, § 35.

Adjudications of delinquency
affirmed.

Order entered May 9, 2022,
denying emergency motion
for immediate release
affirmed.

By the Court (Meade,
Hershfang & D'Angelo, JJ. 6),

Clerk

Entered: October 4, 2023.

judge determined that he had implicitly found the necessary
components set out in Noah N. but he did so without conducting
the required evidentiary hearing.

6 The panelists are listed in order of seniority.

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