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General
As in years past, a significant proportion of the children committed
to the DYS are committed after a probation violation hearing;
not upon adjudication as a delinquent child or as a youthful offender.
One SJC and two Appeals Court decisions are significant to probation
matters. Jake J. v. Commonwealth, 433 Mass. 70 (2000); Commonwealth
v. McDonald, 50 Mass. App. Ct. 220 (2000) review granted 432 Mass.
1111 (2001) and Commonwealth v. Emmanuel M., Mass. App. Ct. (2001).
In Commonwealth v. Jake J, the Court considered whether a Juvenile
Court can release a juvenile with pretrial conditions, and if
so, what remedy is available when the juvenile violates the conditions
of his release. In Jake, J., the juvenile was before the Juvenile
Court on complaints charging shoplifting and assault and battery.
He was arraigned and released on $250.00 cash bail which was posted
by his mother. On the day of his release, the juvenile and his
mother signed a form, witnessed by a probation officer containing
"conditions of release." The conditions included reporting
to a probation officer as well as other, standard conditions.
Later, at the pre-trial conference an additional condition requiring
the juvenile to "attend school daily on time and obey all
rules" was added to the conditions of release. Ultimately
the juvenile was found to have violated this condition and was
ordered to be held in the custody of the DYS pending disposition
of the delinquency complaints.
In reviewing the conditions of release and the eventual jailing
of the juvenile, the Court first considered whether, following
the decision in Commonwealth v. Dodge, 428 Mass. 860, 864-866
(1999), conditions may be imposed on pre-trial release. It concluded
that G.L. c. 276 § 87 "enables a judge, with the defendant's
consent, to place the defendant on pretrial probation and then
to set conditions, again with his consent, for his release on
personal recognizance or bail." 433 Mass. at 71 (emphasis
added). In this case, the juvenile assented to the conditions
of his release. When the Court became aware of a violation of
the conditions of pretrial release, it promptly gave the juvenile
and his counsel notice of the violation and scheduled a hearing
to determine whether the juvenile had in fact violated the conditions
of release. The juvenile judge, conducted the violation hearing
pursuant to the procedures set out in G.L. c. 276 § 58B,
reasoning that there was no express provision for revoking pretrial
probation under § 87 and that the provisions in § 58B
would protect the juvenile's due process rights. (By its terms
§ 58B applies only to the revocation of conditions of release
set by the Court after a dangerousness hearing held pursuant to
§ 58A.)
While upholding the procedure followed in this case, the SJC
wrote that in future cases when a Juvenile Court releases a juvenile
on conditions, the record must clearly reflect whether the release
is on bail or personal recognizance under c. 276 § 58 and
that with the juvenile's consent and agreement he is simultaneously
placed on pretrial probation pursuant to § 87. The conditions
must be set out in writing and the judge must explain the consequences
of violating any of the conditions. 433 Mass. at 76. The Court
stressed that these requirements are "matters of substance,
not merely of form. Placing a juvenile on conditions of release
under § 87 should be more than '[a]rtful nomenclature.'"
433 Mass. at 76-77 (citation omitted). In the absence of any statutory
procedure for revoking conditions of pretrial release imposed
pursuant to § 87, the Court reasoned that the Juvenile Court
had the "inherent authority" to revoke such conditions.
433 Mass. at 77. Further, the Court held that the Juvenile Court
could properly look to the procedures set out in § 58B. To
revoke conditions of pre-trial release, there must be clear and
convincing evidence that the juvenile violated the previously
established conditions and the judge must conclude that the juvenile
is unlikely to abide by any other conditions or combination of
conditions. 433 Mass. at 78-79.
In Commonwealth v. McDonald, 50 Mass. App. Ct. 220 (2000) review
granted 432 Mass. 1111 (2001) the Appeals Court held that conditions
of probation must be set by the sentencing judge; not the probation
officer. 50 Mass. App. Ct. at 222-223. In McDonald, the docket
sheet reflected that as a condition of probation the defendant
was to stay away from the victim, who was also the mother of his
children. When the probation officer reduced the conditions to
writing, he wrote that the defendant was to have no contact with
the victim. The defendant signed conditions of probation containing
the no contact provision. Later, the defendant sent a letter to
the victim about an upcoming care and protection hearing concerning
their children. The victim reported this contact to the probation
officer who issued a surrender notice alleging that the defendant
had violated the no contact order. Prior to the hearing, the defendant
moved to dismiss the violation arguing that he had been ordered
only to stay away from the victim; not to have no contact with
her. The motion to dismiss was denied, the hearing judge reasoning
the terms of the probation constituted a contract which the defendant
had accepted. At the subsequent hearing, the defendant was found
to be in violation of the no contact condition of probation. On
appeal, the Appeals Court reversed the finding of violation and
remanded the case for further proceedings to determine whether
the judge had ordered that the defendant stay away from the victim
or have no contact with her. 50 Mass. App. Ct. at 224. It reasoned
that under G.L. c. 276 § 58, it is the sentencing court that
sets the probationary conditions that are deemed proper. Therefor,
if the judge imposed only a stay away order, the probation officer's
no contact directive was not enforceable. 50 Mass. App. Ct. at
222-223. The Appeals Court rejected the argument that the probation
conditions are a contract, which the defendant had accepted by
signing the conditions, noting that there is "no mutuality
of agreement or obligation." 50 Mass. App. Ct at 223. And,
that defendants and judges are not "equal contracting parties."
Id.
Commonwealth v. Emmanuel E., 51 Mass. App. Ct. 451 (2001)
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Required Finding
In Commonwealth v. Brown, 50 Mass. App. Ct. 253 (2000), police
were called to a residence in response to reports of shots being
fired outside the house. One witness described three persons who
generally looked like the defendants and testified that she had
seen three persons running down the street. This witness did not
make any in-court identifications. She also testified that after
seeing three persons enter an apartment, she saw two of persons
leave the apartment, approach a dumpster and the area of a shed,
then re-enter the apartment. Police responded to this apartment
and heard noises inside, but no one answered the door. A lady
and a small child who were identified as residents of the apartment
left through the backdoor. When the police entered the apartment
they found the defendant and two companions. Upon searching the
apartment a 9mm handgun was found under a couch on which two of
the defendants were seated. A second gun was found in the dumpster
and a third in the shed. All three defendants were convicted on
complaints charging possession of a firearm and possession of
ammunition. At trial the Commonwealth proceeded on the theory
that the defendants either possessed the firearms or were joint
venturers in the possession of the firearms. The Appeals Court
reversed the convictions.
"To convict on a theory of accessorial responsibility, it
is not necessary to show that the defendant himself possessed
the [contraband], either actually or constructively, . . . but
it is frequently said that it is necessary to show that the defendant
aided in the possession and in each other element of the substantive
offense." 50 Mass. App. Ct. at 256, quoting, Commonwealth
v. James, 30 Mass. App. Ct. 490, 498-499 (1991). Establishing
joint venturer liability for possession of a firearm does not
require proof that a defendant had actual or constructive possession
of the firearm, but does require proof that an identified defendant
was an accessory to another identified defendant in possessing
a firearm. 50 Mass. App. Ct. at 256. In this case, there was no
evidence that any specific defendant aided another defendant in
possession of the guns and thus no basis for proving joint venture
liability. 50 Mass. App. Ct. at 256-257. As to actual possession,
there was no direct evidence of actual possession "such as
by observation, fingerprints or paraffin tests." 50 Mass.
App. Ct. at 257. Further, because there was no evidence identifying
the men who were near the shed and the dumpster there was no proof
which two of the three may have had actual or constructive possession
of the guns found there. "The logical inference that two
of the three defendants my each have possessed a gun is not a
substitute for proof beyond a reasonable doubt that an identified
defendant possessed a specific gun. . . As juries long have been
instructed, 'it is not sufficient to establish a probability,
though a strong one arising from the doctrine of chances, that
the fact charged is more likely to be true than the contrary;
but the evidence must establish the truth of the fact to a reasonable
and moral certainty.'" 50 Mass. App. Ct. at 258, quoting,
Commonwealth v. Webster, 59 Mass. 295, 320 (1850). As to the gun
found under the couch, the Court held that the evidence did not
prove that any defendant had knowledge that the gun was there.
The police did not find the gun until they lifted and moved the
couch and none of the defendants made any unusual moves suggesting
knowledge of a concealed gun. 50 Mass. App. Ct. at 258.
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