Peterson v. Commonwealth (Lawyers Weekly No. 10-191-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12281 OMARI PETERSON vs. COMMONWEALTH. Suffolk. September 5, 2017. – November 29, 2017. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ. Erroneous Conviction. Practice, Civil, Motion to dismiss, Review of interlocutory action. Civil action commenced in the Superior Court Department on December 12, 2014. A motion to dismiss was heard by Peter M. Lauriat, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Adam R. LaGrassa, Assistant Attorney General, for the Commonwealth. William S. Smith for the plaintiff. LOWY, J. After the Appeals Court reversed the conviction of the plaintiff, Omari Peterson, and set aside the verdict on a charge of unlawful possession of a dangerous weapon, he filed a civil complaint in the Superior Court seeking compensation under the erroneous convictions statute, G. L. c. 258D. A judge denied the Commonwealth’s motion to dismiss the complaint, and the Commonwealth appealed.[1] We transferred the case here on our own motion to determine whether, under G. L. c. 258D, § 1 (B) (ii), Peterson is eligible to pursue a claim for compensation. Because we conclude that Peterson’s conviction was not reversed by the Appeals Court on “grounds which tend to establish” his innocence within the meaning of this statute, he is not eligible to seek compensation under it. Accordingly, we vacate the order denying the Commonwealth’s motion to dismiss and remand the case to the Superior Court, where judgment shall enter for the Commonwealth. Background and prior proceedings. We recite the uncontested facts. The charge underlying Peterson’s conviction stemmed from a traffic stop of the motor vehicle Peterson was driving. The officers stopped the vehicle in an area known for gang activity after observing the driver commit several traffic infractions. The officers approached the driver’s side of the vehicle and asked Peterson for his driver’s license and registration, both of which he promptly provided. Despite confirming that Peterson’s driver’s license and registration were valid, the officers ordered Peterson to step out of the vehicle. As Peterson did so, the officers noticed that a knife was clipped to his jeans. Peterson was then placed under arrest for carrying a dangerous weapon, G. L. c. 269, § 10 (b). Peterson moved to suppress the knife prior to trial, arguing that the exit order lacked constitutional justification. […]
Commonwealth v. Vazquez (Lawyers Weekly No. 10-192-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11695 COMMONWEALTH vs. ALBERTO VAZQUEZ. Essex. September 8, 2017. – November 29, 2017. Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ. Homicide. Constitutional Law, Assistance of counsel. Cellular Telephone. Evidence, Prior misconduct. Practice, Criminal, Capital case, Assistance of counsel, Argument by prosecutor, Instructions to jury. Intent. Indictment found and returned in the Superior Court Department on November 17, 2010. The case was tried before Richard E. Welch, III, J. Leslie W. O’Brien for the defendant. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth. BUDD, J. In the early morning hours of June 18, 2010, Julian Melendez was shot and killed during an exchange with an individual later identified as the defendant, Alberto Vazquez. The defendant was convicted of murder in the first degree on a theory of deliberate premeditation. On appeal, the defendant claims error on the part of defense counsel, the trial judge, and the prosecutor, requiring a new trial. Alternatively, he seeks a reduction in the verdict pursuant to G. L. c. 278, § 33E. We affirm the defendant’s conviction and decline to exercise our extraordinary power under G. L. c. 278, § 33E. Background. We summarize the facts as the jury could have found them, reserving certain details for discussion of specific issues. Just prior to 2 A.M. on June 18, 2010, in a Lawrence neighborhood, the defendant drove up to a group of people and began arguing with some of them. The victim approached the automobile and attempted to defuse the situation, saying, “It[‘s] me, JM, it’s me, your brother.” The defendant drove away, but returned approximately five minutes later and continued to argue with some of those present. The victim, who again approached the automobile and leaned into the driver’s side window, tried once more to calm down the defendant. Suddenly, the defendant reached out, shot the victim at close range, and drove away. When first responders arrived, the victim was unresponsive. He died at the hospital within twenty-four hours of the shooting. At trial, the Commonwealth did not provide evidence of motive; however, the prosecution’s theory was that the defendant deliberately premeditated the killing of the victim. It relied chiefly on the testimony of two cooperating witnesses: one testified to having witnessed the shooting and identified the […]
Worcester Regional Retirement Board v. Contributory Retirement Appeal Board, et al. (Lawyers Weekly No. 11-147-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 17-P-66 Appeals Court WORCESTER REGIONAL RETIREMENT BOARD vs. CONTRIBUTORY RETIREMENT APPEAL BOARD & others.[1] No. 17-P-66. Worcester. October 11, 2017. – November 29, 2017. Present: Milkey, Massing, & Ditkoff, JJ. Contributory Retirement Appeal Board. County, Retirement board. Municipal Corporations, Retirement board, Pensions. Public Employment, Retirement, Retirement benefits. Retirement. Pension. Civil action commenced in the Superior Court Department on September 15, 2015. The case was heard by Shannon Frison, J., on motions for judgment on the pleadings. Michael Sacco for the plaintiff. Thomas F. Gibson for Middlesex County Retirement Board. MASSING, J. The Worcester Regional Retirement Board (WRRB) appeals from a judgment of the Superior Court, which affirmed a decision of the Contributory Retirement Appeal Board (CRAB) requiring the WRRB to permit a former member to purchase nine additional months of creditable service.[2] At issue is whether the WRRB is responsible for not having enrolled the employee, Brian Pierce, as of the day he became eligible for membership, or whether Pierce had an affirmative obligation to ensure that he had been enrolled as of his start date. CRAB determined that the responsibility lay with the WRRB, not the employee; that the retirement system records should be corrected to reflect Pierce’s nine months of uncredited membership; and that Pierce should be permitted to buy back the time of which he had erroneously been deprived. Discerning no legal error or abuse of discretion on CRAB’s part, we affirm. Background. Pierce began permanent, full-time employment as a third-class lineman for the Princeton Municipal Light Department, which is a member unit of the Worcester Regional Retirement System (WRRS), on December 6, 1982. On October 24, 1983, Pierce completed a new entrant enrollment form “[i]n order that [he] may be properly enrolled” in the WRRS.[3] The WRRB stamped the form as received on November 18, 1983. The form correctly indicated that Pierce’s full-time permanent employment had begun on December 6, 1982. The WRRB enrolled Pierce as a member as of September 1, 1983, crediting him with service prior to its receipt of his enrollment form, but not for the first nine months of his employment starting on December 6, 1982. Pierce’s service with the town of Princeton ended on May 1, 1986, when he took a similar position with the Middleborough Light Department. […]
Categories: News Tags: 1114717, Appeal, Board, Contributory, Lawyers, regional, Retirement, Weekly, Worcester
Marchetti v. Atwood, et al. (Lawyers Weekly No. 09-041-17)
1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 17-00749 CARL MARCHETTI vs. JACK M. ATWOOD AND JACK M. ATWOOD, P.C. MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS Plaintiff Carl Marchetti contends that defendant, attorney Jack M. Atwood and his professional corporation, Jack M. Atwood, P.C. (collectively, “Atwood”), committed legal malpractice in connection with Atwood’s representation of Marchetti in a criminal case. As a result of the alleged malpractice, Marchetti claims that he served jail time for several offenses after he was found guilty at trial rather than receiving a sentence of home detention following a guilty plea. Marchetti thus brings claims for legal malpractice (Counts One and Two) and breach of contract (Counts Three and Four) against Atwood and his firm. In addition, Marchetti seeks relief pursuant to Chapter 93A against both defendants (Counts Five and Six). Before the Court is Atwood’s motion to dismiss under Mass. R. Civ. P. Rule 12(b)(6). In consideration of the parties’ helpful memoranda of law and illuminating oral arguments,1 and for the reasons that follow, Atwood’s motion to dismiss is ALLOWED. 1 The parties’ written and oral advocacy in this case was exemplary. 2 FACTS Because it is evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the Court will accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. See, e.g., Berish v. Bornstein, 437 Mass. 252, 267 (2002); Nader v. Citron, 372 Mass. 96, 98 (1977). Atwood submits public records to support his motion. The Court may properly consider these materials without converting the motion into one for summary judgment. See, e.g., Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550, 555 (2008) (“while the allegations of the complaint generally control in evaluating a motion under rule 12(b)(6), matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account. Properly considered public records include the records of other courts in related proceedings, of which the judge may take judicial notice in any event”) (citations, internal punctuation omitted). Marchetti was a pawn shop owner. On July 16, 2010, he was indicted in Commonwealth v. Marchetti, Barnstable Superior Court C.A. No. 1072-CR-00112 (the “Criminal Action”), on six counts of knowingly receiving stolen property in excess of two hundred and fifty dollars. Sometime in July 2010, Marchetti engaged Atwood to defend him in the Criminal Action. Marchetti agreed to pay Atwood a flat fee of $ 20,000 for his legal services. Atwood did not provide Marchetti a written engagement letter or other contract, and thereafter did not provide Marchetti […]
Commonwealth v. Khan (Lawyers Weekly No. 11-146-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1216 Appeals Court COMMONWEALTH vs. MOHAMMED T. KHAN.[1] No. 16-P-1216. Middlesex. September 19, 2017. – November 28, 2017. Present: Vuono, Blake, & Singh, JJ. Larceny. Practice, Criminal, Required finding, Instructions to jury, Assistance of counsel. Evidence, Joint venturer, Fingerprints. Indictments found and returned in the Superior Court Department on May 21, 2014. The cases were tried before Diane M. Kottmyer, J. David H. Erickson for the defendant. Nicole Nixon, Assistant District Attorney, for the Commonwealth. BLAKE, J. Following a jury trial in the Superior Court, the defendant, Mohammed T. Khan, was convicted of seven counts of larceny over $ 250 from a person older than the age of sixty, and was adjudged by the trial judge to be a common and notorious thief.[2] The defendant appeals claiming that the judge erred in (1) denying his motions for required findings of not guilty, (2) instructing the jury on joint venture liability rather than accessory after the fact, and (3) admitting fingerprint evidence. He also claims that his trial attorney was ineffective. We affirm. Background. In the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have found the following facts. The scam. In February, 2014, each of the four victims received telephone calls from individuals who claimed that the victim’s grandchild was in jail and needed money for bail. The caller directed the victims to send cash via FedEx packages to addresses in Lowell, Massachusetts. All of the calls originated from a Canadian area code and none of the callers had a foreign accent. Victim Johnson.[3] On February 12, 2014, Johnson, an eighty-six year old man living in Utah, received a telephone call from a person identifying himself as Johnson’s grandson, Corbin, claiming that he was in jail and needed help. Shortly thereafter, Johnson received another telephone call from a person identifying himself as Mr. Watson. Watson claimed that Corbin had been in a motor vehicle accident and that, during a search, police found drugs in the vehicle. Johnson was directed to send $ 7,500 dollars in cash for Corbin’s bail. Watson indicated he would arrange for pick-up of the cash and delivery through FedEx. Johnson then received a telephone call from “the shipping department” and was provided with […]
Pantazis v. Mack Trucks, Inc., et al. (Lawyers Weekly No. 11-145-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1497 Appeals Court ANN E. PANTAZIS, executrix,[1] vs. MACK TRUCKS, INC., & another.[2] No. 16-P-1497. Worcester. September 12, 2017. – November 27, 2017. Present: Milkey, Hanlon, & Shin, JJ. Negligence, Manufacturer, Duty to warn. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on April 11, 2012. The case against defendant Parker-Hannifin Corporation was heard by Raffi N. Yessayan, J., on a motion for summary judgment, and entry of judgment was ordered by Shannon Frison, J.; the case against defendant Mack Trucks, Inc., was heard by Daniel M. Wrenn, J., on a subsequent motion for summary judgment, and entry of judgment was ordered by him. Roger J. Brunelle for the plaintiff. William J. Dailey, III, for Mack Trucks, Inc. Richard L. Neumeier for Parker-Hannifin Corporation. MILKEY, J. Mark Fidrych owned a dump truck that he used to haul soil. On the morning of April 13, 2009, Fidrych was seen at his farm working on the truck. Later that day, he was found dead underneath it, with his clothing caught up in a spinning universal joint (U-joint) that was part of the mechanical system used to tilt the “dump body” of the truck. The medical examiner identified the cause of death as accidental asphyxiation. In her capacity as executrix of Fidrych’s estate, his widow, Ann Pantazis, filed a wrongful death action in the Superior Court. She sued, among others, Mack Trucks, Inc. (Mack Trucks), which manufactured the original, stripped-down version of the truck, and Parker-Hannifin Corporation (Parker-Hannifin), which had acquired the assets of Dana Corporation (Dana).[3] Dana manufactured a piece of equipment known as a “power take-off” (PTO), which was another part of the system used to tilt the dump body of Fidrych’s truck. In two separate summary judgment rulings, different Superior Court judges ruled in favor of each of these defendants.[4] We affirm. Background.[5] In 1987, Fidrych purchased the truck from Winnipesaukee Truck P&T, an independent Mack Trucks dealer, which had purchased it from Mack Trucks the previous year.[6] At the time of Fidrych’s purchase, the truck was what is known as an “incomplete vehicle.” That meant that the truck had a chassis, cab, and engine, but it lacked essential components (and associated equipment) necessary to carry out the truck’s ultimate intended function. Through […]
Ewing v. Davenport-Mello, et al. (Lawyers Weekly No. 10-190-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12250 SHANNON EWING vs. PATRICIA DAVENPORT-MELLO & others.[1] November 22, 2017. Moot Question. Practice, Civil, Moot case. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Shannon Ewing, appeals from a judgment of a single justice of this court dismissing as moot his petition pursuant to G. L. c. 211, § 3. We affirm. The petitioner, who is confined at the Old Colony Correctional Center, filed a complaint in the Superior Court claiming that the defendants violated his civil rights by failing to provide him with a diabetic snack. The respondents filed a motion to dismiss, which the petitioner opposed. A judge allowed the motion, and the petitioner filed a timely notice of appeal on August 25, 2016. He then filed his G. L. c. 211, § 3, petition in the county court on October 6, 2016, claiming that the trial court clerk’s office had not “acted on” his notice of appeal. He asked a single justice of this court to “[o]rder the . . . Superior Court to file [his] [n]otice of [a]ppeal, or in the alternative, reinstate the [c]ivil [c]omplaint. ” Because the petitioner’s notice of appeal had already been docketed in the trial court, however, and the record was in the process of being assembled, the single justice dismissed the G. L. c. 211, § 3, as moot. In his appeal to this court, the petitioner argues, among other things, that the case “did not become moot” because the trial court failed to “honor [its] obligation to [p]rocess” his notice of appeal in a timely fashion. Since the single justice’s decision dismissing the petition as moot, the trial court record has been assembled and the petitioner’s appeal has been entered in the Appeals Court. The appeal has been fully briefed in that court. The petitioner has, in other words, received the relief that he sought in his G. L. c. 211, § 3, petition — that is, the docketing of his notice of appeal and assembly of the trial court record. To the extent that he now raises additional issues in his appeal to this court, those issues were not raised before the single justice and we need not consider them. See, e.g., Carvalho v. Commonwealth, 460 Mass. 1014 (2011), and cases cited. The single justice did not err in dismissing the G. L. c. 211, § 3, petition as moot.[2] Judgment […]
Commonwealth v. Morin (Lawyers Weekly No. 10-188-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11591 COMMONWEALTH vs. AARON MORIN. Bristol. May 5, 2017. – November 21, 2017. Present: Gants, C.J., Lenk, Hines, & Gaziano, JJ.[1] Homicide. Felony-Murder Rule. Robbery. Practice, Criminal, Required finding, New trial, Assistance of counsel, Instructions to jury, Warrant, Capital case. Constitutional Law, Assistance of counsel, Search and seizure, Probable cause. Due Process of Law, Assistance of counsel. Search and Seizure, Warrant, Probable cause. Probable Cause. Cellular Telephone. Indictment found and returned in the Superior Court Department on February 9, 2010. The case tried before Robert J. Kane, J., and a motion for a new trial, filed on August 4, 2014, was heard by him. Robert F. Shaw, Jr., for the defendant. Mary E. O’Neil, Assistant District Attorney, for the Commonwealth. Chauncey B. Wood, K. Neil Austin, Christopher E. Hart, & Kelly S. Caiazzo, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. GAZIANO, J. A Superior Court jury found the defendant guilty of murder in the first degree on the theory of felony-murder, with unarmed robbery as the predicate felony, in the death of Chad Fleming on November 3, 2009. At trial, the Commonwealth’s theory was that the defendant, along with his codefendant, Nelson Melo, and two unknown accomplices, robbed the victim of drugs and money, and that the killing occurred in connection with the robbery.[2] The defendant argues in this appeal, as he did in his motion for a new trial, that trial counsel’s failure to file a motion to suppress the search of the defendant’s cellular telephone constituted ineffective assistance of counsel. In addition, the defendant raises the following claims of error at trial: (1) the evidence was insufficient for a jury to find that the victim’s death was connected to the robbery or that the unarmed robbery was committed with conscious disregard for the risk to human life; (2) the instruction on felony-murder was erroneous; and (3) the judge abused his discretion in excluding testimony concerning a statement made by the victim. Finally, the defendant contends that this court should abolish the common-law felony-murder rule. We conclude that the evidence was sufficient to support his conviction, but that the defendant is entitled to a new trial because his trial counsel was ineffective for failing to have filed a motion to suppress the search […]
Commonwealth v. Facella (Lawyers Weekly No. 10-189-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10339 COMMONWEALTH vs. JOSEPH FACELLA. Essex. May 5, 2017. – November 21, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Cypher, JJ.[1] Homicide. Evidence, Rebuttal, Prior misconduct, Hearsay, Expert opinion. Practice, Criminal, Instructions to jury, New trial, Assistance of counsel, Hearsay, Argument by counsel, Capital case. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Indictment found and returned in the Superior Court Department on May 15, 2002. The case was tried before David A. Lowy, J. Brian J. Kelly for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth. CYPHER, J. A jury convicted the defendant, Joseph Facella, of murder in the first degree on a theory of extreme atrocity and cruelty for beating his girl friend, Annette Soares, to death in 2002.[2] At trial, his defense was that an antiviral drug he was taking at the time of the killing rendered him unable to appreciate the wrongfulness of his conduct or to conform his behavior to the requirements of the law. To rebut this defense, the Commonwealth presented evidence that the defendant, before ever taking the drug, had beaten and threatened to kill two other women with whom he was romantically involved between 1978 and 1989. The defendant makes four arguments on appeal: (1) the trial judge erred by admitting evidence in the Commonwealth’s case-in-chief of the defendant’s previous incarceration; (2) the trial judge erred by giving untimely limiting instructions regarding prior bad act evidence admitted in the Commonwealth’s case-in-chief;[3] (3) the trial judge erred by admitting evidence of the defendant’s prior bad acts in the Commonwealth’s rebuttal case; and (4) this court should exercise its power under G. L. c. 278, § 33E (§ 33E), to reduce the verdict or order a new trial. Following oral argument, the defendant also filed a motion for a new trial claiming ineffective assistance of counsel. After careful consideration of the defendant’s arguments on appeal and in his motion for a new trial, we affirm the judgment of conviction, deny the defendant’s motion for a new trial, and decline to exercise our power under § 33E. Background. We begin by discussing the facts presented in the Commonwealth’s case-in-chief as the jury could have found them. We then discuss the defense case. […]
Commonwealth v. J.A., a juvenile (Lawyers Weekly No. 10-187-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12277 COMMONWEALTH vs. J.A., a juvenile. Suffolk. September 7, 2017. – November 20, 2017. Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ. Dog. Youthful Offender Act. Statute, Construction. Words, “Serious bodily harm.” Indictments found and returned in the Suffolk County Division of the Juvenile Court Department on November 19, 2015. A motion to dismiss was heard by Peter M. Coyne, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Elianna J. Nuzum, Special Assistant District Attorney, for the Commonwealth. Benjamin L. Falkner for the juvenile. The following submitted briefs for amici curiae: Michael W. Morrissey, District Attorney for the Norfolk District, & Tracey A. Cusick & Stephanie Martin Glennon, Assistant District Attorneys, for District Attorney for the Norfolk District. Jeffrey J. Pokorak, Kimberly Cariani, & Jaclyn Collier for Juvenile Law Center of Suffolk University Law School & another. Virginia F. Coleman for Animal Legal Defense Fund. BUDD, J. The juvenile is alleged to have brutally attacked his friend’s dog. The Commonwealth elected to proceed against the juvenile pursuant to the youthful offender statute, G. L. c. 119, § 54, on the ground that he caused serious bodily harm to the dog.[1] The juvenile argues that the youthful offender indictments are not supported by probable cause because the phrase “serious bodily harm” in the statute contemplates harm to human beings, not animals.[2] We agree and therefore affirm the dismissal below. We note, however, that the Commonwealth still may take action against the juvenile by seeking a complaint for delinquency against him.[3] Background. The following facts are taken from the testimony presented to the grand jury. In August, 2015, when the juvenile was fourteen years old, he tortured a friend’s dog by shoving a soap dispenser pump into the dog’s vagina, resulting in serious internal injuries to the dog.[4] A grand jury returned two youthful offender indictments against the juvenile, charging him with cruelty to animals and bestiality. See G. L. c. 272, §§ 34, 77. A Juvenile Court judge allowed the juvenile’s motion to dismiss, concluding that the phrase “serious bodily harm” in the youthful offender statute refers only to human victims. The Commonwealth appealed, and we transferred the case to this court on our own motion. Discussion. A juvenile may be tried […]