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COMMONWEALTH’S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

COMMONWEALTH’S SUPPLEMENTAL OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

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Published by Greg Saulmon
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Published by: Greg Saulmon on Mar 01, 2011
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05/12/2014

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COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, ss. SUPERIOR COURTNo. HSCR2010-048 COMMONWEALTH v. AUSTIN RENAUD COMMONWEALTH’S SUPPLEMENTAL OPPOSITION TODEFENDANT’S MOTION TO DISMISS
 On February 22, 2011, at a hearing on the defendant’s motion to dismiss pursuant toCommonwealth v. McCarthy, 385 Mass. 160 (1982), the Court raised the question of whether there was evidence presented to the grand jury that the victim was less than 16 years of age atthe time of the offense. After considering the parties’ preliminary responses to this question, theCourt granted the parties additional time to address the issue. For the reasons that follow, theCommonwealth contends that the grand jury did hear sufficient evidence from which they couldreasonably conclude that the victim was less than 16 at the relevant time.On a motion to dismiss an indictment, the question is whether “the grand jury [heard] sufficientevidence to establish the identity of the accused and probable cause to arrest him”Commonwealth v. McCarthy, 385 Mass. at 163-164, a standard that “is considerably lessexacting than a requirement of sufficient evidence to warrant a guilty finding.” Commonwealthv. O’Dell, 392 Mass. 445, 450 (1984). When applying this standard, a Court must view theevidence before the grand jury in the light most favorable to the Commonwealth. SeeCommonwealth v. Levesque, 436 Mass. 443, 444 (2002). The Court should also consider thatin executing their function, grand jurors are entitled to rely on their common knowledge, see id.,at 454, and to draw reasonable inferences. See Commonwealth v. Roman, 414 Mass. 642,647-648 (1993).At page 102 of the Grand Jury minutes, the testifying detective recounted a statement that thevictim’s mother had provided to law enforcement officials shortly after her daughter Phoebe’sdeath [G.J., pp. 102, 115-116]. According to the mother, “In July 2009 I moved to a residence inSouth Hadley… with my two daughters, Phoebe (age 15) and XXXX (age 11).” TheCommonwealth acknowledges that this is the only direct reference to the victim’s age in theentire Grand Jury presentation. Although this reference appears in a sentence reciting anearlier event (i.e., the family’s move to South Hadley), a fair and reasonable interpretation is thatthis reference to the victim’s age correlates with the time at which the mother gave her 
 
statement, rather than with the time the family moved to South Hadley. This is so for severalreasons.First, the statement contains the present-tense form of the word “age.” If the references wereintended to document the girls’ ages at the time of the move, that portion of the sentence wouldmore properly have read: “…with my two daughters, Phoebe (then aged 15) and XXXX (thenaged 11).”In addition, the daughters’ ages appear in parentheses. “Parentheses, or marks of parenthesis,are used to set off a word, phrase, or sentence which is inserted by way of comment,explanation, translation, etc., in a sentence but which is structurally independent of it.”Lumbermens Mut. Casualty Co. v. Younger, 158 So. 2d 341, 342 (La. App. 1963), quotingWebster's New Collegiate Dictionary 1151 (1959 ed.). This structural independence isespecially apparent where, as here, the parentheticals are used in conjunction with the initialmentioning – and identification – of the girls. Such parenthetical information provides“supplementary, explanatory, or interpretative” information about the girls themselves, not theother portions of the sentence. Id. at 342 n.1, quoting The Macmillan Handbook of English 313(4th ed., 1960) (“Parentheses are used to enclose material that is supplementary, explanatory,or interpretative”).Finally, the evidence before the grand jury established that the victim was a high schoolfreshman during the 2009-2010 academic year. [See, e.g., Grand Jury Exhibit 1]. Grand jurorsare entitled to rely on their common knowledge, see Levesque, 436 Mass. at 454, and as theAppeals Court has observed, it is “a matter of common knowledge that
most 
students completehigh school at the age of seventeen or eighteen.” Johnson v. Brockton, 8 Mass. App. Ct. 80, 83(1979) (citation excised) (emphasis added). Deductively, it is therefore a matter of commonknowledge that most students complete their freshman year of high school at age fourteen or fifteen. Cf. Benefield v. Bd. of Trs. of the Univ. of Ala. at Birmingham, 214 F. Supp. 2d 1212,1219 (N.D. Ala. 2002) (“The court takes judicial notice that most college freshmen are 18 yearsold, and quite often 17 years old.”). Consequently, the grand jurors could have readily andreasonably concluded that the reference to the victim being “age 15” related to her age at thetime of the mother’s statement, not her age in July 2009. To the extent the reference wassomewhat ambiguous or capable of varying interpretations, any ambiguity should be resolved inthe light most favorable to the Commonwealth. See Levesque, 436 Mass. at 444.Although it would have been preferable for the grand jury to have learned the victim’s date of birth (which would have conclusively proven that she was fifteen at the time in question, andthat, due to her untimely death, she never attained the age of sixteen), the evidence before thegrand jury, and the reasonable inferences that could be drawn from it, was sufficient to establishthe age element of the crime of statutory rape.For these reasons, the Commonwealth respectfully requests that this Honorable Court deny thedefendant’s motion to dismiss. Respectfully submittedfor the Commonwealth, DAVID E. SULLIVANNORTHWESTERN DISTRICT ATTORNEY

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