COMMONWEALTH vs. A JUVENILE.

LYNCH, J. The Commonwealth appeals from an order of a judge in the Juvenile Court allowing the juvenile's motion to dismiss an indictment charging murder in the second degree. [Note 1] A grand jury had returned the indictment which was

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filed with the Superior Court clerk, who then ordered the indictment filed in the Juvenile Court. [Note 2] The judge in the Juvenile Court made findings of fact and rulings of law, and dismissed the indictment. The Commonwealth appealed pursuant to Mass. R. Crim. P. 15 (a) (1), 378 Mass. 882 (1979). We transferred the appeal here on our own motion and we now affirm. [Note 3] At issue is whether an amendment to G. L. c. 119, Section 61 (1990 ed.), adopted after the date of the offenses in question, is applicable to this juvenile. We determine it is not.

1. Statutory background. We summarize the statutory scheme in existence at the time of the juvenile's alleged offenses on December 27, 1991. General Laws c. 119, Sections 52 et seq. (1990 ed.), deals with children between the ages of seven and seventeen years who commit offenses against the laws of the Commonwealth. A juvenile could be charged with delinquency by reason of murder only by a complaint filed in the Juvenile Court. Under G. L. c. 119, Section 61 (1990 ed.), a transfer hearing, consisting of two parts, then would be held to determine whether such juvenile should be transferred for trial as an adult. In the first part, the judge would determine whether probable cause existed to believe that the juvenile committed the offense or violation charged. In the second part, if probable cause was found, the judge then would determine whether the juvenile presented a danger to the public and whether the juvenile was amenable to rehabilitation within the juvenile justice system. After a finding of probable cause against a juvenile charged with murder in the first or second degree, the statute creates a rebuttable presumption that such juvenile was a significant danger to the public and was not amenable to rehabilitation. If the presumption is not

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rebutted, the delinquency complaint would be dismissed and a criminal complaint would issue. The juvenile then would be tried as an adult.

2. The amendment. The Legislature amended G. L. c. 119, Section 61, by St. 1991, c. 488, Sections 2-6, effective December 31, 1991, four days after the juvenile's alleged offense. [Note 4] Under Section 3, the Commonwealth, in cases of murder in the first and second degree, can elect to proceed by filing a complaint or by obtaining an indictment. If an indictment is obtained, no probable cause hearing is held.

3. Ex post facto application. The judge determined that the amendment was an ex post facto law as applied in these circumstances. [Note 5] We agree.

In Commonwealth v. Kelley, 411 Mass. 212, 214 (1991), we recently restated Commonwealth v. Bargeron, 402 Mass. 589, 590 (1988):

"`The classical exposition of an ex post facto law is found in the primordial case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798): "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence,in order to convict the offender."' (Emphasis in original.)"

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At the time of the juvenile's arrest, the Commonwealth could only proceed against a juvenile by a probable cause hearing. The minimum quantum of evidence required to find probable cause is that by which "the judge `should view the proceeding as if it were a trial, and should find probable cause only if the Commonwealth has presented sufficient evidence to send the case to a jury.'" Commonwealth v. Matthews, 406 Mass. 380, 388 (1990), quoting Commonwealth v. Ortiz, 393 Mass. 523, 534 n.13 (1984). In contrast, the minimum quantum of evidence required to present to the grand jury for indictment is sufficient evidence to establish the identity of the accused and probable cause to arrest him. Commonwealth v. O'Dell, 392 Mass. 445, 450-451 (1984). "[A] requirement of sufficient evidence to establish the identity of the accused and probable cause to arrest him is considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding." Id. at 451.

Thus, the amendment eases the burden on the Commonwealth because the level of proof necessary for obtaining a grand jury indictment is less than that required at a probable cause hearing. Therefore "the two critical elements necessary in an ex post facto law are met, its application being both retrospective and more burdensome to the defendant." Commonwealth v. Kelley, 411 Mass. 212, 215 (1991).

The Commonwealth argues that the United States Supreme Court narrowed the application of ex post facto principles in Collins v. Youngblood, 110 S. Ct. 2715 (1990). [Note 6] In that case, the Supreme Court retreated from prior decisions which had included, within the concept of ex post facto laws, statutory changes which altered the situation of a defendant to his disadvantage. As a result, that Court has limited the application of the Federal ex post facto prohibition to the original Calder categories. Calder v. Bull, supra. The Court

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stated that "the constitutional prohibition is addressed to laws, `whatever their form,' which make innocent acts criminal, alter the nature of the offense, or increase the punishment. . . . But the prohibition which may not be evaded is the one defined by the Calder categories." Collins v. Youngblood, supra at 2721. Included among the Calder categories is: "4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender" (emphasis in original). Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).

Since the legislative change gives the Commonwealth an option that reduces its evidentiary burden, it falls within the Calder proscription if that reduced evidentiary burden also can be said to be used to convict the offender. [Note 7] If the Commonwealth lacked sufficient evidence to support a probable cause finding, in the absence of the option afforded by the amendment, the indictments would be dismissed. With the ability to seek indictments in such a situation the Commonwealth has the possibility of keeping the case alive in the hope that, by the time of trial, the evidence would be sufficient to obtain convictions. It would appear to us that such a fundamental change in procedure would continue to fail under Federal ex post facto scrutiny. Notwithstanding any Federal determination, however, we have no hesitancy in concluding that the ex post facto provisions of art. 24 of the Declaration of Rights of the Massachusetts Constitution prohibit the application of so fundamental a statutory change to this juvenile.The foregoing also disposes of the Commonwealth's argument that the probable cause portion of the juvenile transfer hearing is not a substantive right because the new direct indictment provision is only a procedural change which may be

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retroactively applied and that the Legislature may properly affect changes in the mechanics and availability of this portion of the transfer proceedings.

Furthermore, as the judge ruled, the juvenile "did have a substantive right to the Probable Cause [Part A] hearing," that "[o]n December 27, 1991, the Commonwealth in this case in Juvenile Court had no alternatives from which to elect, and [the juvenile] had the absolute right to require that the Commonwealth proceed against him first with a probable cause hearing," and that the "defendant [] had an absolute right on December 27, 1991, the date of the alleged offense, to a determination of probable cause, as measured by a `directed verdict' standard, after an evidentiary hearing before a judge. On the date of the alleged offense, there was no other method that the Commonwealth was authorized to `elect'. It was required to go forward with a probable cause hearing" (emphasis in original).

The judgment dismissing the indictment is affirmed. The case is remanded to the Juvenile Court for the resolution of the charges against the juvenile pending there.

So ordered.