COMMONWEALTH vs. EDWARD S. O'BRIEN

LYNCH, J. The defendant in this case is charged with murder. G. L. c. 265, s. 1 (1994 ed.). At the time of the homicide,

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the defendant was age fifteen years and five months. [Note 1] Pursuant to G. L. c. 119, s. 61 (1994 ed.), [Note 2] the Commonwealth moved to transfer the defendant to the Superior Court for trial as an adult. A Middlesex County grand jury then returned an indictment, charging the defendant with the murder of Janet Downing. [Note 3] Because the Commonwealth chose to indict the defendant, no probable cause (Part A hearing) occurred but from January 9 through January 22, 1996, a transfer hearing (Part B hearing) was held. Following the transfer hearing, the judge denied the Commonwealth's motion to transfer the defendant to the Superior Court for trial, and the Commonwealth appealed. We granted the Commonwealth's application for direct appellate review and now conclude that the judge applied an erroneous standard in determining whether the defendant was amenable to rehabilitation, improperly relied on evidence not part of the record, and improperly limited the admission of expert testimony.

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Accordingly, we reverse the order denying transfer and remand the case for further proceedings. [Note 4]

We summarize the evidence presented to the grand jury. On the evening of Sunday, July 23, 1995, the body of Janet Downing was found bleeding in her Somerville home. The victim had suffered sixty-six stab wounds and thirty-one slash wounds. She was taken to the hospital, where she was pronounced dead. Blood was found in various locations throughout the house. [Note 5] The defendant's bloody fingerprint and bloody thumbprint were recovered from inside the house. In addition, the hilt of a knife, similar to a loose hilt on a knife the defendant had shown a clerk at a convenience store the night before, was found in the victim's house.

Earlier that evening, a group of friends including the defendant had been visiting with the victim's son at the Downing home. The defendant asked the victim's son what was wrong with the lock on a door which opened from the kitchen to the deck. The victim's son explained that the lock on the doorknob was broken, but showed the defendant how to operate the deadbolt lock. The group then left the Downing home for another location; the defendant, however, declined to accompany them and instead walked toward his own home. Later that same evening, a friend of the defendant saw him acting strangely, close to the Downing house. Around the time that the victim's son discovered the victim, the defendant, sweating profusely and bleeding from his hand and leg, entered a convenience store where he worked and told the store clerk that he had been mugged. Blood taken from the

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defendant's shin that night matched the blood type of the victim. Later, when the defendant took the police to the location where he claims to have been mugged, the police found no signs of a scuffle, weapon, or blood.

The grand jury indicted the defendant for the murder of Janet Downing. At the transfer hearing, Dr. Richard Barnum, a court-appointed psychiatrist, testified that the defendant "would present elevated risk for dangerous behavior and that elevation would be significant" if the defendant was not in custody. Dr. Barnum further testified, however, that the defendant had a "good prognosis" for rehabilitation.

Carlo Morrissey, the director of client services of the Department of Youth Services (DYS) was called by the court. Morrissey testified regarding current and future treatment services for juveniles adjudicated delinquent by reason of murder. The defendant also presented the testimony of three witnesses associated with DYS. Finally, the defendant presented twelve witnesses who testified that the defendant was of general good character.

The Commonwealth introduced evidence of the nature, circumstances, and seriousness of the crime. The Commonwealth also presented evidence tending to show that the defendant had an obsessive sexual interest in the victim, which he demonstrated by preoccupation with her activities and by peeking in her windows to watch her undress. Finally, the Commonwealth offered the expert testimony of Dr. Robert Kinscherff, a forensic psychologist, and Dr. Donald Condie, a psychiatrist experienced in dealing with children and adolescents. Doctors Condie and Kinscherff testified that the nature of the crime, multiple stab wounds including a number of wounds below her breasts, but no stab wounds to the breasts, and cuts on the victim's brassiere, indicated both overkill and a sexually sadistic homicide. There was testimony that, as a group, juveniles who commit sexually sadistic homicides are less likely to be treated effectively and that sadistic patterns of behavior were not successfully treated by DYS. After hearing all the evidence, the judge concluded that the defendant had rebutted the presumption that he was not amenable to rehabilitation, and declined to transfer the defendant to the Superior Court for trial as an adult.

The Commonwealth argues that the judge employed an incorrect legal standard in making the transfer decision. The

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Commonwealth further contends that the judge conducted improper ex parse hearings with both defense counsel and a court-appointed expert, impermissible interfered with the defendant's evaluation, and made erroneous evidentiary rulings which deprived the Commonwealth of the opportunity to elicit expert testimony.

Discussion. A transfer hearing is held to determine whether "the child presents a danger to the public, and whether the child is amenable to rehabilitation within the juvenile justice system." G. L. c. 119, s. 61. There is a rebuttable presumption that a juvenile charged with murder is dangerous to the public and not amenable to rehabilitation. Commonwealth v. Clifford C., 415 Mass. 38, 42 (1993). Because of the statutory presumption, in cases involving murder or other violent crime, "the juvenile [has] the initial burden of producing evidence showing that he does not present a significant danger to the public and is amenable to rehabilitation within the juvenile justice system." Commonwealth v. Wayne W., 414 Mass. 218, 222 (1993). If the juvenile meets this initial burden, the Commonwealth must show by a preponderance of the evidence that the juvenile presents a danger to the public and is not amenable to rehabilitation. See Commonwealth v. Clifford C., supra; Commonwealth v. Wayne W., supra. "[T]he Legislature clearly has indicated . . . that transfer should occur more readily in cases in which a juvenile is charged with murder or another crime involving violence to a person." Commonwealth v. Clifford C., supra at 42.

A judge has wide discretion in determining whether a juvenile should remain within the juvenile system or be tried as an adult. See id. at 42-43; Commonwealth v. DiBenedetto, 414 Mass. 37, 48 (1992); Commonwealth v. Matthews, 406 Mass. 380, 383 (1990); A Juvenile v. Commonwealth, 370 Mass. 272, 282 (1976). The judge must make written findings regarding the juvenile's dangerousness and amenability to rehabilitation. "These two written findings must be supported by subsidiary findings which should be derived from consideration of . . . statutorily delineated factors." [Note 6] Commonwealth v. Costello, 392 Mass. 393, 396 (1984). There is no de nova review at the

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appellate level. Rather, we must determine whether there has been a "material failing in the prescribed steps leading to the issuance of the order of transfer." Commonwealth v. Matthews, supra at 384. Absent an abuse of discretion, we will not disturb the judge's findings. Commonwealth v. DiBenedetto, supra.

1. The standard. We agree with the Commonwealth that the judge applied an erroneous standard in making his transfer decision. General Laws c. 119, s. 61, required the judge to decide whether a juvenile "presents a danger to the public, and whether the child is amenable to rehabilitation" (emphasis added). In the portion of his order entitled "Findings," however, the judge stated that "[t]he credible testimony regarding the clinical, social, and legal factors coupled with security systems now in place to deal with children who are found Delinquent of Murder leads me to conclude that the presumption flowing from the indictment that the defendant is not Amenable to Treatment has been rebutted, and that this defendant can be treated within the Juvenile Justice System" (emphasis added). [Note 7]

Treatment is not the same as rehabilitation. It is fundamental that "[w]here the language of a statute is plain, there is no room for speculation as to its meaning." Massachusetts Bay Transp. Auth. v. Massachusetts BaN Transp. Auth. Retirement Bd., 397 Mass. 734, 738 (1986). Moreover, our cases have made clear the distinction between rehabilitation and treatment, holding that, while a juvenile can be treated within the juvenile justice system, transfer is still appropriate if the juvenile cannot be rehabilitated within the time that the juvenile can be kept within the juvenile justice system. See Commonwealth v. Matthews, supra at 387 (transfer statute only

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requires judge "to focus on the minor's potential for successful treatment before the age of majority within existing juvenile facilities"); A Juvenile v. Commonwealth, supra ("there must . . . be a finding that the juvenile cannot be rehabilitated within the present juvenile structure"). If convicted of murder, the defendant would be confined for a minimum of from fifteen to twenty years. G. L. c. 119, s. 72 (1994 ed.). [Note 8] The defendant, however, could only be held within the juvenile system until his twenty-first birthday and the judge in his findings recognized that "[a]s a practical matter the only definable treatment which would be available to the juvenile would be at the Department of Youth Services." [Note 9] During the course of the transfer hearing the judge, the experts, and the attorneys used the terms "treatment" and "rehabilitation" without differentiation. [Note 10] That does not relieve the judge of the obligation to indicate clearly in his findings that he found that the defendant could be rehabilitated as opposed to merely treated, and that such rehabilitation would occur during the limited time that treatment was available to him.

2. The judge's findings. In the portion of his order titled "Considerations" the judge stated that "[i]t is essential in this case to be as convinced as is humanly possible that the defendant is not suffering from a mental illness or defect. Dr. Barnum after exhaustive evaluation concludes that he is not so afflicted." The judge regarded this conclusion as paramount in his determination that the defendant could be rehabili-

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tated. [Note 11] Apparently relying on testimony he had heard at a prior bail hearing, [Note 12] the judge then stated that "[i]t should also be noted that Dr. Paul A. Spiers, Ph.D . . . who tested the defendant also found no indication of mental illness or defect." As the Commonwealth argues, this finding was flawed because the judge erroneously relied on the opinion of Dr. Spiers that was never in evidence.

A judge's reliance on information that is not part of the record implicates fundamental fairness concerns. See White v. White, 40 Mass. App. Ct. 132, 141-142 (1996) (substantial error where probate judge allowed adult witness to testify in private where such evidence clearly influenced decision). Thus, "tad judge may not rely on his private knowledge of particular facts that are not matters of which he can take judicial notice." Furtado v. Furtado, 380 Mass. 137, 140 n.1 (1980). A judge may not take judicial notice of facts or evi-

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dence brought out at a prior hearing that are not also admitted in evidence at the current hearing. Howe v. Prokop, 21 Mass. App. Ct. 919 (1985). See Nantucket v. Beinecke, 379 Mass. 345, 353 (1979) (improper use of judicial notice tainted ultimate conclusion reached by judge and cannot stand); Andrews, petitioner, 368 Mass. 468, 477 (1975). "Where the judge is the trier of fact, he must be most scrupulous both to avoid losing his impartiality and to maintain his unfamiliarity with disputed matters which may come before him and with extraneous matters which should not be known by him." Furtado v. Furtudo, supra at 151-152. While it is true that the judge also credited Dr. Barnum's conclusion that the defendant did not suffer from a mental disease or defect, [Note 13] the presence or absence of mental disease was obviously a factor that weighed heavily on the judge's conclusion that the defendant was amenable to rehabilitation within the juvenile justice system. [Note 14] The judge should not have gone outside the record to bolster his conclusion on a factor that he regarded as of paramount importance. Although we might not reverse on this ground alone, it is a procedural misstep that we rely on in reaching the conclusion that there must be further proceedings in this matter.

The judge's findings are also insufficient in regard to the burden of production and persuasion applicable to transfer hearings. The judge, in the portion of his order entitled "Findings," stated that he concluded that "the presumption flowing from the indictment that the defendant is not Amenable to Treatment has been rebutted, and that this defendant can be treated within the Juvenile Justice System." It is true that, once the defendant has met his burden of production in regard to the critical factors, the statutory presumption has been

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rebutted, and has no remaining evidentiary force. [Note 15] Commonwealth v. Wayne W., 414 Mass. 218, 222 n.5 (1993). That the defendant has rebutted the presumption, however, does not end the inquiry. The Commonwealth retains the burden of persuasion and still has the opportunity to show by a preponderance of the evidence that the defendant is dangerous and not amenable to rehabilitation. See Commonwealth v. Clifford C., 415 Mass. 38, 42 (1993); Commonwealth v. Wayne W., supra at 222. [Note 16] While the defendant argues that, because the judge found that the defendant rebutted the presumption, he must have "gone on to establish that the juvenile was amenable to rehabilitation," it does not follow that the Commonwealth failed to meet its burden of persuasion simply because the defendant rebutted the presumption of nonamenability which flowed from the statute. On such a significant issue the judge's finding should be clear. The judge may have thought that his duty to weigh the evidence ended when the defendant rebutted the statutory presumption. Thus, the judge's failure to consider whether the Commonwealth met its burden of persuasion after the defendant rebutted the presumption of nonamenability to rehabilitation constitutes a "material failing in the prescribed steps leading to the issuance of the order of transfer." Commonwealth v. Matthews, 406 Mass. 380, 384 (1990).

3. The Barnum addendum. The Commonwealth also argues that the judge erroneously excluded an addendum Dr. Barnum filed to supplement his original report. Dr. Barnum's original report of December 20, 1995, became an exhibit during his direct testimony at the transfer hearing. The Commonwealth then conveyed new information to Dr. Barnum

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during a meeting on January 5, 1996. [Note 17] In light of this new information, Dr. Barnum generated a six-page addendum to his original report. The Commonwealth sought to introduce the addendum in evidence on several occasions. The judge declined to accept this addendum as an exhibit and refused to permit cross-examination of Dr. Barnum on the contents of the addendum on the grounds that the additional information received by Dr. Barnum was "speculative, if not hypothetical" and that there was "no direct testimony in evidence" to support the additional information. [Note 18] This was error. There was testimony by several witnesses regarding most, if not all,

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of the incidents that were the basis for the addendum. [Note 19] Moreover, "an expert [may] base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion. [This] . . . eliminate[s] the necessity of producing exhibits and witnesses whose sole function is to construct a proper foundation for the expert's opinion." Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986).

The addendum clearly affected the strength of Dr. Barnum's opinion on which the judge relied. While the defendant argues that the addendum did not change Dr. Barnum's ultimate opinion, in his addendum, Dr. Barnum stated that, "if true, these reports suggest the presence of greater deviance in [the defendant's] emotional functioning than was apparent from the information on which my original report was based." Furthermore, the addendum related to many factors that the statute required be given specific consideration. The Commonwealth was entitled to explore any potential weaknesses in the original report by introducing the addendum and examining Dr. Barnum regarding its contents. The addendum should have been admitted and cross-examination based on it should have been permitted. [Note 20]

4. Testimony of McCrary. The Commonwealth also argues

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that it was error for the judge to exclude the testimony of former Federal Bureau of Investigation special agent Gregg McCrary, an expert in criminal investigative analysis, who had reviewed all of the evidence about the circumstances of the crime. The Commonwealth argued that his testimony was relevant because Dr. Barnum testified that one of the most important factors in assessing future dangerousness and the extent of the defendant's underlying pathology is the nature of the crime itself and the extent of the defendant's involvement. The judge, while not addressing McCrary's qualifications, sustained the objection to McCrary's testimony on the ground that it was not the appropriate forum to hear the testimony.

Ordinarily a judge has broad discretion with respect to the admission of expert testimony and will be reversed only in cases of abuse of discretion or error of law. See Commonwealth v. Pikul, 400 Mass. 550, 553 (1987); Commonwealth v. Devlin, 365 Mass. 149, 152 (1974). In a transfer hearing, however, the admission of evidence is guided by principles of fundamental fairness. Commonwealth v. Watson, 388 Mass. 536, 540 (1983). In view of Dr. Barnum's opinion, on which the judge relied, McCrary's testimony was relevant to the defendant's dangerousness and amenability to rehabilitation in the juvenile justice system. Dr. Barnum testified that the nature of the defendant's involvement in the offense is an important factor in determining the extent of his pathology and amenability to rehabilitation. He placed importance on the defendant's motivation and state of mind in assessing the likelihood of rehabilitation, but he could not obtain this information from the defendant. McCrary's testimony was intended to fill this gap. It was offered to show, inter alia, the planning, deliberation, and aggressiveness that was involved in the crime. It was also offered to show the sexual nature of the crime. For example, McCrary's testimony would support the inference that the victim's brassiere was removed or dislodged before the injuries were inflicted; the brassiere itself was stabbed while dislodged and then replaced after the attack.

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In other circumstances we have recognized that relevant evidence should be admitted unless there is a quite satisfactory reason for excluding it. DeJesus v. Yogel, 404 Mass. 44, 47 (1989).

The defendant correctly points out "that experts' opinions are not binding on the trier of fact, who may accept or reject them in whole or in part." Commonwealth v. Hawkesworth, 405 Mass. 664, 672 (1989). It does not follow, however, that a judge in a transfer hearing may exclude relevant expert testimony with impunity. Even where a judge is sitting without a jury, he should recognize the difference between the admissibility and the weight of the evidence. Sacco v. Roupenian, 409 Mass. 25, 30 (1990) (flaws in evidence explored on cross-examination to affect weight of evidence, but do not affect admissibility of such evidence). "[T]he judge could have benefited from a range of professional opinions addressing the juvenile's amenability to rehabilitation." Commonwealth v. Clifford C., 415 Mass. 38, 47 (1993). Since there are to be further proceedings, we suggest that McCrary be allowed to testify on what the crime scene reveals as to how the homicide occurred if a proper foundation is established and provided that no satisfactory argument is advanced in support of exclusion. [Note 21]

5. Finally, the Commonwealth contends that, without the Commonwealth's knowledge, the judge ordered Dr. Barnum to make no inquiries of the defendant about the circumstances of the crime. [Note 22] The defendant argues that no such communication occurred, and that any objection to the communication is not timely. The record does not clearly demonstrate whether the judge's directions to Dr. Barnum were made with or without the knowledge of both parties. Even assuming that the Commonwealth had no prior knowledge, it was

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not prejudiced because Dr. Barnum did in fact inquire as to the circumstances of the crime. [Note 23], [Note 24]

It is not necessary that we comment on the further arguments raised by the Commonwealth both because they are of dubious significance and because the issues are unlikely to arise in a new hearing.

The case is remanded to the juvenile session of the Somerville District Court for further proceedings consistent with this opinion.

So ordered.