NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1121

COMMONWEALTH

vs.

HARRY H., a juvenile.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the juvenile was adjudicated delinquent 

on charges of assault and battery, in violation of G. L. c. 265,

§ 13A (a), and malicious destruction of property under $1,200,

in violation of G. L. c. 266, § 127. The judge entered a 

continuance without a finding for one year with respect to each 

charge.2 Once the juvenile successfully completed the 

administrative probationary period, both charges were dismissed.3

1 A pseudonym.

2 See Commonwealth v. Magnus M., 461 Mass. 459, 463-464 

(2012) (determining that G. L. c. 119, § 58, permits a Juvenile 

Court judge to continue a case without finding notwithstanding 

adjudication of delinquency).

3 The Commonwealth contends that the juvenile's appeal is 

moot because the case was ultimately dismissed. However,
2

On appeal, he claims that the judge abused her discretion by 

permitting the victim to make an in court identification, and by 

denying his request for a jury instruction that would have 

permitted the jury to consider his youth in determining

delinquency. The juvenile also maintains that the prosecutor's 

opening statement constituted prejudicial error. We affirm.

Discussion. 1. In-court identification of the juvenile. 

Prior to commencement of the trial, the Commonwealth requested 

permission to ask the victim to make an in-court identification 

of his assailant, pursuant to Commonwealth v. Crayton, 470 Mass. 

228, 243 (2014). The juvenile objected, and the judge allowed 

the Commonwealth's request for the parties to conduct a voir 

dire examination of the victim.

During voir dire, the victim testified that his close 

friend, Ashley, was in a relationship with the juvenile. The 

victim had not met the juvenile in person prior to the incident 

giving rise to the charges, and they did not go to the same 

school. However, the victim was aware of the defendant's

relationship with Ashley because she had told him they were 

because the juvenile has shown that "there remain genuine and 

serious collateral consequences" to the jury's adjudications of 

delinquency by virtue of such adjudications appearing on his 

record, among other things, we do not agree that the case is 

moot (citation omitted). Commonwealth v. Oswaldo O., 94 Mass. 

App. Ct. 550, 553 (2018). See Commonwealth v. Preston P., 483

Mass. 759, 768-769 (2020); Commonwealth v. Humberto H., 466 

Mass. 562, 572-573 (2013).
3

dating and the victim followed Ashley on Instagram, a social 

media platform, where she had posted pictures of the juvenile on 

her "highlights."4 The victim viewed the juvenile on Ashley's 

highlights approximately four times. In each of these 

highlights, the juvenile appeared to have a different hair 

color. Notably, the fourth time the victim saw him, the 

juvenile had an unnatural "candy red" hair color. The victim 

did not follow the juvenile on Instagram, but he knew his first 

name and Instagram handle.

As to the incident, the victim testified that Ashley asked 

to walk him home after school one day. The victim felt this was 

suspicious, so he declined her invitation and went home alone 

using a different route. When he turned onto his street, the 

juvenile came up from behind and started attacking him. The

juvenile then pulled down the mask he was wearing and said,

"Don't talk shit again." The juvenile threw the victim's phone 

on the ground and broke it before fleeing the scene with the 

victim's bicycle.5 The victim testified that he knew it was the 

4 As explained by the victim, "highlights" are posted 

stories that a user saves at the top of their Instagram profile. 

Generally, others can only view a user's story at any time 

during a twenty-four period. However, once a story is saved to 

a user's highlights, others can view the story at any time until 

the user deletes them from the user's profile.

5 The juvenile was not charged with any crime related to the 

victim's bicycle. Accordingly, the judge allowed the juvenile's 
4

juvenile who attacked him because when the mask was pulled down,

the victim could see the juvenile's face and red hair, which was 

similar to the "candy red" shade he previously had seen on 

Instagram. The victim provided the juvenile's first name and 

Instagram handle to the two officers who arrived on scene. 

Based on this testimony, the judge allowed the Commonwealth's 

motion over the juvenile's objection, and the victim ultimately 

identified the juvenile at trial.

On appeal, the juvenile claims that the judge should not 

have permitted the victim to identify him in court, without 

having participated in a prior, out-of-court identification 

procedure, because there was no "good reason" to admit such 

evidence. Crayton, 470 Mass. at 243. We review the judge's 

ruling for an abuse of discretion. See Commonwealth v. Collins,

92 Mass. App. Ct. 395, 397 (2017). "[A] judge's discretionary 

decision constitutes an abuse of discretion where we conclude 

the judge made 'a clear error of judgment in weighing' the 

factors relevant to the decision, . . . such that the decision 

falls outside the range of reasonable alternatives" (citation 

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

"Where an eyewitness has not participated before trial in 

an identification procedure, we shall treat the in-court 

request for the victim to not mention anything about the bicycle 

in front of the jury.
5

identification as an in-court show up, and shall admit it in 

evidence only where there is 'good reason' for its admission." 

Crayton, 470 Mass. at 241. "[T]here may be 'good reason' for 

the first identification procedure to be an in-court show up

where the eyewitness was familiar with the [juvenile] before the 

commission of the crime, such as where a victim testifies to a 

crime of domestic violence." Id. at 242. "This is so because 

'the witness is not identifying the [juvenile] based solely on 

his or her memory of witnessing the defendant at the time of the 

crime,' and therefore 'there is little risk of misidentification 

arising from the in-court show up despite its suggestiveness.'" 

Commonwealth v. Gil, 104 Mass. App. Ct. 124, 129 (2024), quoting 

Crayton, supra at 243. "Good reason" may also exist where the 

eyewitness had "an extensive and intensive opportunity to 

observe the [juvenile]." Commonwealth v. Fielding, 94 Mass. 

App. Ct. 718, 723 (2019). The juvenile bears the burden of 

proving that there is not "good reason" for the in-court 

identification. See Crayton, 470 Mass. at 243.

In Gil, we held that "good reason" existed for the trial 

judge to allow the eyewitness to make an in-court identification 

of the defendant, even though the eyewitness did not personally 

know the defendant. Gil, supra at 129-130. The eyewitness 

testified that he recognized the defendant because he "'had just 

seen her before . . . on videos and on [his family member's
6

Snapchat] stories,'6 and in the past, he 'would see her out . . .

in different businesses, different bars with [the family 

member]'" (footnote in original). Id. at 127 & n.3. The incourt identification was also supported by the eyewitness's

interactions with the defendant during and immediately after the 

crime, including physically placing himself in such a way as to 

prevent further injury to the victim and escorting the defendant 

out of the apartment, which provided him with an "intensive 

opportunity to observe" the defendant. Id. at 130, quoting

Fielding, 94 Mass. App. Ct. at 723. Thus, relying on all of 

these factors, the eyewitness's prior familiarity with the 

defendant's image from social media, his observations of her in 

social settings, and his opportunity to observe the defendant

during and immediately after the crime, we concluded that the 

judge did not abuse his discretion in allowing the eyewitness to 

identify the defendant for the first time at trial. Gil, supra.

While Gil also concerned an in-court identification based 

partially on the eyewitness viewing the perpetrator on another's 

social media posts, the facts before us present a closer 

6 "Snapchat is a social media application [that allows 

users] to publish . . . video recordings . . . [and] to share 

text, photographs, and video recordings, collectively known as 

'snaps'" (citation omitted). Commonwealth v. Carrasquillo, 489 

Mass. 107, 108-109 (2022). A 'story' is 'shared with a larger 

audience [than direct snaps], remain[s] visible for up to 

twenty-four hours, and can be continuously replayed' (citation 

omitted). Id. at 109."
7

question as to whether the in-court identification was proper. 

Here, the victim had less prior familiarity with the juvenile 

and did not have such an "intensive opportunity to observe" him. 

Gil, 104 Mass. App. Ct. at 130, quoting Fielding, 94 Mass. App. 

Ct. at 723. The victim had not seen the juvenile in person 

before, and he only saw the juvenile's face briefly at the time 

of the incident, when his mask was pulled down. However, the 

victim nonetheless instantly recognized the juvenile. He had 

previously seen the juvenile's face four times on Ashley's 

Instagram highlights, and the juvenile had the same unnatural

"candy red" hair color that he had in Ashley's most recent 

highlight.7 The victim was able to provide the juvenile's first 

name and individual Instagram handle to the officers at the 

scene based on this prior familiarity. Because the victim did 

not identify the juvenile based solely on his memory of 

witnessing the juvenile at the time of the crime, there was

little risk of misidentification arising from the in-court show 

up despite its suggestiveness. See Crayton, 470 Mass. at 243; 

Gil, 104 Mass. App. Ct. at 128, 130. Accordingly, we conclude 

that the judge did not abuse her discretion in permitting the 

victim to identify the juvenile in court.

7 The fact that the victim felt it was suspicious that 

Ashley, the juvenile's girlfriend, asked to walk him home that 

day provides additional support for the identification.
8

2. Juvenile-specific jury instruction. The juvenile next 

claims that the judge abused her discretion in not instructing 

the jury, as requested, that they could consider his youth as a 

factor in determining delinquency. The juvenile proposed that 

the judge instruct the jury as follows:

"This is a case where the accused is a child. The United 

States Supreme Court has determined, based on science and 

common sense, that children are different than adults in 

three significant ways: first, children lack maturity and a 

sense of responsibility; second, children are more 

susceptible to negative influences and outside pressures; 

and third, a child's character is not as full-formed as an 

adult.

"Anyone who remembers being a teenager, who has been the 

parent or caretaker of a teenager, or who has observed 

adolescent behavior, knows intuitively what scientific 

research shows – that adolescents do not think or behave 

like adults; their brains are not yet fully developed in 

the areas that control impulses, ability to foresee the 

consequences of their actions, and to temper their 

emotions. These differences are characteristics that you 

may consider as you listen to the evidence in this case."

We discern no abuse of discretion. In Commonwealth v. Brown,

474 Mass. 576, 589 (2016), the Supreme Judicial Court reviewed a 

judge's denial of a similar request and determined that there 

was no error. In that case, the defendant requested an 

instruction which would have told the jury that "there was 

evidence that [the defendant] was a juvenile and therefore had 

less or a diminished capacity than an adult for making critical 

judgments." Id. Although the requested instruction at issue 

here provided that the jury "may consider" the differences 
9

between juveniles and adults, like the instruction in Brown,

"[t]he proposed instruction in this case essentially directed 

the jury to accept, as a matter of law, that all juveniles lack 

the capacity to form the requisite criminal intent to commit" an 

assault and battery and malicious destruction of property. Id. 

at 590. However, "although children may not have the maturity 

fully to appreciate the consequences of wrongful actions, 'that 

does not mean that a delinquent child lacks the ability to 

formulate the specific intent to commit particular wrongful 

acts.'" Commonwealth v. Okoro, 471 Mass. 51, 65 (2015), quoting 

Commonwealth v. Ogden O., 448 Mass. 798, 804 (2007). We further 

note that the Legislature has determined that youth in the 

juvenile's age group are capable of forming the requisite intent 

to commit the charged acts, and "it is not the province of the 

court to sit and weigh conflicting evidence supporting or 

opposing a legislative enactment." Okoro, supra, quoting Ogden,

supra at 805 n.6. The juvenile was not entitled to the 

requested instruction.

3. The Commonwealth's opening statement. Finally, the 

juvenile claims that it was error for the trial prosecutor to 

conclude his opening statement by stating, "Thank you, and I 

know that you'll make the right decision." The juvenile timely 

objected, so we review for prejudicial error. Brown, supra at 

588. "[A] claim of improper [opening statement] by the 
10

prosecutor must be judged in light of the entire [statement],

the judge's instructions to the jury, and the evidence actually 

introduced at trial." Commonwealth v. Kapaia, 490 Mass. 787,

794 (2022), quoting Commonwealth v. Barbosa, 477 Mass. 658, 669 

(2017).

Here, the challenged statement was improper. While the 

prosecutor did not explicitly state that the "right decision"

would be to find the juvenile delinquent, the statement was 

susceptible of conveying that meaning. "It is improper for a 

prosecutor to equate a guilty verdict with justice." 

Commonwealth v. Francis, 450 Mass. 132, 140 (2007). The 

challenged statement is similar to certain remarks in closing 

statements that have been deemed impermissible. See 

Commonwealth v. Degro, 432 Mass. 319, 329 (2000) ("a request 

that the jury do their 'job,' although not explicitly stating 

that this effort will result in a guilty verdict, is not 

permissible advocacy"); Commonwealth v. Deloney, 59 Mass. App. 

Ct. 47, 53 (2003) ("'Now is the time for justice. Find him 

guilty' . . . creates too great a risk of misinterpretation by 

the jury that there is a duty to convict . . . or that proper 

performance of their function requires a guilty verdict"

[citations omitted]); Commonwealth v. Cobb, 26 Mass. App. Ct. 

283, 286 (1988) (reference to the jury's "duty," even "without 

an explicit statement that its exercise will result in a verdict 
11

of guilty, should be held to pass the line of permissible 

advocacy").

However, "[t]he jury have the ability to discount hyperbole 

and other improper statements . . . and the trial judge's 

instructions are generally adequate to cure errors in the 

arguments" (citations omitted). Commonwealth v. Santiago, 425 

Mass. 491, 495 (1997). "Thus, in many cases, arguments by the 

prosecutor, while in error, are not unduly prejudicial." Id. 

This is one such case.

Here, the judge instructed the jury that opening statements 

are not evidence just prior to the Commonwealth's opening 

statement and in her final charge to the jury.8 We presume the 

jury followed these instructions. See Commonwealth v. 

Silanskas, 433 Mass. 678, 702 (2001). Additionally, "we presume 

the jury 'know that the prosecutor is an advocate' . . . and 

that they recognize arguments as 'advocacy and not statements of 

personal belief'" (citations omitted). Commonwealth v. 

Valentin, 474 Mass. 301, 310 (2016), quoting Commonwealth v. 

8 The juvenile maintains that the judge should have reminded 

the jury that opening statements are not evidence or provided a 

curative instruction immediately following the improper 

statement, and that the failure to do so was unduly prejudicial. 

We believe, however, that the instructions the judge did provide 

to the jury were sufficient to overcome any undue prejudice.
12

Mejia, 463 Mass. 243, 254 (2012). Thus, while the statement was 

made in error, it did not unduly prejudice the juvenile.

Adjudications of delinquency 

affirmed.

By the Court (Vuono, Rubin & 

Walsh, JJ.9),

Clerk

Entered: September 19, 2024.

9 The panelists are listed in order of seniority.