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 pers uasive 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 , 24 3 (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

schoo l . 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 adjudication s 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 t hese
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 w en t home alone

us ing 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 bi cycle

. 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 stor y 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 bi cycle . Accordingly , the judge allowed the juvenile ' s4

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 , t he 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 24 3

. 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 eye witness 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 he r 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 Cray ton , 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 ' s6

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

. T he in

court 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 ey e witne ss's prior familiarity with the

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

social settin gs, and his opportunity to obse r ve 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 concern ed an in

- court identification based
partial ly on the eyewitness viewing the perpetrator on another ' s
social media posts , th e 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 . H e had
previous ly 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 T he 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 it s 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

. A lthough the requested instruction at issue

here provided that the jury " may consider " the differences9

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 destruct ion of property. Id

.
at 590. However , " a lthough 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 , t he
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 the10

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 th at proper
performance of their function requires a guilty verdict "
[citation s 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 verdict11

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 " (citation s 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 W e presume the
jury followed these instructions. See Commonwealth v.

Silanskas , 433 Mass. 678 , 702 (2001). Additionally , " w e 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.

A djudications of delinquency
a ffirmed

. By the Court (Vuono , Rubin & Walsh , JJ. 9 ) ,

Clerk

Entered: September 19 , 2024.

9 The panelists are listed in order of seniority.