Rapoza
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On June 10, 2008, the juvenile was arraigned on a charge of assault and battery by means of a dangerous weapon. A jury found her delinquent of the lesser included charge of assault and battery.
On appeal, the juvenile claims that the Federal and Massachusetts Constitutions were violated when a police officer and the juvenile's mother were each allowed to testify about the juvenile's invocation of her right to remain silent and her right to consult an attorney. Further, the juvenile contends that the repeated reference by the prosecutor to the juvenile's invocation of her right to remain silent during the closing argument created reversible error. The Commonwealth concedes error, and because the error was prejudicial, also concedes that there must be a new trial.
A concession by the Commonwealth does not relieve an appellate court of the performance of its appellate function. Commonwealth v. Williams, 19 Mass. App. Ct. 915, 916 (1984). 'Nevertheless, such confessions of error are entitled to be given great weight, . . . particularly in situations like this where the error is plain.' Ibid. See Commonwealth v. McClary, 33 Mass. App. Ct. 678, 686 n.6 (1992).
After a review of the briefs and the record appendix, the adjudication of delinquency is reversed, the finding of delinquency is set aside, and the matter is remanded to the Juvenile Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Rapoza, C.J., Smith & Vuono, JJ.),