Commonwealth v. Jacob M. Hebert. ( 2023 )

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
22-P-572
COMMONWEALTH
vs.
JACOB M. HEBERT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant and the codefendant, John
Jones, of two counts each of aggravated rape (by joint
enterprise) under G. L. c. 265, § 22 (a). The defendant filed a
postconviction motion that raised the following claims for the
first time: (1) the prosecution failed to record instructions
provided to the grand jury; (2) the prosecutor misled the grand
jury through an erroneous instruction; (3) the jury likely
convicted him of uncharged crimes because the evidence before
the grand jury and at trial showed multiple acts of penetration,
yet no particular acts were specified in the indictments; and
(4) the trial judge provided erroneous joint venture
instructions. The Superior Court judge who presided over the
trial denied the motion. In a consolidated appeal from his
convictions and from the order denying the motion, the defendant
repeats these claims. We affirm.
Discussion. According to the Commonwealth's case, on
January 10, 2017, the defendant joined with Jones in a prolonged
sexual assault of the victim. The defendant and the victim
previously knew each other and had an ongoing relationship with
a sexual component. The defense contended that the three
individuals had consensual sex on the day in question. At the
conclusion of the trial, the jury returned guilty verdicts
against the defendant and Jones for aggravated rape (vaginally)
and aggravated rape (anally). The jury acquitted the defendant
and Jones of aggravated rape (orally).
The defendant raised the present claims for the first time
in his postconviction motion. We discern no abuse of discretion
in the denial of the defendant's postconviction motion and
discern no basis to disturb the judgments. We address his
several claims in turn.
1. Grand jury recording requirement. Contrary to the
defendant's first claim, the Commonwealth did not violate the
recording requirement for grand jury presentations. On January
6, 2017, the Supreme Judicial Court released the case of
Commonwealth v. Grassie, 476 Mass. 202 (2017), which required
that "the entire grand jury proceeding . . . be recorded in a
manner that permits reproduction and transcription." Id. at
2
220. The court indicated that the recording must include "any
legal instructions provided to the grand jury by a judge or a
prosecutor in connection with the proceeding." Id. The court
further instructed that "[t]he recording requirement shall apply
beginning with each newly constituted grand jury including the
Statewide grand jury, that is empaneled and sworn following the
issuance of the rescript in this case" (emphasis added). Id. A
"rescript" is "the order, direction, or mandate of the appellate
court disposing of the appeal." Foxworth v. St. Amand, 457
Mass. 200, 205 n.7 (2010), quoting Mass. R. A. P. 1 (c), 365
Mass. 844 (1974). When an appellate court renders such a
rescript, the court clerk notifies the parties and then "issues
the rescript to the lower court twenty-eight days after the date
of the rescript" (emphasis added). Foxworth, supra at 205,
citing Mass. R. A. P. 23, as appearing in 367 Mass. 921 (1975).
In the present case, on January 9, 2017, just three days after
the Grassie decision, the Superior Court empaneled the grand
jury –- long before the usual twenty-eight day period for a
rescript to issue. Given this sequence of events, at the time
of the presentation of this case to the empaneled grand jury,
the recording requirement had not yet become operative,1 and the
Commonwealth lacked any obligation to record instructions.
1 We need not decide precisely when the recording requirement
became operative after the grand jury presentation here –-
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2. Impairment of grand jury process. We also discern no
impairment of the grand jury proceedings. The defendant
contends that the prosecutor "affirmatively misled" the grand
jury through an erroneous instruction on joint enterprise.
"[T]he heavy burden to show impairment of the grand jury
proceeding is borne by the defendant." Commonwealth v.
Stevenson, 474 Mass. 372, 376 (2016). To sustain that burden,
the defense must show that the prosecution knowingly deceived
the grand jury about a significant issue "with the intention of
obtaining an indictment." Commonwealth v. Mayfield, 398 Mass.
615, 621 (1986). In support of his claim, the defendant asserts
that the "prosecutor told the grand jury that a joint-enterprise
rape occurs even if the defendant acts alone." This assertion
is not supported by the record.
The record, consisting of an affidavit from the prosecutor,
shows that the prosecutor lacked a specific memory of what he
told the grand jurors. During the grand jury presentation, he
provided preliminary background information, referred to an
outline, and informed the grand jury about specific acts of
penetration that pertained to each indictment. He averred, in
part:
whether twenty-eight days after the Grassie decision, or when
the Grassie rescript actually issued on June 14, 2019, or at
some other time.
4
"Prior to going on the record with the stenographer, I
provided preliminary background information to the
grand jury, as was my customary practice during that
time. . . . I do not have a specific memory of the
content of the introductory information. . . .
Attached is an outline that I prepared for that
presentation. . . . I am confident that I referred to
the outline during my introduction and that I informed
the grand jury that each of the three aggravated rape
indictments referred to a different form of
penetration, as set out in the outline."
The outline attached to the affidavit consisted of five typed
pages. One notation included the category "elements" that
contained a subcategory of "joint venture" and a further
subcategory indicating, "Defendant knowingly participated in the
commission of the crime charged, alone or with others, with the
intention required for that offense." Contrary to the
defendant's assertion, the record does not establish that the
prosecutor read or otherwise conveyed this portion of the
outline to the grand jury. The affidavit shows that the
prosecutor "referred" to the outline and "informed" the grand
jurors about the acts of penetration linked to each indictment.
He did not attest to providing any instruction on joint venture.
Notably, the outline contains other information that would not
be provided to the grand jury, including references to the
penalties for the offenses. A mere reference on a prosecutor's
outline does not equate with conveying information to the grand
jury. Based upon this record, the defendant did not meet his
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"heavy burden" of showing impairment of the grand jury
proceedings. Stevenson, 474 Mass. at 376.
Even if the prosecutor suggested to grand jurors that the
crimes could be committed "alone," we discern no impairment of
the grand jury proceedings. The victim's testimony before the
grand jury showed that the defendant and Jones acted together.
They entered the house together at about 2 A.M., drank and
talked together in the living room, repeatedly raped the victim
together in the living room, filmed a brief portion of the rape
together, watched the videotape together, and left together at
about 5 A.M. This testimony supported the indictments for rape
"committed by a joint enterprise," G. L. c. 265, § 22 (a), and
was quite unlikely to have led to indicting the defendant acting
"alone." We also note the longstanding "practice of subjecting
grand jury proceedings to only limited judicial review."
Commonwealth v. Noble, 429 Mass. 44, 48 (1999). Generally,
"[t]he Commonwealth is not required to inform a grand jury of
the elements of the offense." Id. When instructions are
provided, the grand jury "need not be instructed with the same
degree of precision that is required when a petit jury is
instructed on the law." Id. at 47 n.3, quoting People v.
Calbud, Inc., 49 N.Y.2d 389, 394 (1980).
During the argument before the panel in this case, the
defendant asserted that we cannot consider the prosecutor's
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affidavit on this issue. The defendant claimed that the record
must be parsed and aligned with the various postconviction
motions that he filed.2 In particular, the defendant argued that
the prosecutor's affidavit, filed in response to an "Emergency
Motion for Stay of Execution of Sentence Pending Appeal," cannot
be considered in connection with the different postconviction
"Motion to Vacate Convictions and to Dismiss Indictments," in
which the defendant claimed that the prosecutor misled the grand
jury. We disagree. The affidavit is one of the "original
papers and exhibits on file" in the Berkshire Superior Court and
constitutes part of the record in this matter. See Mass. R. A.
P. 8 (a), as amended, 378 Mass. 932 (1979). "[W]e decide the
case on this record" that was before the Superior Court. Pilch
v. Ware, 8 Mass. App. Ct. 779, 780 (1979). See Commonwealth v.
Morse, 50 Mass. App. Ct. 582, 584 n.3 (2000) (rejecting defense
claim that appellate review of record was limited where
affidavit was filed in support of motion to revise and revoke
2 The defendant filed an "Emergency Motion for Stay of Execution
of Sentence Pending Appeal" (and supporting memorandum) on or
about April 28, 2020. As grounds for that motion, the defendant
claimed, among other things, that the indictments failed to
delineate the forms of penetration. On May 13, 2020, the
Commonwealth filed an affidavit of the prosecutor who presented
the case to the grand jury in support of its opposition to that
motion. On July 2, 2021, the defendant filed a "Motion to
Vacate Convictions and to Dismiss Indictments" (and supporting
memorandum). In a memorandum of decision and order dated May
31, 2022, the Superior Court rejected all the defense claims.
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and was not related to probation revocation). We also note that
the judge hearing the postconviction motion also relied upon the
affidavit, and the defendant bases his claim of misleading the
grand jury upon the very affidavit that he claims we cannot
consider.
We also discern no impropriety in the filing of the
prosecutor's affidavit. A party may file affidavits in
connection with postconviction motions. Mass. R. Crim. P. 30
(c), as appearing in 435 Mass. 1501 (2001). "The primary
purpose of (rule 30 [c] [3]) is to encourage the disposition of
post conviction motions upon affidavit." Commonwealth v.
Stewart, 383 Mass. 253, 260 (1981), quoting Reporter's Notes to
Mass. R. Crim. P. 30, at 484 (1979). The judge here credited
the affidavit and concluded that the prosecutor provided
erroneous joint venture instructions to the grand jury. For
reasons previously discussed, we disagree with part of the
judge's conclusion because the affidavit does not state that the
prosecutor provided any instructions to the grand jury relative
to joint venture. "A judge who has seen and heard the witnesses
is in a better position to determine their credibility than is a
court which is confined to the printed record. The situation is
different in regard to findings made upon written evidence. In
that respect this court stands in the same position as did the
trial judge, and reaches its own conclusion unaffected by the
8
findings made by the trial judge." Commonwealth v. Novo, 442
Mass. 262, 266 (2004), quoting Berry v. Kyes, 304 Mass. 56, 57
(1939). See Commonwealth v. Tremblay, 480 Mass. 645, 654-655
(2018).
3. Single indictment for multiple acts. We also disagree
with the defendant's contention that he may have been convicted
of an uncharged crime. He argues that because the jury and
grand jury heard evidence about multiple acts of penetration of
the victim, and the indictments in his view charged only three
distinct, separate penetrative acts, there existed "a 50% chance
[or greater] that the defendant was convicted of an uncharged
crime." Several factors obviated any such risk. First, as
credited by the judge, the prosecutor asserted in his affidavit
that he "informed" the grand jurors that "each of the three
aggravated rape indictments referred to a different form of
penetration."3 Second, the judge instructed the jurors, without
objection, that they "must unanimously agree on the specific
3 The defendant argues, without citation to authority, that
"because the indictments that issued do not actually reflect
such a grouping, and because the only evidence of such intent is
the Commonwealth's self-serving report of an unrecorded
statement to the grand jury, such argument does not save the
otherwise defective indictment from duplicity." We decline to
consider this further challenge to consideration of the
affidavit, as the defendant's "briefing on this issue does not
rise to the level of appellate argument. See Mass. R. A. P. 16
(a) (9) (A), as appearing in 481 Mass. 1628 (2019)."
Commonwealth v. Beverly, 485 Mass. 1, 16 (2020).
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rape (vaginal, oral, anal) for that particular indictment." He
added, "[i]n order to satisfy this element all of the jurors
must agree on at least the specific rape for that indictment.
If you do not all agree on the specific rape that is listed for
that indictment, you must find the defendant not guilty of this
charge." Such a "unanimity instruction" is proper where an
indictment alleges a single offense, and the "evidence shows
multiple acts of allegedly criminal conduct." Commonwealth v.
Keevan, 400 Mass. 557, 566 (1987). Third, the judge's
instructions and the verdict slips, again without objection,
made it clear that jurors had to base a unanimous verdict under
each indictment on vaginal, oral, or anal aggravated rape,
respectively. Fourth, the rapes occurred during a single
continuing episode. "[I]t is well established that a single
indictment for rape is proper where the alleged multiple acts of
penetration are part of a continuing criminal episode."
Commonwealth v. Crowder, 49 Mass. App. Ct. 720, 721-722 (2000).
Contrast Commonwealth v. Barbosa, 421 Mass. 547, 550 (1995)
("very real possibility that the defendant was convicted of a
crime for which he was not indicted," where grand jury returned
single drug distribution indictment but evidence showed two
separate drug transactions with two different buyers on the same
day). Fifth, the defense theory at trial was that the victim
consented, not that any of the acts she described did not occur.
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4. Jury instructions. Next, having carefully reviewed the
jury instructions "as a whole," we are satisfied that the judge
did not err. Commonwealth v. Kelly, 470 Mass. 682, 697 (2015).
The defendant points to two claimed errors in the instructions
that allowed: (1) the defendant to be "convicted on a joint-
venture theory based on his role abetting penetration rather
than committing penetration," and (2) the possibility that "the
jury convicted the Defendant of aggravation based on the co-
defendant's conduct on the acquitted count" of rape by oral
penetration. Based upon the instructions provided and the
evidence presented, there was no error and no "substantial risk
of a miscarriage of justice." Freeman, 352 Mass. at 564.
One form of aggravated rape is proven through the
additional element that the crime was "committed by a joint
enterprise." G. L. c. 265, § 22 (a). Initially, the judge
explained the "joint enterprise" element by incorporating the
"joint venture" language in Commonwealth v. Zanetti, 454 Mass.
449, 470 (2009) (Appendix).4 He instructed the jury that a
knowing participant in a crime is guilty if, with the intent
required for the crime, he "personally committed" the acts or
aided or assisted another in committing the crime.
4 The judge consistently used the phrase "joint venture"
throughout the jury instructions.
11
On his own, the judge raised a concern with counsel at
sidebar that the Zanetti instruction allowing a guilty verdict
if a crime is "personally committed" may conflict with the
necessity of proving a "joint enterprise" for aggravated rape.
The judge noted, "I think I have to eliminate the fact that they
can find them guilty if they simply committed the rape."
Defense counsel agreed. The judge told jurors that the
instruction he just provided on joint venture was not correct
and to disregard it. He emphasized that the Commonwealth must
prove beyond a reasonable doubt that the defendants were engaged
in a "joint venture." He then provided the Zanetti instruction
without the earlier reference to a crime being "personally
committed."
After the jury retired to deliberate, the prosecutor
questioned a portion of the joint venture instruction. The
prosecutor suggested that the instruction should have retained
the "personally committed language" while simply adding the
phrase, "with another." After a lengthy discussion, the judge
agreed, and defense counsel said he was "on board with that."
Accordingly, the judge brought the jury back into the
courtroom and instructed them for a third and final time. He
emphasized once again that aggravated rape required that the
Commonwealth also prove the defendants engaged in a "joint
venture." He then defined the elements of a joint venture:
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"One, that the defendant personally committed all of the acts
that constitute the crime with the co-defendant and with the
shared intent to commit the crime; or, two that the defendant
aided or assisted another person in committing the crime . . .
." The judge asked jurors "to keep in mind the other aspects of
the joint venture that I mentioned to you," and he followed up
by providing written jury instructions. These written
instructions also stated that the Commonwealth had to prove the
codefendants "consciously acted together before or during the
crime with the shared intent to make the crime succeed."
The judge's corrected instructions, taken together,
properly informed the jury that the Commonwealth had the burden
of proving both shared intent and "that the rape[s] [were]
committed by at least two people." Commonwealth v. Medeiros,
456 Mass. 52, 60 (2010). See Commonwealth v. Jansen, 459 Mass.
21, 28 n.20 (2011) (joint enterprise for aggravated rape
examined through joint venture evidence); Commonwealth v. Basey,
82 Mass. App. Ct. 278, 281-283 (2012) (joint enterprise for
aggravated rape proved through evidence of joint venture).
Even if the instructions were susceptible to another
interpretation, we do not see any "substantial risk of a
miscarriage of justice." Freeman, 352 Mass. at 564. At trial,
the defendant disputed the issue of consent. He testified that
during consensual sex with the victim on the floor, she "ma[d]e
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eye contact" with Jones (sitting nearby on a couch) and
"pull[ed] on his pant leg. . . . [and] "[I]t seemed like she was
kind of inviting him . . . into a threesome." The defendant
testified that he declined the threesome, got dressed, sat
nearby on the couch, and waited while the victim and Jones
engaged in consensual sex on the floor. The defendant used his
phone to take a "two-second video" of the pair having sex on the
floor, and the victim warned, "You'd better not be recording."
The defendant laughed and showed them the videotape. The victim
dressed in the bathroom, and Jones dressed in the living room.
The defendant testified that the victim was "really pissed off"
about the videotape. The defendant and Jones left, but Jones
returned briefly and retrieved a phone that he mistakenly left
behind. Given the focus on consent and the defendant's own
testimony admitting that he and Jones had sex with the victim in
close physical and temporal proximity, there is no risk that
jurors convicted the defendant for conduct outside the scope of
a joint enterprise under G. L. c. 265, § 22 (a).
Finally, we see no error in the judge's response to the
following hypothetical questions posed by the jury:
"Suppose Defendant A is charged with [aggravated] rape
orally, and we believe that the Commonwealth has proven
beyond a reasonable doubt that Defendant A is guilty of all
three elements.
"Also, suppose that Defendant B is charged with aggravated
rape orally, and we do not believe that the Commonwealth
14
has proven beyond a reasonable doubt that Defendant B is
guilty of Element 1 or Element 2, but we do believe that
the Commonwealth has proven beyond a reasonable doubt that
Defendant B is guilty of Element 3.
"First question. Would the verdict for Defendant A for the
charge of aggravated rape orally be guilty or not guilty?
"Second question. Would the verdict for Defendant B for
the charge of aggravated rape orally be guilty or not
guilty?"
The judge conferred with counsel, and counsel agreed that jurors
should be instructed to consider each indictment separately and
to decide whether the Commonwealth proved each element beyond a
reasonable doubt. The defendant now claims the judge told
jurors "that the mens rea of the co-defendant was irrelevant to
the question of aggravation." Contrary to the defense claim,
the entirety of the judge's response does not show such an
error:
"First of all, each of the indictments, and there are six
indictments you have before you, each of the –- those
indictments must be considered separately by you.
"Your verdict of not guilty or guilty for one indictment
should not and does not control your verdict for any other.
They must be considered absolutely separate.
"Secondly, in order for the defendants to be found guilty
with respect to any one of the indictments, you must find
that the Commonwealth has proven its case by finding that
beyond a reasonable doubt that they have proven each of the
three elements that I've presented to you.
"So in order to find either [of] the defendants guilty with
respect to an indictment, you have to find beyond a
reasonable doubt that the Commonwealth has proven each and
every one of those elements.
15
"If the Commonwealth has failed to prove any one of those
elements, you must find the defendant not guilty.
"Okay. So, again, with those principles in mind, you must
consider each indictment separately.
"Whatever happens on any other indictment should not and
does not affect or control you with respect to another
indictment.
"And, in order for you to find anyone guilty, the
Commonwealth must prove every single element of the three
elements that you have before you on guilty beyond a
reasonable doubt."
This response was well "within the discretion of the trial
judge, who has observed the evidence and the jury firsthand."
Commonwealth v. Wood, 469 Mass. 266, 293 (2014), quoting
Commonwealth v. Delacruz, 463 Mass. 504, 518 (2012). There is
nothing in this response that reduced the Commonwealth's burden
of proof on the aggravated rape indictments or contradicted the
judge's prior instruction that the Commonwealth had to prove
that the codefendants "consciously acted together before or
during the crime with the shared intent to make the crime
succeed." The judge was not required to inform the jury, as the
defendant argues, that "no defendant may be convicted of a joint
venture unless at least one other is also guilty of a joint
venture." The defendant's argument is based on Medeiros, 456
Mass. at 59-60, but that case concerned whether inconsistent
joint enterprise verdicts required relief, not the content of
16
jury instructions on joint enterprise. Thus, we discern no
error.
Judgments affirmed.
Order denying motion to
vacate convictions and to
dismiss indictments
affirmed.
By the Court (Neyman, Sacks &
Hodgens, JJ.5),
Clerk
Entered: June 2, 2023.
5 The panelists are listed in order of seniority.
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