Commonwealth v. Billingslea

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SJC-12715
COMMONWEALTH vs. ESSIE BILLINGSLEA.
Middlesex. October 1, 2019. - April 30, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Rape. Habitual Offender. Appeals Court, Concurrent
jurisdiction. Practice, Criminal, Capital case, Waiver of
trial by jury, Voir dire, Instructions to jury, Jury and
jurors.
Indictments found and returned in the Superior Court
Department on August 15, 2014.
The cases were tried before Thomas P. Billings, J.
Alan D. Campbell for the defendant.
Jessica Langsam, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. We are asked to determine whether a third
conviction of one of the crimes enumerated in G. L. c. 279, § 25
(b), may be reviewed by the Appeals Court. The defendant was
indicted for various serious felonies arising from a brutal
2
attack and rape.1 Each indictment, in addition to charging the
specific felony, also alleged that the sentence for that felony
should be enhanced pursuant to the habitual criminal provision
1 The jury found the defendant guilty of armed assault in a
dwelling with a knife, G. L. c. 265, § 18A; home invasion, G. L.
c. 265, § 18C; three counts of aggravated rape, G. L. c. 265,
§ 22 (a); assault by means of a dangerous weapon (knife), G. L.
c. 265, § 15B (b); kidnapping, G. L. c. 265, § 26; breaking and
entering a building in the daytime with intent to commit a
felony, G. L. c. 266, § 18; and assault with intent to rape,
G. L. c. 265, § 24. The defendant was found not guilty of
assault and battery by means of a dangerous weapon (knife),
G. L. c. 265, § 15A (b); and assault by means of a dangerous
weapon (firearm), G. L. c. 265, § 15B (b).
3
of G. L. c. 279, § 25 (a),2 or the habitual offender provision of
§ 25(b), or both.3,4
2 The habitual criminal portions of the indictments alleged,
and the Commonwealth presented evidence that the defendant
previously had been convicted of and sentenced to, (1) rape of a
child by force, G. L. c. 265, § 22A, with a sentence of five
years; (2) rape and abuse of a child second or subsequent, G. L.
c. 265, § 23, with a sentence of from six to ten years; (3)
indecent assault and battery on a child, G. L. c. 265, § 13B,
with a sentence of from four to five years; (4) assault with a
deadly weapon (shotgun), G. L. c. 265, § 15B (b), with a
sentence of from four to five years; (5) assault with a deadly
weapon (handgun), G. L. c. 265, § 15B (b), with a sentence of
from four to five years; and (6) armed assault to rob (knife),
G. L. c. 265, § 18 (b), with a sentence of from four to five
years.
3 The habitual offender portions of the indictments alleged
that the defendant had been convicted and imprisoned on two of
the crimes enumerated in note 2, supra: (1) rape of a child by
force, G. L. c. 265, § 22A, serving a sentence of more than
three years; and (2) indecent assault and battery on a child,
G. L. c. 265, § 13B, serving a sentence of more than three
years.
4 A habitual criminal under G. L. c. 279, § 25(a), is
defined as someone who is "convicted of a felony and has been
previously twice convicted and sentenced to state prison or
state correctional facility or a federal corrections facility
for a term not less than [three] years by the commonwealth,
another state or the United States." If the Commonwealth can
establish that the person has not been pardoned for either of
the prior two crimes on the grounds that he or she was innocent,
the habitual criminal is sentenced to the "maximum term provided
by law."
A habitual offender under G. L. c. 279, § 25(b), must have
been convicted twice previously of one of the enumerated
offenses in the statute or
"of a like violation of the laws of another state, the
United States or a military, territorial or Indian tribal
authority, arising out of charges separately brought and
tried, and arising out of separate and distinct incidents
4
After being convicted, the defendant moved in the Appeals
Court to vacate the entry of his appeal in that court and to
have the case entered directly in this court. He argued that
because his case is defined as a "capital case" by G. L. c. 278,
§ 33E, as amended by St. 2012, c. 192, §§ 143-144, he was
entitled to have it entered directly in, and decided by, this
court in the first instance.5 The Appeals Court denied his
that occurred at different times, where the second offense
occurred subsequent to the first conviction . . ."
A habitual offender must have been sentenced to a term of
imprisonment of at least three years for each of the prior two
convictions with no pardon for innocence on either conviction,
and he or she similarly receives the maximum sentence provided
by law. Under § 25(b), however, "[n]o sentence imposed . . .
shall be reduced or suspended nor shall such person so sentenced
be eligible for probation, parole, work release or furlough or
receive any deduction from such person's sentence for good
conduct."
5 General Laws, c. 278, § 33E, provides:
"In a capital case as hereinafter defined the entry in the
supreme judicial court shall transfer to that court the
whole case for its consideration of the law and evidence.
Upon such consideration the court may, if satisfied that
the verdict was against the law or the weight of the
evidence, or because of newly discovered evidence, or for
any other reason that justice may require (a) order a new
trial or (b) direct the entry of a verdict of a lesser
degree of guilt, and remand the case to the superior court
for the imposition of sentence. For the purpose of such
review a capital case shall mean: (i) a case in which the
defendant was tried on an indictment for murder in the
first degree and was convicted of murder in the first
degree; or (ii) the third conviction of a habitual offender
under subsection (b) of [§] 25 of c[.] 279. After the
entry of the appeal in a capital case and until the filing
of the rescript by the supreme judicial court motions for a
5
motion without prejudice to renewal in this court. We ordered
that the defendant's appeal be transferred to this court. For
the reasons that follow, we hold that a direct appeal from the
third conviction of a habitual offender pursuant to G. L.
c. 279, § 25 (b), may be entered in the Appeals Court, that this
direct appeal is entitled to the unique review prescribed by
§ 33E, and that the Appeals Court may conduct such § 33E review.
We also address the other issues raised by the defendant.
Background. 1. Facts. We recite the facts as the jury
could have found them, reserving certain details for later
discussion.
At around 6:30 P.M. on June 1, 2014, the victim was in her
second-floor apartment. She heard a noise from the back porch
and went to investigate. In a "split second," she saw the
silhouette of a large African-American man (the defendant) who
punched her "extremely hard" in the face, causing her to bleed
profusely.
new trial shall be presented to that court and shall be
dealt with by the full court, which may itself hear and
determine such motions or remit the same to the trial judge
for hearing and determination. If any motion is filed in
the superior court after rescript, no appeal shall lie from
the decision of that court upon such motion unless the
appeal is allowed by a single justice of the supreme
judicial court on the ground that it presents a new and
substantial question which ought to be determined by the
full court."
6
The defendant pushed the victim into her bedroom and
demanded that she take off her clothes. Over the next hour, he
brutally sexually assaulted her. At some point, he yelled at
the victim and ordered her to make a blindfold; she complied.
At around 7:30 P.M., the victim's boyfriend telephoned her
to inform her that he was on his way to her residence. The
defendant instructed the victim to answer the telephone, and
shortly thereafter told the victim to call the boyfriend back
and tell him not to come to the apartment. Because of the
victim's monotone voice and one word replies to his questions
during both calls, the boyfriend called 911 and requested that
the police go to the victim's apartment to conduct a well-being
check.
A short time later, the defendant was sitting next to the
victim on the living room couch when they both heard a noise
from a car door. The defendant went to the window and "said
something like, 'Oh, shit, the cops.'"
When her boyfriend arrived at the victim's home, two police
officers were already at the front door. A light in the
apartment briefly turned on and off, but no one opened the door.
The boyfriend led police to the side of the house, where a door
was unlocked, and into the basement. He and one of the officers
saw what appeared to be two people coming down the stairs, one
of whom was naked from at least the top of the thighs down.
7
The victim testified that shortly after she heard the car
door, she could hear the doorbell and people calling her name,
but she was in "utter . . . shock" and "catatonic." The
defendant walked "snug up" behind her and ushered her, still
completely naked and blindfolded, through the kitchen and down
the back stairwell. When they reached the halfway point of the
lower set of stairs, an officer identified himself and began
walking toward the victim. The defendant pulled away from her
and managed to flee the residence.
The victim told her boyfriend, "I got raped. I thought I
was going to die."
Meanwhile, one of the officers in pursuit of the defendant
made eye contact with him. The defendant said, "Come and get
me," before running. When the officer approached the defendant,
the defendant lunged at him twice. After a struggle, the
defendant was handcuffed and continued to kick, roll around, and
yell. A large steak knife, a box cutter, and a cellular
telephone (cell phone) were recovered from the defendant.6
At trial, the defendant testified that he and the victim
had been in a sexual relationship and that their encounter was
consensual. He testified that he was homeless and could not
6 Investigators also found a walkie-talkie radio and duct
tape in the clothing the defendant left in the victim's
apartment.
8
leave anything at the shelter, which implied that this was the
reason that he had a knife, box cutter, duct tape, and other
items with him at the victim's home. He testified that he
struck the victim in the face after they had an argument about
their respective significant others. He stated that when the
victim's boyfriend arrived, she told the defendant to "just go
out the back," and he was confused by his encounter with the
officers who "slammed [him] to the concrete," put him "in a
choke hold," and handcuffed him.
2. The sentencing enhancement provisions of the
indictments. After the jury convicted the defendant, he
executed a written waiver, and a bench trial was held on the
habitual offender portion of the indictments. The defendant
filed a motion to dismiss the habitual offender portion of the
indictments on the ground that they did not allege that he
previously had committed the same offenses. The judge denied
the motion. The Commonwealth then filed a nolle prosequi as to
the habitual criminal enhancements and moved for sentencing on
the habitual offender enhancements. The judge sentenced the
defendant to life in prison without the possibility of parole on
the charge of armed assault in a dwelling with a knife, G. L.
c. 265, § 18A. The defendant also was sentenced on the
remaining charges of home invasion; three counts of aggravated
rape; assault by means of a dangerous weapon -- knife;
9
kidnapping; breaking and entering a building in the daytime with
intent to commit a felony; and assault with intent to rape. The
defendant filed a notice of appeal in the Appeals Court.
Discussion. 1. Appellate jurisdiction of the third
conviction of a habitual offender under G. L. c. 278, § 33E, the
history of G. L. c. 278, § 33E, and the transformation of § 33E
powers. General Laws c. 278, § 33E, guarantees a defendant's
right to appeal a conviction after trial of murder in the first
degree directly to the Supreme Judicial Court and grants a more
searching and comprehensive standard of review than ordinary
appellate procedure.7 Section 33E originally provided, in part:
"The clerk shall . . . transmit . . . the record on appeal, to
. . . the supreme judicial court for the commonwealth . . . .
The entry thereof shall not transfer the case but on the
questions to be determined. The supreme judicial court shall
consider the questions of law fairly raised." See St. 1926,
c. 329, § 4; G.L. 1932 (Ter. Ed).
An amendment in 1939 added a second paragraph to § 33E,
which now comprises, in essence, the entire section. See St.
7 After the direct appeal, however, as we discuss, a
defendant in a capital case must contend with the gatekeeper
provision of § 33E, see discussion infra, where a defendant in a
noncapital case may file any number of appeals from motions for
postconviction relief without obtaining permission from a
gatekeeper. Mass. R. Crim. P. 30 (c) (8), as appearing in 435
Mass. 1501 (2001).
10
1939, c. 341. "The [1939] amendment was enacted in part to
remedy the defects in such procedures which had been especially
evident in the celebrated cases of" Nicola Sacco and Bartolomeo
Vanzetti. Commonwealth v. Brown, 376 Mass. 156, 167 (1978),
citing Commonwealth v. Sacco, 259 Mass. 128 (1927), and
Commonwealth v. Sacco, 255 Mass. 369 (1926).
These "defects" were emphasized by the Judicial Council,8
which published in 1927, shortly after the executions of Sacco
and Vanzetti, the entire docket of the trial in order to
"illustrate[] in a striking way some serious defects in our
methods of administering justice." Third Report of the Judicial
Council, Pub. Document No. 144, at 37 (Nov. 1927), reprinted in
13 Mass. L.Q. 1 (1927). Although the council recommended
granting the court the power to consider the whole case and
order a new trial if justice requires, the impetus for the
recommendation appears to be, in part, the six-year delay
between the verdict and the execution, rather than the errors at
8 The Judicial Council was created in 1924 when a
legislative commission suggested it be implemented to "make a
continuous study of the courts, report annually to the Governor
on the work of the judicial branch and suggest rules of practice
and procedure to the courts." Johnedis, "Creation of the
Appeals Court and its Impact on the Supreme Judicial Court," The
History of the Law in Massachusetts: the Supreme Judicial Court
1692-1992, at 451 (1992). It was comprised of judges from
various courts and lawyers, and eventually played a significant
role in the founding of the Appeals Court. Id.
11
the trial . Id at 37-38, 42, 78 (Appendix A). Allen, Section
33E Survives the Death Penalty: Why Extraordinary Review of
First-Degree Murder in Massachusetts Serves No Compelling
Purpose, 45 Suffolk U.L. Rev. 979, 988-989 (2012) ("But the
focus was neither predominantly on the trial's injustice nor on
abolishing the death penalty; rather the Judicial Council
reserved its particular criticism for the extraordinary, six-
year delay between the verdict and execution").9
In 1937 and 1938, the Judicial Council again recommended
that the Supreme Judicial Court "be given power to review the
evidence in capital cases and make such orders as justice may
seem to require."10 Thirteenth Report of the Judicial Council,
9 Justice Felix Frankfurter detailed the many egregious
errors in the Sacco and Vanzetti case. Frankfurter, The Case of
Sacco and Vanzetti, The Atlantic, 409 (Mar. 1927). He described
the prosecutor's willingness to put forth unreliable witnesses
with contradictory testimony and the judge's inability or
unwillingness to appropriately instruct the jury (among other
serious issues). Id. at 411-416, 421-424. Written while he was
a professor at Harvard Law School, Justice Frankfurter's
meticulous analysis highlighted the need for an appellate court
to conduct plenary review to remedy such injustice. See id. at
427 ("Th[e] court could not inquire whether the facts as set
forth in the printed record justified the verdict. . . . What is
reviewed in effect is the conduct of the trial judge; only so
called questions of law are open").
10Both in 1937 and a decade earlier, the Judicial Council
looked to other States' treatment of first-degree murder
appeals. Thirteenth Report of the Judicial Council, supra at
29; Third Report of the Judicial Council, supra at 42-43. In
1927, the Council noted that a recent statute had vested the
same broad power in the New York Court of Appeals. Third Report
of the Judicial Council, supra at 42. In 1937, when considering
12
Pub. Document No. 144, at 28-30 (Nov. 1937), reprinted in 23
Mass. L. Q. 1(1938); Fourteenth Report of the Judicial Council,
Pub. Document No. 144, at 14-16 (Nov. 1938). The amendment to
§ 33E proposed by the Judicial Council guaranteed that the entry
of an appeal in a capital case transferred to the Supreme
Judicial Court the whole case for consideration of the facts as
well as the law. See Thirteenth Report of the Judicial Council,
supra at 30; Fourteenth Report of the Judicial Council, supra at
16. See also Third Report of the Judicial Council, supra at 78
(Appendix A). It also served to reduce frivolous appeals by
imposing the requirement that after one plenary review, to file
a motion for a new trial, a defendant must pass the scrutiny of
a single justice of the Supreme Judicial Court acting as a
gatekeeper. See St. 1939, c. 341.
In 1962, § 33E was amended to broaden this court's powers
in the review of capital cases. St. 1962, c. 453. For the
first time, the court had a duty to consider the degree of guilt
and was given the power to direct the entry of a verdict of a
lesser degree of guilt. Id. In the first case to apply the
1962 amendment, the court explained its new power:
whether the recommended change would place any undue burden on
the Supreme Judicial Court, the report noted that "[s]uch a
power exists in appellate courts in England and Scotland" and it
cited a survey done by two professors that reported that
appellate courts in twenty-two States exercised similar powers.
Thirteenth Report of the Judicial Council, supra at 29.
13
"If upon our examination of the facts, we should, in our
discretion, be of opinion that there was a miscarriage of
justice in convicting the defendant of murder in the first
degree, and that a verdict of guilty of murder in the
second degree or of manslaughter would have been more
consonant with justice, it is now our power and duty so to
declare. This is a power which the trial court does not
have."
Commonwealth v. Baker, 346 Mass. 107, 109 (1963).
Before the 1962 amendment, a murder case did not remain a
"capital case" under §33E after a verdict of guilty of murder in
the first degree unless there was a recommendation that the
death penalty be imposed. Baker, 346 Mass. at 109 n.1. After
the 1962 amendment until 1979, a capital case under § 33E was
one in which a defendant was tried on an indictment for murder
in the first degree and convicted of murder in either the first
or second degree.
In 1979, § 33E was amended to eliminate special review by
this court of convictions of murder in the second degree based
on indictments charging murder in the first degree. St. 1979,
c. 346, § 2. The special rules for murder in the first degree
in § 33E are rooted in the fact that the crime is the most
heinous cognizable under law and the sentence of death (now life
in prison without the possibility of parole) was the most severe
punishment imposed. Dickerson v. Attorney Gen., 396 Mass. 740,
744 (1986) ("Th[e] uniquely thorough review of first degree
murder convictions is warranted by the infamy of the crime and
14
the severity of its consequences").11 During the seven-year
period between the creation of the Appeals Court in 1972, see
G. L. c. 211A, § 1, and the removal of convictions of murder in
the second degree from the definition of "capital case," the
respective roles of the two courts were being clarified. See
G. L. c. 211A, § 10 (granting Appeals Court concurrent appellate
jurisdiction with Supreme Judicial Court unless otherwise
limited). This court, in an abundance of caution about whether
the Appeals Court had power of special review under § 33E,
"regularly used [its] sua sponte power of transfer with respect
to such appeals after they were entered in the Appeals Court."
Commonwealth v. Davis, 380 Mass. 1, 13 (1980). There is no
longer be any doubt that the Appeals Court is capable of
providing plenary review of "capital cases." Based on the plain
language of the statute and this court's reasoning that not
every statutory reference to "the supreme judicial court" is a
literal reference to this court, see Commonwealth v. Friend, 393
11In Commonwealth v. Davis, 380 Mass. 1, 13-14 (1980), the
court considered the possible reasoning for removing murder in
the second degree from the statute, "The amendment of § 33E,
eliminating the special review of the category of second degree
convictions based on first degree indictments, may have been a
response to the fact that such a conviction results in a
sentence (life imprisonment with a possibility of parole after
fifteen years) no more severe than sentences on convictions of
various other crimes for which the special review has not been
provided."
15
Mass. 310, 312 (1984), we conclude that the Appeals Court also
has the power and authority to conduct plenary review.12
In 2012, the Legislature again amended § 33E to include
"the third conviction of a habitual offender under" G. L.
c. 279, § 25 (b). G. L. c. 278, § 33E, as amended by St. 2012,
c. 192, § 44. This act "relative to sentencing and improving
law enforcement tools" has the explicit purpose of
"strengthening . . . the laws relative to habitual offenders,"
and "provid[ing] additional law enforcement tools." St. 2012,
c. 192. We next consider this statutory amendment in light of
the history and development of the Appeals Court as well as the
purpose of G. L. c. 211A, § 10.
2. Creation of the Appeals Court and jurisdiction under
G. L. c. 211A, § 10. In 1972, the Legislature created the
Appeals Court as the Commonwealth's intermediate appellate
court. G. L. c. 211A, inserted by St. 1972, c. 740. The
Appeals Court "substantially reduced" the "intolerable caseload"
of the Supreme Judicial Court and allowed this court "to
concentrate on those appeals involving novel or serious legal
issues of general application and broad impact".13 Tauro, The
12See discussion, infra.
13The creation of the Appeals Court came on the heels of
over a century of increased recognition of the high volume of
this court's caseload. See Report of the Commission to
Investigate the Causes of Delay in the Administration of Justice
in Civil Actions 13-14, 1910 House Doc. No. 1050. See generally
16
State of the Judiciary, 57 Mass. L.Q. 209, 213 (1972). See
Johnedis, The Founding of the Massachusetts Appeals Court, 1
Sup. Jud. Ct. Hist. Soc'y J. 44, 60 (1995).
The Legislature provided the Appeals Court with "concurrent
appellate jurisdiction with the supreme judicial court, to the
extent review is otherwise allowable . . . except in review of
convictions for first degree murder" (emphasis added). G. L.
c. 211A, § 10. See Johnedis, Massachusetts' Two-Court Appellate
System: A Decade of Development, 67 Mass. L. Rev. 103, 103-105
(Fall 1982) (Two-Court Appellate System) (discussing scope of
jurisdiction and power of Appeals Court).
In determining whether § 10 allows for appeals by habitual
offenders to be entered in the Appeals Court in the first
instance, we examine § 33E in conjunction with G. L. c. 211A,
Johnedis, The Founding of the Massachusetts Appeals Court, 1
Sup. Jud. Ct. Hist. Soc'y J. 44 (1995). In 1927, the Judicial
Council noted in its report to the Governor that this court's
appellate case load was "far in excess of what should be
expected, or required, of them." See Third Report of the
Judicial Council, supra at 43. However, the Judicial Council
rejected a proposal to create an intermediate appellate court at
that time. Id. at 45-46. "[A]ppeals continued to pour into the
Supreme Judicial Court in great numbers, presenting issues of
increasing difficulty," and in 1967, the Judicial Council began
taking steps to create an intermediate appellate court. See
Johnedis, supra at 47, 49. See id. at 44, 47 & n.25, 49-53
(discussing reasons for increased appellate caseload leading to
Appeals Court's creation). Once the idea of creating an
intermediate appellate court gained momentum, enacting
legislation was drafted, and Governor Francis W. Sargent and
Supreme Judicial Court Chief Justice G. Joseph Tauro advocated
for the legislation's enactment. See id. at 57-59.
 17
§ 10 "in the context of the entire statutory scheme and the
historical background of the relevant provisions." Friend, 393
Mass. at 312. Because this court's existence predated the
establishment of the Appeals Court by almost three centuries,
"[m]ost statutes authorizing appeals from decisions in the lower
courts were originally drafted prior to the formation of the
Appeals Court in 1972."14 Id. at 312. See Johnedis, Two-Court
Appellate System, supra at 104. See, e.g., Commonwealth v.
Ortiz, 425 Mass. 1011, 1012 (1997) (Commonwealth's appeal
pursuant to G. L. c. 278, § 28E, from Superior Court order
dismissing indictment was properly entered in Appeals Court in
first instance and should not have been entered in this court).
14General Laws c. 211A, § 5, provided the Appeals Court
with the power and authority necessary to fulfill its
obligations, and early on the Appeals Court addressed the
application of statutes that by their terms or through
interpretation had applied to the Supreme Judicial Court. See
G. L. c. 211A, § 5 ("The appeals court shall be vested with all
powers and authority necessary to carry into execution its
judgments, decrees, determinations and orders in matters within
its jurisdiction according to the rules and principles of common
law and the Constitution and laws of the commonwealth, and
subject to the appellate jurisdiction, supervision and
superintendence of the supreme judicial court"); Rooney v.
Sletterink, 4 Mass. App. Ct. 124, 126 (1976) ("Ordinarily,
statutes which were in effect prior to the establishment of [the
Appeals Court, see G. L. c. 211A, inserted by St. 1972, c. 740,]
and which are related to proceedings on appeal to the Supreme
Judicial Court, are applicable to [the Appeals Court]");
Paananen v. Rhodes, 1 Mass. App. Ct. 12, 15 n.4 (1972) (statute
applicable by its terms to Supreme Judicial Court made
applicable to Appeals Court by G. L. c. 211A, § 5).
18
Requiring habitual offender appeals to be entered in and
decided by this court in the first instance, rather than direct
entry in the Appeals Court, would ignore both the purpose for
the creation of the Appeals Court and the plain language of
single exception to concurrent jurisdiction for first-degree
murder appeals in G. L. c. 211A, § 10.15 See Davis, 380 Mass. at
13; Commissioner of Correction v. Superior Court Dep't of the
Trial Court for the County of Worcester, 446 Mass. 123, 124
(2006) ("Statutory language should be given effect consistent
with its plain meaning. Where, as here, that language is clear
and unambiguous, it is conclusive as to the intent of the
Legislature").
15The defendant argues that it is "incongruous" to make
§ 25 (b) appeals subject to plenary review by the Appeals Court
because when § 10 was written the only capital cases were first-
degree murders. His assertion is only partially accurate. As
discussed supra, at the time G. L. c. 211A, § 10, was enacted,
G. L. c. 278, § 33E, defined a "capital case" as one in which
the defendant was "tried on an indictment for murder in the
first degree and was convicted of murder either in the first or
second degree." See, e.g., G. L. c. 278, § 33E, as amended
through St. 1962, c.453. Following the passage of G. L.
c. 211A, § 10, in 1972, although second-degree murder cases
still qualified as "capital cases" under § 33E, they were
nevertheless entered in the Appeals Court because G. L. c. 211A,
§ 10, provided for the Appeals Court's concurrent jurisdiction
in all appeals other than first-degree murder appeals. See
Davis, 380 Mass. at 12-13; Johnedis, Massachusetts' Two-Court
Appellate System: A Decade of Development, 67 Mass. L. Rev.
103, 105 (Fall 1982).
19
3. Guidance to the Appeals Court when performing § 33E
review. To assist the Appeals Court in exercising § 33E review,
we summarize the provisions of § 33E review as applied to first-
degree murder convictions, determine which convictions under
G. L. c. 279, § 25 (b), are entitled to § 33E review, and
prescribe which provisions of § 33E review are applicable to
those convictions.16
a. Defining § 33E review of first-degree murder
convictions.17 Defendants in first-degree murder cases have a
direct appeal to the Supreme Judicial Court as of right under
§ 33E, Trigones v. Attorney Gen., 420 Mass. 859, 863 (1995), and
these cases are excluded from Appeals Court jurisdiction under
G. L. c. 211A, § 10. Section 33E review grants this court the
power to (i) conduct plenary review of a defendant's case on
direct appeal; (ii) reduce a defendant's conviction to a lesser
16Additionally, our decision -- that appeals from the third
conviction of a habitual offender are to be entered first in the
Appeals Court -- does not preclude this court from considering
those cases with novel issues or issues of public concern,
before they are heard and decided by the Appeals Court, via
direct review (either on application for direct appellate review
of a party or by exercising our power to transfer cases on our
own initiative), nor does it preclude us from entertaining a
case on further appellate review after it has been heard and
decided by the Appeals Court.
17For a detailed description of the scope of this court's
powers under G. L. c. 278, § 33E, see J.M. Greaney and J.F.
Comerford, The Law of Homicide in Massachusetts, at 255-259 (2d
ed. 2016).
20
degree of guilt or mandate a new trial; and (iii) require a
finding by a judicial gatekeeper that the appeal from an order
on a motion for a new trial presents new and substantial issues
before it may be considered by the full court. Defendants whose
direct appeals are subject to § 33E also are afforded, by court
rules, certain liberties regarding the time allowed for filing a
brief and for oral argument.
i. Plenary review. Plenary review means that in direct
appeals that are subject to § 33E, the court is required to
review the entire case on the law and the facts, which includes
a reading of the entire trial record. See, e.g., Commonwealth
v. Healy, 393 Mass. 367, 385-386 (1984), S.C., 438 Mass. 672
(2003) (reviewed 3,500 trial transcript pages). Moreover, the
court must review the entire record in every capital case
regardless of whether the defendant has specifically requested
such review. See, e.g., Commonwealth v. Goudreau, 422 Mass.
731, 735 (1996); Commonwealth v. Johnson, 422 Mass. 420, 429-430
(1996). See also Commonwealth v. Wade, 428 Mass. 147, 148
(1998), S.C., 467 Mass. 496 (2014) and 475 Mass. 54 (2016). We
may ask the parties to brief an issue that neither party raised
on appeal. See Commonwealth v. Gunter, 427 Mass. 259, 260-261
(1998), S.C., 456 Mass. 1017 (2010), and 459 Mass. 480, cert.
denied, 565 U.S. 868 (2011). Thus, the court has the authority
to grant relief because of an error that the defendant did not
21
raise at trial or on appeal. See, e.g., Commonwealth v.
Anderson, 425 Mass. 685, 691 (1997); Goudreau, supra at 735.
Regarding unpreserved or unargued errors, we first
determine whether an error occurred and, if so, examine the
record to determine whether the error created a substantial
likelihood of a miscarriage of justice by having "likely to have
influenced the jury's conclusion." Commonwealth v. Goitia, 480
Mass. 763, 768 (2018), quoting Commonwealth v. Wright, 411 Mass.
678, 682 (1992), S.C., 469 Mass. 447 (2014). Such an error
would mandate that we exercise our authority under § 33E either
to reduce the sentence or order a new trial. We note, however,
that this power is not without limitation.
"Neither the conventional type of appellate review
permitted in a criminal case, nor the special type
prescribed by G. L. c. 278, § 33E, for a 'capital case,' is
intended to afford an opportunity, from the vantage point
of hindsight, to comb the trial record for interesting
questions which could have been, but in fact were not,
raised at the trial, or to attempt to convert the
consequences of unsuccessful trial tactics and strategy
into alleged errors by the judge."
Commonwealth v. Johnson, 374 Mass. 453, 465 (1978), S.C., 409
Mass. 405 (1991). See Commonwealth v. Gricus, 317 Mass. 403, 406
(1944) ("Th[e] statute opens the facts as well as the law for
our consideration. It does not, however, convert this court
into a second jury, which must be convinced beyond a reasonable
doubt of the guilt of the defendant by reading the reported
22
evidence, without the advantage of seeing and hearing the
witnesses").
ii. Reduction of verdict. This court may overturn a
conviction and remand the case to the Superior Court for a new
trial or reduce a conviction of murder in the first degree to a
conviction on a lesser charge, for any reason that justice may
require. See G. L. c. 278, § 33E, as amended by St. 1962,
c. 453. (allowing Supreme Judicial Court to enter verdict of
lesser degree of guilt). However, despite errors in a trial,
this court may decline to reduce a defendant's conviction if the
evidence against the defendant is overwhelming and no
substantial likelihood of a miscarriage of justice exists. See
Commonwealth v. Sanna, 424 Mass. 92, 108 (1997).
Significantly, this court grants relief under § 33E
extremely rarely and only in the most extraordinary
circumstances.
"From 2001-2010, a total of 282 first-degree murder cases
entered into the Supreme Judicial Court. Of these, the
court reversed or reduced only twenty-three, a reversal
rate of 8.2%. But ten of these reversals, almost half,
came in 2009 and 2010. Without these exceptional years,
the reversal rate (from 2001-2008) was actually only
5.94%."
Allen, supra, at 993.18
18"During the 2000s, the Appeals Court reversed eleven of
the sixty-three second-degree murder cases it reviewed, 17.5%.
The [Supreme Judicial Court (SJC)] . . . reversed an additional
four cases. All these appeals, whether disposed in the Appeals
Court, directly in the SJC, or reviewed by the SJC after an
23
We have conducted a comprehensive but nonexhaustive search
of cases on appeal between 2011 and 2019 where a defendant was
convicted of murder in the first degree. Of approximately 296
cases, we reversed convictions thirty-seven times. However, we
discovered only four cases in which we exercised our power under
§ 33E to reverse the conviction, i.e., only 1.35 percent of the
total number of appeals. In each of the four cases, we then
reduced the verdict.19 See Commonwealth v. Dowds, 483 Mass. 498,
initial appeal of right to the Appeals Court, were heard under
ordinary criminal procedure, including the rule that issues not
raised at trial are waived upon appeal. Overall, the reversal
rate (out of the total seventy appeals) was 21.4%. This survey
strongly suggests that ordinary criminal procedure offers
greater hope for defendants seeking appellate relief pursuant to
section 33E."
Allen, supra at 993-994.
See Brandt & DeJuneas, Special Considerations in Criminal
Briefs, in N. Quenzer & F. Spina, Appellate Practice in
Massachusetts, 15.3.4 (4th ed. Mass. Cont. Legal Educ. 2016)
("It must be acknowledged, however, that in recent years the
Supreme Judicial Court appears to be more reluctant to reduce
the degree of guilt than it was in the past . . . Between 1980
and 1992, the court ordered a verdict reduction ten times in a
total of 312 direct appeals from murder convictions. In
contrast, between 1998 and 2008 the court decided 280 first-
degree murder appeals and did not use its [§] 33E powers to
reduce the verdict in a single one").
19In three other cases we examined, although the
defendants' convictions were upheld, their sentences were
reduced pursuant to this court's decision in Diatchenko v.
District Attorney for the Suffolk Dist., 466 Mass. 655, 658, 674
(2013), S.C., 471 Mass. 12 (2015) (sentencing of juveniles
convicted of murder in first degree to life without meaningful
opportunity for parole violates Massachusetts Constitution).
24
499 (2019) (verdict reduced to murder in second degree where
defendant had brain injuries that affected cognition and
behavior); Commonwealth v. Salazar, 481 Mass. 105, 120 (2018)
(verdict reduced to murder in second degree where evidence of
deliberate premeditation was "far from compelling," intoxication
defense was presented "incompletely," and prosecutor made
"inappropriate" statement about intoxication); Commonwealth v.
Vargas, 475 Mass. 338, 366-367 (2016) (verdict reduced to
voluntary manslaughter in context of senseless brawl);
Commonwealth v. Berry, 466 Mass. 763, 773-774 (2014) (verdict
reduced to murder in second degree where defendant had history
of mental illness and brain tumor that affected behavior).
This court's authority to reduce a conviction of murder in
the first degree in the interest of justice "should be used
sparingly and with restraint."20 Commonwealth v. Brown, 477
See Commonwealth v. Fernandez, 480 Mass. 334, 347-348 (2018);
Commonwealth v. Ray, 467 Mass. 115, 139-140 (2014); Commonwealth
v. Keo, 467 Mass. 25, 46-47 (2014).
20Some authors have argued that the benefit defendants
receive pursuant to § 33E review is outweighed by the burden it
puts on the court and the limitation it creates on future
appeals in first-degree murder cases. See Allen, supra at 979
(§ 33E review "serves no justifiable purpose; rather, it
routinely dumps meritless, automatic appeals onto the docket of
the high court"). See also Hartung, The Limits of
"Extraordinary Power": A Survey of First-Degree Murder Appeals
under Massachusetts General Laws Chapter 278, Section 33E, 16
Suffolk J. Trial & App. Advoc. 1, 29 (2011); id. at 7-8 ("Given
the expansive protections available to the defendant under
Section 33E, the potential exists for a significant number of
25
Mass. 805, 824 (2017), cert. denied, 139 S. Ct. 54 (2017)
(reducing conviction to murder in second degree where defendant
was involved only in "remote outer fringes" of joint venture).
Accordingly, we have reduced convictions only in the most
compelling circumstances. See, e.g., Commonwealth v. Dowds, 483
Mass. 498, 512-513 (2019) (reducing conviction to murder in
second degree where "uncommon facts" of defendant's two severe
brain injuries were not presented to jury); Commonwealth v.
King, 374 Mass. 501, 506-508 (1978) (reducing verdict where
there was little evidence of deliberate premeditation and judge
omitted critical instruction regarding voluntary intoxication).
iii. Gatekeeper. "Given the broad plenary review which
capital defendants receive on direct appeal, there is a
'rational basis' for restricting their ability to appeal
first-degree murder convictions to be reduced or reversed.
However, the results of [our survey] indicate the opposite
conclusion"); Note, Populism and the Rule of Law: Rule 25 (b)
(2) of the Massachusetts Rules of Criminal Procedure and the
Historical Relationship Between Juries and Judges in the
Commonwealth's Trial Courts, 34 Suffolk U.L. Rev. 125, 136
(2000) ("The SJC, indicating a respect for the deeply-rooted
tradition of the right to trial by jury in Massachusetts, has
rarely unleashed the extraordinary equitable power entrusted to
it. The SJC, in an attempt to reassert its deference towards
jury verdicts, instructed trial courts to use this same measure
of restraint in the exercise of their verdict reformation
authority"); Note, What Justice Requires: Equal Protection
Clause Issues with the Massachusetts Supreme Court's 33E Powers,
52 Suffolk U.L. Rev. 319, 331 (2019) ("Despite having the power
to reduce verdicts when it determines justice so requires, the
SJC actually uses its verdict-reduction power quite rarely").
26
subsequent postconviction motions." Dickerson, 396 Mass. at
744. This restriction comes in the form of the "gatekeeper"
provision of G. L. c. 278, § 33E, which requires that defendants
convicted of murder in the first degree obtain leave from a
single justice of the Supreme Judicial Court to appeal a
postconviction motion after their direct appeal has been
decided.21 Commonwealth v. Gunter, 459 Mass. 480, 487, cert.
denied, 565 U.S. 868 (2011). In order to obtain this additional
review, a defendant must show that there is a "new and
substantial" issue that this court could not have considered in
the course of its plenary review in the direct appeal. Id.,
quoting G. L. c. 278, § 33E. As detailed in Gunter, supra:
"The bar for establishing that an issue is 'substantial' in
the context of the gatekeeper provision of § 33E is not
high. It must only be a meritorious issue in the sense of
being worthy of consideration by an appellate court. . . .
At the same time, an issue must also be 'new' to pass the
gatekeeper's inspection. This presents a more significant
hurdle. An issue is not 'new' within the meaning of G. L.
c. 278, § 33E, where either it has already been addressed,
or where it could have been addressed had the defendant
properly raised it at trial or on direct review. The
statute requires that the defendant present all his claims
of error at the earliest possible time, and failure to do
so precludes relief on all grounds generally known and
available at the time of trial or appeal" (citations and
quotations omitted).
The statute also designates that any motions for a new
21
trial filed while the direct appeal is pending must be filed in
this court. G. L. c. 278, § 33E.
27
The ruling of a single justice, acting as a gatekeeper, that the
application does not present a new and substantial question is
final and unreviewable by the full court. Leaster v.
Commonwealth, 385 Mass. 547, 548-549 (1982). A single justice
of the Supreme Judicial Court is in the best position to conduct
this review "[d]ue to [this court's] familiarity with the case."
Dickerson, supra at 744.
iv. Special considerations. Finally, a defendant on
direct appeal from a first-degree murder conviction is afforded
other special considerations with regard to the filing of
briefs, issue selection,22 and time allotted for oral argument.
Although an appellant's brief in a noncapital case is due forty
days after the case is entered on the appellate court's docket,
Mass. R. A. P. 19 (a) (1), as appearing in 481 Mass. 1642
(2019), an appellant in a first-degree murder appeal is allotted
120 days, Mass. R. A. P. 19 (c) (1). Additionally, Mass. R. A.
P. 22 (b), as appearing in 481 Mass. 1651 (2019), affords each
22 "While the usual task of an appellate lawyer is to weed
out the weak claims and brief only the stronger claims . . .
this rule does not appear to apply in a first-degree murder
appeal. All colorable claims should be raised and briefed,
keeping in mind the broad canvas of plenary review. This does
not, of course, mean giving equal attention to the strong and
the weak. It means that even a small issue, covering one page
and tucked at the end of a section or on its own at the back of
the brief, will receive the court's consideration and, given the
stakes, should not be omitted." Brandt & DeJuneas, supra at
15.3.2.
28
party an additional five minutes of oral argument (for a total
of twenty minutes per side).
b. The powers and provisions of § 33E review as applied to
third convictions of habitual offenders under G. L. c. 279,
§ 25 (b). In order to construct the bounds of § 33E review in
the context of G. L. c. 279, § 25 (b), we must first determine
whether every third conviction of a habitual offender is
entitled to this unique review, or whether, as suggested by the
history and evolution of § 33E, the Legislature intended to
limit this review to only those convictions resulting in a
mandatory life sentence -- i.e., those with the same punishment
as a first-degree murder conviction. We conclude it is the
former.
"It is a well-established canon of construction that, where
the statutory language is clear, the courts must impart to the
language its plain and ordinary meaning" (emphasis added).
Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534,
537 (1992). "The words of a statute are the main source from
which we ascertain legislative purpose . . . ." Foss v.
Commonwealth, 437 Mass. 584, 586 (2002). "The language of a
statute is not to be enlarged or limited by construction unless
its object and plain meaning require it." Rambert v.
Commonwealth, 389 Mass. 771, 773 (1983). When the Legislature
amended G. L. c. 278, § 33E, in 2012 to expand the definition of
29
"a capital case," it inserted the words "or (ii) the third
conviction of a habitual offender under [G. L. c. 279, § 25
(b)]." We conclude that it is apparent from the plain meaning of
this language that the Legislature intended for all of the
enumerated offenses under G. L. c. 279, § 25 (b), to be included
in this definition.
Although the habitual offender designation stems from a
wide range of crimes as delineated in G. L. c. 279, § 25 (b),
the statute provides that for any third conviction, a defendant
must "be imprisoned . . . for the maximum term provided by law
for the offense" of which the defendant has been presently
convicted, and similar to the sentence for a first-degree murder
conviction, is not eligible for parole.23 The legislative
history reveals that the struggle to present a "balanced bill"
to the Governor resulted in attempts to "narrowly target[] a
small class of violent habitual offenders[s]," and that in order
to alleviate concerns about wrongful convictions, § 33E was
amended as a "safety valve." State House News Service, House
Session, July 30, 2012 (Statement of Rep. David P. Linsky).
23For example, the mandatory sentence for a defendant with
two prior qualifying offenses who then commits attempted murder
in violation of G. L. c. 265, § 16, is twenty years in State
prison. But a defendant whose third conviction is for an
assault and battery causing bodily injury in violation of G. L.
c. 265, § 13A (b) (i), must be sentenced to a mandatory five
years in State prison.
30
Therefore, because the plain meaning of and the legislative
intent behind § 33E require it, all third convictions of
habitual offenders under G. L. c. 279, § 25 (b), will be subject
to the court's broad powers of plenary review. Accordingly, the
Appeals Court will
"consider the whole case, both the law and the evidence, to
determine whether there has been any miscarriage of justice
[and it will] consider questions raised by the defendant
for the first time on appeal, or even . . . address issues
not raised by the parties, but discovered as a result of
[its] own independent review of the entire record"
(citations omitted).
Dickerson, 396 Mass. at 744.
This court's extensive history and case law describing the
various standards of review pursuant to § 33E may serve as a
guide.
With regard to the gatekeeper provision of § 33E, the
statute mandates that the single justice review any application
for leave to pursue a postconviction appeal to determine whether
it presents a new and substantial question. G. L. c. 278,
§ 33E. Considering the extensive plenary review that the
Appeals Court will conduct, the interest of judicial economy
will be best served by maintaining a gatekeeping function. See
Dickerson, 396 Mass. at 744. However, as the Appeals Court will
be the court that is most familiar with the entire record, we
again interpret the reference to a single justice of the
"supreme judicial court" in § 33E, in conjunction with G. L.
31
c. 211A, § 10, to allow for these applications to be screened by
a single justice of the Appeals Court.
The Appeals Court's ability to reduce the verdict of a
third conviction of a habitual offender under § 33E presents a
slightly more complicated question. The statutory language
provides that the court may "order a new trial" or "direct the
entry of a verdict of a lesser degree of guilt" and remand for
resentencing if the court is (1) "satisfied that the verdict was
against the law or the weight of the evidence," or (2) based on
"newly discovered evidence," or (3) "for any other reason that
justice may require." G. L. c. 278, § 33E. Given the varying
nature of the crimes enumerated in G. L. c. 279, § 25 (b), we
conclude that declaring a verdict of a "lesser degree of guilt"
can mean two things in this context: the Appeals Court may
uphold the verdict as it stands, but direct the Superior Court
to impose another sentence less than the maximum term as
otherwise required by § 25 (b); or the Appeals Court may reduce
the verdict to a lesser included offense and direct the Superior
Court to impose a new sentence consistent with the new verdict.24
24In this context, we also interpret "lesser degree of
guilt" to allow the Appeals Court to vacate a sentence under
G. L. c. 279, § 25 (b), and impose a sentence under § 25 (a).
Although G. L. c. 279, § 25, is a sentencing enhancement
statute, and therefore § 25 (a) cannot be a lesser included
offense of § 25 (b), we recognize that there is a lower burden
of proof for the Commonwealth under § 25 (a). Section 25 (a)
encompasses a wider range of crimes (i.e., all felonies), and
32
Additionally, if the Appeals Court concludes that there was no
injustice to be remedied on the present conviction, but there
was a failure of proof on the habitual offender enhancement, it
may vacate the sentence and remand the matter to the trial court
for resentencing.
In sum, a defendant's direct appeal from a third conviction
under the habitual offender statute, G. L. c. 279, § 25 (b), is
to be entered directly in the Appeals Court, which will be
required to complete § 33E review as described supra. In
addition to having the power to order a new trial, the Appeals
Court will have the authority to remand the case for
resentencing. A single justice of the Appeals Court will act as
a gatekeeper on postconviction motions after rescript.
However, in the interests of efficient administration of
justice, "[w]e retain jurisdiction in the instant case and reach
under § 25 (a), "predicate convictions arising from separate
qualifying criminal indictments or episodes need not [have been]
separately prosecuted in order for a person to be considered a
habitual criminal." Commonwealth v. Ruiz, 480 Mass. 683, 690
(2018). See id. at 688-689 (comparing with § 25 [a] with
§ 25 [b], which requires that prior charges have been separately
brought and tried).
The Appeals Court may find that a mandatory maximum is
still warranted, but that justice requires the availability of
probation, parole, work release, or good conduct deductions,
which are only available under § 25 (a). Therefore, the Appeals
Court may, in certain circumstances, appropriately reduce a
defendant's sentence by directing the trial court to resentence
under G. L. c. 279, § 25 (a).
33
the defendant's claims." Commonwealth v. Balliro, 437 Mass.
163, 165 (2002).
4. Claims concerning the defendant's trial. a.
Impermissible waiver of jury trial. The defendant argues that
he was impermissibly allowed to waive his right to a jury trial
on the sentencing enhancement provisions of the indictments.25
He argues that this was in violation of G. L. c. 263, § 6, which
expressly states that a defendant may not waive his right to a
jury trial in a capital case. Since this court has already
stated that "the §33E definition of 'capital case' governs the
meaning of that phrase in c. 263, § 6," Commonwealth v. O'Brien,
371 Mass. 605, 606-607 (1976), he asserts that he was precluded
from opting for a bench trial. The Commonwealth argues that the
"third conviction" language contained in G. L. c. 278, § 33E,
refers to the "underlying case on the third strike" and not the
subsequent trial on the enhancement. According to the
Commonwealth, the defendant was not precluded from waiving his
right to a jury and being tried by a judge for the sentencing
portion. We agree.
Although it is true that the definition of "capital case"
in G. L. c. 278, § 33E, governs the meaning of "capital case" as
25The defendant was tried and convicted by a jury on the
underlying crimes, but chose to waive his right to a jury during
the subsequent sentencing enhancement trial.
34
it appears in G. L. c. 263, § 6, based on our holding in
O'Brien, 371 Mass. at 606-607, § 33E defines a "capital case" to
include "the third conviction of a habitual offender under
[G. L. c. 279, § 25 (b)]." This "third conviction" is
referenced in the statute as a prerequisite to receiving an
enhanced sentence as a habitual offender under G. L. c. 279,
§ 25 (b). In other words, in order for a defendant to be
sentenced as a habitual offender, there must be a conviction of
one of the offenses enumerated by clause (i) of G. L. c. 279,
§ 25 (b). The Commonwealth must then prove that the defendant
had been convicted twice previously of one of the offenses
enumerated by clause (i), that the defendant was sentenced to
incarceration at a State prison or State or Federal correctional
facility for at least three years on each of the two prior
convictions, and that the defendant had not been pardoned for
either offense on the grounds that he or she was innocent.
G. L. c. 279, § 25 (b). This sentencing phase of a defendant's
trial is separate and distinct from the trial for his or her
third conviction. See Commonwealth v. Richardson, 469 Mass.
248, 252 (2014) ("Statutes providing for enhanced sentencing
based on a defendant's prior convictions do not create
35
independent crimes, but enhance the sentence for the underlying
crime"[quotation and citations omitted]).26
As the Commonwealth argues, this is consistent with the
rationale articulated in Commonwealth v. Francis, 450 Mass. 132,
135-136 (2007), S.C., 477 Mass. 582 (2017), in which the
justification for the Legislature's desire to treat defendants
facing a charge of murder in the first degree differently from
other criminal defendants was explained. "The Legislature has
determined that, when a defendant chooses to go to trial in such
a case, the facts must be found by a jury rather than by 'one
[person]'" (citation omitted). Id. at 136.
Therefore, where a defendant has been subject to an
enhanced sentence as a habitual offender, he or she would not be
entitled to waive his or her right to a jury trial on the
indictment charging a crime that could lead to a third
conviction pursuant to G. L. c. 263, § 6. However, a defendant
26The defendant argues that the Commonwealth invaded the
province of the judiciary by filing a nolle prosequi on the
habitual criminal portion of the indictments and seeking
sentencing on the habitual offender portions. We have already
detailed the procedure to be followed when a defendant is
charged with multiple sentencing enhancement provisions
applicable to a single underlying offense. See Commonwealth v.
Richardson, 469 Mass. 248, 254-255 (2014). Additionally, the
principle of the separation of powers requires that it be
exclusively within the power of the executive branch to
determine who and what crimes to prosecute. Because the
Commonwealth appropriately filed a nolle prosequi prior to
sentencing, we find no error.
36
is entitled to waive his or her right to a jury trial during the
sentencing phase, especially given its technical nature, as long
as the judge conducts a colloquy, advises the defendant of his
or her constitutional right to a jury trial, and is satisfied
that any waiver by the defendant, which must be memorialized in
writing, is made voluntarily and intelligently. See Ciummei v.
Commonwealth, 378 Mass. 504, 509-510 (1979).
Here, after the verdict was announced, the judge asked
defense counsel if the defendant had decided whether to proceed
with a jury or a jury-waived trial for the sentencing
enhancement portion. Defense counsel requested time to discuss
the issue with the defendant, after which the defendant appeared
with counsel and informed the judge that it was his intention to
waive a trial by jury. The judge then conducted a colloquy with
the defendant, reviewed the written waiver form with the
defendant, which the defendant signed, and accepted the waiver
as "made voluntarily, intelligently, and with knowledge of its
consequences." The waiver was valid.27
27 The defendant also argues that in order to be sentenced
as a habitual offender, he must have been previously convicted
twice of the same offense for which he was just convicted. This
argument defies logic and the plain language of the statute. We
construe G. L. c. 279, § 25 (b), to mean that a person with
three convictions of any combination of the enumerated offenses
may be sentenced as a habitual offender, provided the other
requirements of § 25 (b) are met.
37
b. Individual voir dire on interracial rape. The
defendant, an African-American, filed a pretrial motion for
individual voir dire on the grounds that this case involved
allegations of interracial rape. At the motion hearing, the
judge acknowledged that the charge of interracial rape required
individual questioning at sidebar, but he was uncertain as to
"what question or questions are supposed to be asked." The
judge then suggested posing questions on a one-page
questionnaire that would "supplement" what he asked. In
response, defense counsel stated that he used a questionnaire at
another trial and "it actually worked pretty well, so I am not
opposed to doing it"; he went on to say that it even "may be
beneficial" as long as the jurors were brought into the court
room individually. The juror questionnaire included both
general questions about racial prejudice and more specific
questions, such as, "Would you tend to believe the testimony of
a white person over that of a black person, or the testimony of
a black person over that of a white person, based on the
witnesses' race?" and
"In this case, the defendant and the alleged victim are of
different races: the defendant is African-American, and
the alleged victim is Caucasian. Knowing that, would this
fact interfere in any way with your ability to render a
true and just verdict based solely on the evidence and the
law?"
38
Defense counsel subsequently submitted his input on the
questionnaire to the court and never raised the issue again
during the three days of jury selection that included attorney-
conducted individual voir dire.
On appeal, the defendant argues that a new trial is
warranted because the judge failed to conduct an individual voir
dire of the prospective jurors on the issue whether they could
be impartial where the defendant is African-American and the
victim is Caucasian. The Commonwealth acknowledges that a judge
is required, on request, to question potential jurors
individually in a case involving interracial rape, but asserts
that the defendant's request here was waived when he agreed to
pose certain questions by questionnaire. The Commonwealth
further argues that even if the defendant's request was not
waived, the defendant cannot show prejudice because the jurors
were subject to individual voir dire and the evidence against
the defendant was overwhelming.
In cases involving interracial rape, because of the
"substantial risk that extraneous issues will influence the
jury," individual questioning with respect to racial prejudice,
on request, is mandatory. See Commonwealth v. Sanders, 383
Mass. 637, 640-641 (1981), overruled in part on another ground
in Commonwealth v. Ramirez, 407 Mass. 553 (1980). The court in
Sanders, supra, further explained:
39
"Although . . . interrogation of jurors as to racial
prejudice is not constitutionally mandated . . . , we think
it should be held in cases tried hereafter that as a matter
of law interracial rape cases present a substantial risk
that extraneous issues will influence the jury and hence
are within [G. L. c. 234, § 28].[28] Under the 1975
amendment, this means that prospective jurors are to be
interrogated individually in accordance with the statute
rather than as a group. . . . The judge has broad
discretion as to the questions to be asked, and need not
put the specific questions proposed by the defendant.
Commonwealth v. Walker, 379 Mass. 297, 300 (1979), and
cases cited."
Here, defense counsel agreed to the judge's request to use
a questionnaire as long as the jurors were brought individually
into the court room, which they were. Defense counsel had an
opportunity to offer feedback on the questionnaire, which the
judge incorporated. He also was provided the opportunity to
question the potential jurors himself, and he often declined to
ask any questions at all. Defense counsel therefore waived his
request for the judge to individually question the jurors.
Further, the Commonwealth presented extensive evidence
supporting a finding of the defendant's guilt, and the jurors
fairly weighed the evidence against the defendant as reflected
in their acquittal on two counts. Therefore, "there appears no
28 The statute is now G. L. c. 234A, § 67A, inserted by St.
2016, c.36, § 4, and provides that to determine "if it appears
that, as a result of the impact of considerations which may
cause a decision to be made in whole or in part upon issues
extraneous to the case, . . . the juror may not stand
indifferent, the court shall, or the parties or their attorneys
may, . . . examine the juror specifically."
40
reason to believe that the jury improperly considered race in
arriving at their findings." Commonwealth v. Otsuki, 411 Mass.
218, 229 (1991).
c. Jury instructions. i. Consciousness of guilt. The
defendant argues that the judge erred by allowing the
Commonwealth to argue consciousness of guilt in its closing
argument without providing the jurors with a consciousness of
guilt instruction. He claims that the instruction was mandatory
and should have been given sua sponte. The Commonwealth argues
that the defendant was not entitled to a sua sponte instruction;
the Commonwealth requested the instruction -- not the defendant
-- and the defendant did not object to the judge's denial of
this request.29
In Commonwealth v. Cruz, 416 Mass. 27, 30 (1993), this
court held that when evidence is presented at a criminal trial
tending to show the defendant's consciousness of guilt, the
judge, on his or her own initiative, is required to instruct the
29The Commonwealth also claims it "ended up not arguing
consciousness of guilt" in its closing, but the transcripts show
otherwise:
"And when the police arrived and the defendant realized it,
he led [the victim], still naked, bleeding and blindfolded
[toward the basement]. And when the police made themselves
known in the basement, he fled out the back door, through
the back yard, and into the neighborhood behind. And he
fought with the police when they caught up to him because
he knew he was guilty."
41
jury in accordance with the instructions in Commonwealth v.
Toney, 385 Mass. 575, 585 (1982). However, in Commonwealth v.
Simmons, 419 Mass. 426, 435 (1995), we recognized that "[a]
defense attorney . . . , as a matter of trial tactics, might not
want to request a consciousness of guilt charge [because] it
would not assist the defendant's case to have the judge focus
the jury's attention on such matters." Therefore, we held that
the decision to instruct on consciousness of guilt is "left to
the sound discretion of the judge, and it will not be error if
he or she chooses not to instruct on the subject in the absence
of a request." Id. at 436.
Here, the defendant did not request a consciousness of
guilt instruction in his written request for instructions, and
he acknowledges that he did not object to the judge's denial of
the Commonwealth's request. At this point in the trial, the
defendant already had testified that he fled from the victim's
boyfriend -- not the police, which was the Commonwealth's theory
-- and the judge noted his desire to "remain neutral on that."30
The judge's concern, that providing such an instruction could
indicate that he agreed with the Commonwealth, is valid.
Because the defendant did not request a consciousness of guilt
30During closing, defense counsel repeatedly emphasized
that the defendant fled from the house to avoid a confrontation
with the victim's boyfriend and then he coincidentally
encountered the police.
42
instruction, and the judge properly exercised sound discretion,
we find no error.
ii. Aggravated rape. The defendant argues that the
aggravated rape instruction precluded the jury from determining
whether an adequate nexus existed between the rape and the
aggravating offenses because the judge instructed the jury that
the aggravating offenses did not have to take place at the same
exact time as the rape. Instead, the judge instructed the jury
that the aggravating offenses and rape only had to take place
during the "same criminal episode." Specifically, the defendant
takes issue with a portion of the judge's instruction that
"summarize[] this element":
"So, if you find the defendant guilty of rape and also
guilty on any one or more of the indictments that charge
these offenses, that is, assault and battery by means of a
dangerous weapon, assault by means of a dangerous weapon,
kidnapping and/or breaking and entering in the daytime to
commit a felony, then those findings together would
constitute aggravated rape."
The defendant did not object to this instruction.
The statutory definition of aggravated rape requires, among
other elements, forced sexual intercourse "during the commission
or attempted commission of" one of the enumerated offenses.
G. L. c. 265, § 22 (a). The judge's instructions given at the
start of trial closely mirrored the statutory definition of
43
aggravated rape.31 During the jury charge, the judge clarified
and elaborated upon that instruction by explaining,
"The word 'during' is a little bit misleading. The statute
says rape committed during certain offenses. But the rape
and the aggravated offense or offenses need not have
occurred at exactly the same time. The critical point is
not whether the aggravating acts served to compel the
complainant's submission, but whether she was subjected to
other felonious conduct during the same criminal episode.
So long as the rape and the other offense or offenses
constituted one continuous episode in course of conduct and
so long as the aggravated offense or offenses are on the
list that I'm about to give you, they transform a rape into
an aggravated rape, even if they didn't occur exactly
simultaneously with the rape itself."
The judge then gave the now objected-to instruction followed by,
"If the Commonwealth has proved the first element, sexual
intercourse, and the second element, that is, by force and
against her will, it has proved rape. If it has proved the
aggravating factor, that is -- if the Commonwealth has also
proved the aggravating factor; that is, that the rape was
committed during the same criminal episode as one of the
enumerated crimes that qualify as aggravation, then it has
proved aggravated rape."
We find no error in the judge's instruction. In Commonwealth v.
McCourt, 438 Mass. 486, 496 (2003), we found that the jury were
"entitled to consider the entire sequence of events in making
their determination whether the aggravating acts occurred in the
31 The judge instructed,
"Aggravated rape is a more serious offense than rape, and
it requires that the Commonwealth prove one additional
element beyond a reasonable doubt. In order to prove
somebody guilty of aggravated rape, the Commonwealth needs
to prove beyond a reasonable doubt that the rape . . . was
committed during the commission or attempted commission of
certain offenses."
44
course of the rape" or whether they should be viewed as separate
offenses. Here, the judge's instructions did just that. First,
he explained to the jury how they could determine whether the
aggravating offenses occurred "during" the rape, then he
reiterated what the aggravating offenses were, and he concluded
by reminding the jury that it was the Commonwealth's burden to
prove that the rape was committed "during" the same criminal
episode.
d. Dismissal of juror without extraneous influence
inquiry. Before closing arguments, a juror sent a note to the
judge that read, "I wanted you to know yesterday [the
defendant's] sister was on the bus with me and she said a few
thing[s]." The judge conducted a voir dire of the juror, and
the juror explained that the previous day she had unknowingly
spoken with the defendant's sister while waiting for the bus.
Once on the bus, the two sat next to each other and the
defendant's sister discussed various aspects of the case,
including that she had not provided the defendant with the
victim's telephone number32 and that the defendant was mistreated
by the police and hospitalized for three days after the
32 This is significant because the defendant claimed that
the victim had given him her telephone number as part of their
consensual sexual relationship, while the Commonwealth suggested
that the defendant had obtained her telephone number from his
sister.
45
encounter. When the judge inquired whether this juror had
discussed this conversation with any other jurors, she
confidently stated that she had not.33 The judge excused the
juror. In denying defense counsel's motion for a mistrial, the
judge stated that the juror "came across as very candid, and she
was quite emphatic" that she had not spoken with other jurors.
The defendant argues that the judge erred in failing to
determine the extent of an extraneous influence on the jury when
this juror was discharged, especially because the defendant's
sister and the juror spoke "at length" about the case. The
Commonwealth argues that there was no abuse of discretion where
the lone juror credibly reported that she had not discussed the
matter with anyone else on the jury and where she was
subsequently excused.
We have recently described the bounds of judicial
discretion as it pertains to the impartiality of remaining
jurors:
"A trial judge 'has discretion in addressing issues of
extraneous influence on jurors discovered during
trial.' . . . Because the determination of a juror's
impartiality is essentially one of credibility, and
therefore largely one of demeanor, [a reviewing court]
. . . 'will not disturb a judge's findings of
impartiality,' or a judge's finding that a juror is
unbiased, 'absent a clear showing of an abuse of discretion
33The judge inquired a second time, "You're sure about
that?" To which she replied, "Of course I am. One hundred
percent."
46
or that the finding was clearly erroneous'" (citations
omitted).
Commonwealth v. Colon, 482 Mass. 162, 168 (2019).
In Commonwealth v. Amran, 471 Mass. 354, 362-363 (2015), a
juror accidentally was exposed to extraneous material. The
defendant argued that the judge erred by failing to conduct a
voir dire of the remaining jurors after one had been exposed.
Id. at 363. In concluding that the judge had not abused his
discretion, the court noted that the judge was entitled to rely
on the answers of the foreperson and the juror interviewed. Id.
at 364. No additional voir dire was required. Id. Because
this case is dispositive on the issue, we find no abuse of
discretion.
5. Relief pursuant to G. L. c. 278, § 33E. Having
carefully reviewed the entire record, we discern no reason to
exercise our power under § 33E to set aside the verdict or
remand this case for resentencing.
Judgment affirmed.