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Commonwealth v. Russell

Supreme Judicial Court of Massachusetts, Essex

January 26, 2015

Gerald Russell

Argued: November 3, 2014.

Indictments found and returned in the Superior Court Department on September 18, 1990.

The cases were tried before Richard E. Welch, III, J.

The Supreme Judicial Court granted an application for direct appellate review.

Judgments affirmed.

Page 465

Eric S. Brandt, Committee for Public Counsel Services, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Alex G. Philipson, amicus curiae, submitted a brief.

Bruce Ferg, amicus curiae, submitted a brief.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.


[23 N.E.3d 869] Cordy, J.

" Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined." Commonwealth v. Webster, 59 Mass. 295, 5 Cush. 295, 320 (1850). So begins the venerable Webster charge on reasonable doubt. The Webster charge informs the jury that a reasonable doubt exists when " they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge" (emphasis supplied). Id. For more than 150 years, this charge has delivered the preferred language for explaining reasonable doubt to jurors sitting on criminal trials in the Commonwealth. Yet, it has never been required and, in this case, it was eschewed in favor of an instruction that permitted a conviction if the jury were " firmly convinced" of the defendant's guilt.

The defendant was acquitted on eighteen counts of statutory rape, but convicted on seven counts of the lesser included offense of indecent assault and battery on a child under the age of fourteen. He appeals his convictions on grounds that the charge on reasonable doubt was constitutionally inadequate and that the lesser included offenses should not have been submitted to the jury. With respect to the former, he argues that, even if the charge was constitutionally sound, we should exercise our general superintendence power to require the Webster charge in all criminal trials.

We granted the defendant's application for direct appellate review and now conclude that the judge's instruction on reasonable doubt passed constitutional muster and that there was no error in the submission of the lesser included offenses to the jury. Nonetheless, we also conclude that, pursuant to our superintendence power, a modernized version of the Webster charge must be given in criminal trials on a prospective basis. The defendant is not entitled to a special retroactive application of this new rule. Consequently, we affirm the judgments of conviction.[1]

1. Background.

We summarize the evidence presented at trial, reserving certain details for discussion of the issues on appeal. In

Page 466

1980, the defendant, who was then the boy friend and later the husband of the victim's mother, began living with the victim and her family. The victim was six years of age at that time. According to the victim, it was not long before the defendant began sexually abusing her. It began with the defendant's touching of the victim's breasts and vaginal area while she was in the bathtub. The victim testified that the abuse steadily became more invasive: the defendant placed his fingers between the folds of her genital opening, rubbed his penis between her buttocks and in her vaginal area, performed oral sex on her, and required her to perform oral sex on him.

The victim also testified that, over the course of the abuse, she observed the defendant choke, slap, and punch her mother, throw objects at her, and rip hair out of her head. The defendant told the victim that he would stop abusing her mother if the victim submitted to his advances. He said that if she told anyone about his sexual advances, the victim and her siblings would be placed in foster homes and their mother would go to jail. Nonetheless, in 1985, the victim told her mother that the defendant had been " touching" her. The victim's mother confronted the defendant, who denied the allegation.

[23 N.E.3d 870] The character of the abuse escalated in May, 1987, when the victim was approximately thirteen years of age. It was then, the victim alleged, that the defendant began having full vaginal intercourse with her in addition to the other acts previously described. The final act of abuse occurred on October 31, 1989. As a condition to going out on Halloween, the victim alleged that she was required to perform oral sex on the defendant. The victim did not return home, instead seeking the refuge of a friend -- to whom she then revealed her history of sexual abuse at the hands of the defendant.

On September 19, 1990, an Essex County grand jury returned six indictments, each charging the defendant with three counts of statutory rape, G. L. c. 265, § 23. Each indictment reflected a distinct period of time during which the rapes were alleged to have occurred, with each charge representing a distinct mode of rape during the time frame of the corresponding indictment.[2] Rather than stand trial, the defendant fled to Mexico and did not

Page 467

return until 2010. In 2012, the defendant was tried by jury in the Superior Court. The judge instructed the jury, sua sponte and over the defendant's objection, on the lesser included charge of indecent assault and battery as to seven counts reflecting the earliest incidents of alleged penile and digital penetration.[3] The judge reasoned that, " given [the victim's] state of development ... there may be an issue as to whether there was penetration or not. That does not include those charges that specify oral intercourse ... because there, again, there's not a real issue of penetration there."

The judge also gave what he said was his " traditional instruction" as to what is meant by proof beyond a reasonable doubt. Defense counsel objected to the instruction, specifically requesting the language of the Webster charge that in order to convict the jurors must feel " an abiding conviction to a moral certainty of the truth of the charges." The judge overruled the objection and submitted the case to the jury. During deliberations, the jury asked for clarification of the reasonable doubt standard. Defense counsel again asked that the jury be given the Webster charge. The judge again denied the request, electing instead to repeat his initial instruction.

On each of the eighteen counts of statutory rape, the jury found the defendant not guilty. However, on each of the seven [23 N.E.3d 871] counts of indecent assault and battery on a child, the jury found the defendant guilty. The defendant was sentenced to three consecutive and three concurrent terms of not less than nine but not more than ten years in the State prison, as well as a consecutive term of five years of probation.

Page 468

2. Discussion.

a. The reasonable doubt instruction.

In a criminal case, due process requires that the Commonwealth prove the defendant's guilt beyond a reasonable doubt. Commonwealth v. Pinckney, 419 Mass. 341, 342, 644 N.E.2d 973 (1995), citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The defendant in this case contends that the judge's charge on reasonable doubt violated the due process clause of the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights by diluting the Commonwealth's burden of proof and by shifting it, in part, to the defendant. " A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards." Pinckney, supra.[4]

" [T]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." Pinckney, 419 Mass. at 342, quoting Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). However, the words used must " impress[] upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused." Pinckney, supra at 344. See Victor, supra at 15, quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In 1850, Chief Justice Lemuel Shaw elaborated on the proof required to create such near certitude:

" Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the ...

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