Heard: October 7, 2015.
found and returned in the Superior Court Department on
December 15, 2011.
A pretrial motion for presumptively privileged records was
considered by Thomas P. Billings, J., and a renewed motion
was heard by Kathe M. Tuttman, J; a pretrial motion for a
hearing on the adequacy of the affidavit supporting a search
warrant was heard by Thomas P. Billings, J.; and the cases
were tried before Bruce R. Henry, J.
Stanley D. Helinski for the defendant.
Cimini, Assistant District Attorney, for the Commonwealth.
Present: Katzmann, Rubin, & Wolohojian, JJ.
case presents a question of first impression about the
adequacy of the subsequent offense portion of an indictment
where, on the main indictment, a defendant is convicted not
of the charged offense, but of a lesser included offense that
carries a subsequent offense enhancement.
defendant was indicted on December 15, 2011, on ten counts.
Count 1 charged rape of a child by force under G. L. c. 265,
§ 22A. A second part of that count, captioned
"Forcible Rape of a Child -- Subsequent Offense, "
charged that at the time of the offense charged in the first
count the defendant "was previously convicted of
Indecent Assault and Battery on a Child Over Fourteen, a
violation of Massachusetts General Laws Chapter 265 Section
13[H] in the Framingham Juvenile Court Docket No. DL05FO606
on November 28, 2007.” See G. L. c. 265, §
jury trial, the defendant was convicted on count 1 not of
rape of a child by force, but of the lesser included offense
of rape of a child (i.e., statutory rape) under G. L. c. 265,
§ 23. Some eleven days later, a new jury was empanelled,
and the defendant was tried on the subsequent offense penalty
enhancement for the latter crime under G. L. c. 265, §
23B. See G. L. c. 278, § 11A; Commonwealth
v. Pelletier, 449 Mass. 392, 396 (2007), quoting
from Commonwealth v. Miranda, 441 Mass. 783, 788
(2004) (explaining that § 11A "requires a defendant
to be tried in a two-step, bifurcated procedure: 'first,
on the underlying substantive crime and, then, in a separate
proceeding, on that component of the charge referring to the
crime as a second or subsequent offense'"). See also
Commonwealth v. Fernandes, 430 Mass. 517,
520-521 (1999), cert, denied sub nom. Martinez
v. Massachusetts, 530 U.S. 1281 (2000) ("[T]he
counts for the current offense and for the repeat offense are
viewed as parts of one indictment and charge only one crime
with a sentence enhancement provision"). He was
convicted. He received a mandatory minimum sentence of
fifteen years in State prison under the penalty
enhancement.See G. L. c. 265, § 23B. The
defendant now appeals.
The subsequent offense enhancement.
defendant first argues that since he was acquitted of rape of
a child by force on count 1, the subsequent offense portion
of the indictment was in essence a nullity. The indictment
read "Forcible Rape of a Child -- Subsequent
Offense." Since the defendant was acquitted of forcible
rape of a child under the first count, the defendant argues,
if the Commonwealth desired to try him for the subsequent
offense enhancement applicable to the lesser offense of which
he was convicted, it was required to amend the indictment to
say so. He argues that having failed to do so, the
Commonwealth did not put him on notice that he might be tried
for the subsequent offense enhancement were he convicted of a
lesser included offense.
disagree. It is well established that an indictment for a
greater offense puts a defendant on notice that he may be
convicted of a lesser included offense that is not named in
the indictment. See Commonwealth v. Keane,
41 Mass.App.Ct. 656, 661 (1996) ("[A]n indictment for
aggravated rape clearly gives notice of the lesser included
crime of rape"). Likewise, the second or subsequent
offense portion of an indictment identifies the previous
conviction that the Commonwealth will seek to
prove at trial. In such a case, we think that the subsequent
offense indictment puts a defendant on notice that, should he
be convicted of only a lesser included offense for which the
prior conviction named in the subsequent offense indictment
also subjects him to a subsequent offense enhancement, the
Commonwealth may proceed to trial on the subsequent offense
enhancement applicable to the lesser included offense
we think that this is the way that any reasonable attorney
would understand the indictment, though we recognize that how
any individual attorney would understand the language of the
indictment is an empirical question. Second, we think that
any alternative would be impractical, since the second,
subsequent offense trial is ordinarily conducted immediately
after the conviction on the underlying offense. And finally,
such a reading of the indictment does not prejudice the
defendant. No defendant can be certain of a conviction on a
lesser included offense rather than the charged offense.
Therefore, if the prior conviction is to be contested,
counsel will have to prepare for the subsequent offense trial
in advance of trial on the charged offense. In circumstances
such as these, where the specific prior offense to be proved
is identified in the indictment and it subjects the defendant
to an enhancement with respect to the lesser included offense
of conviction, nothing different will be at issue in the
subsequent offense trial than would have been at issue had
the defendant been convicted of the charged, greater offense.
There thus can be no prejudice to the defendant.
that nothing that we say prevents the Commonwealth from
determining not to proceed on a subsequent offense
enhancement in the event of conviction of only a lesser
included offense. That discretionary determination remains
with the executive branch. See, e.g., District Attorney
for the Suffolk Dist. v. Watson, 381
Mass. 648, 668 (1980) (prosecutor has uncurbed discretion to
nol pros portions of indictment charging murder in first
degree). We also note that our decision applies only to
indictments such as the one at issue here, which identifies
the prior conviction to be proved. We express no opinion on
indictments that may be phrased or structured differently.
The remaining claims of error.
defendant also claims that the Superior Court judges erred in
five other respects: (1) by denying the defendant's
motions seeking the victim's records; (2) by denying the
defendant's motion for a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978);
(3) by ruling that the defendant's deoxyribonucleic acid
(DNA) expert could not criticize the thoroughness of the
Commonwealth's investigation; (4) by failing to sustain
the defendant's objection to the prosecutor's
misstatements in closing; and (5) by refusing to ask a series
of voir dire questions proposed by the defendant. We disagree
with the defendant in all respects. Before explaining our
reasoning, however, it is necessary to set forth additional
stated previously, the defendant was indicted on ten counts:
two counts of rape of a child by force as a subsequent
offense, G. L. c. 265, § 22A; two counts of aggravated
rape of a child by force (aggravated by kidnapping) as a
subsequent offense, G. L. c. 265, § 22B; one count of
indecent assault and battery on a person over fourteen, G. L.
c. 265, § 13H; one count of distribution of marijuana,
G. L. c. 94C, § 32C (a.); one count of possession with
intent to distribute marijuana, G. L. c. 94C, § 32C
(a.); one count of kidnapping, G. L. c. 265, § 26; one
count of intimidation of a witness, G. L. c. 268, § 13B;
and one count of threat to commit a crime, G. L. c. 275,
§§2 & 4. The defendant pleaded guilty to the
drug offenses before trial. He was found guilty of the lesser
included offense of statutory rape on the four indictments
that charged rape of a child by force and aggravated rape.
The judge then vacated the jury verdicts on the aggravated
rape charges and dismissed the indictments as duplicative.
The defendant was acquitted of indecent assault and battery,
kidnapping, intimidation of a witness, and threat to commit a
crime. As discussed above, in the second phase of the trial,
a new jury found that the conviction of rape of a child on
count 1 was a subsequent offense.
recite the facts a reasonable jury could have found, taking
the evidence in the light most favorable to the Commonwealth
except where the jury verdicts rejected the
Commonwealth's theory of the case. We reserve additional
facts for later discussion of specific issues.
defendant and the victim started communicating in October,
2011, when the victim had returned to her grandparents'
house in New Hampshire after running away to
stay with friends in Marlborough for three days. The victim
used two different applications installed on her iPod Touch
to communicate with the defendant both by voice and by text
message. At some point during the next few weeks, the victim
told the defendant that she wanted to run away again.
November 1, 2011, they made a plan for the defendant and a
friend of his, who had a car, to pick up the victim at her
grandparents' house. When the defendant sent a text
message saying that he was nearby, the victim told her
grandmother that the screen in her window was broken. While
her grandmother was looking at the screen, the victim took
her purse, a bag she had packed, and thirty-seven dollars
from her grandmother's purse, and left the house. Before
she got into the car with the defendant, he said that she
should tell his friend she was nineteen. However, at the time
she was only fifteen. The victim's ...