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.