143 N.E.3d 425
Mass.2020Background
- Defendant convicted by jury of multiple felonies arising from a violent June 1, 2014 home invasion and sexual assaults; several sentencing enhancements under G. L. c. 279, § 25(a) and (b) were alleged.
- After conviction the defendant waived a jury for the habitual-offender phase; the Commonwealth nolled the §25(a) habitual-criminal counts and prosecuted §25(b) habitual-offender enhancements; defendant was sentenced (including life without parole on one count) and appealed.
- Defendant moved to have his direct appeal entered in the Supreme Judicial Court (SJC), arguing that the 2012 amendment to G. L. c. 278, § 33E makes a third §25(b) conviction a “capital case” that must be entered directly in the SJC.
- The Appeals Court denied transfer without prejudice; the SJC accepted the issue and considered whether third convictions under §25(b) may be entered in the Appeals Court and whether the Appeals Court may perform §33E review.
- The SJC held that direct appeals of third §25(b) convictions may be entered in the Appeals Court, that such appeals are entitled to §33E plenary review, and that the Appeals Court may conduct §33E review (including acting through a single-justice gatekeeper and exercising reduction/remand powers).
- The SJC also rejected the defendant’s trial-related claims (valid jury-waiver for the habitual phase, no reversible error on voir dire for alleged interracial-rape bias, no sua sponte consciousness-of-guilt instruction required, and no abuse of discretion in excusing a juror exposed to the defendant’s sister) and denied §33E relief on the merits.
Issues
| Issue | Commonwealth's Argument | Billingslea's Argument | Held |
|---|---|---|---|
| Whether a third conviction under G. L. c. 279, § 25(b) must be entered directly in the SJC under § 33E | §33E’s 2012 amendment creates a capital case but does not preclude Appeals Court entry | Third §25(b) conviction is a §33E capital case that must be entered in SJC in the first instance | Appeals Court may receive direct appeals of third §25(b) convictions; §33E review applies and may be performed by Appeals Court |
| Whether Appeals Court may conduct §33E plenary review (including reduction/remand powers) | Appeals Court has concurrent jurisdiction under G. L. c. 211A, § 10; can perform plenary §33E review | §33E contemplates SJC-only plenary review; Appeals Court lacks §33E authority | Appeals Court can conduct full §33E review, reduce verdicts or remand for resentencing, and apply gatekeeper function via single justice of Appeals Court |
| Who acts as gatekeeper for post-rescript motions under §33E | Single-justice screening is required but can be an Appeals Court justice | Must be a single justice of the SJC | Single justice of the Appeals Court may screen post-rescript motions (consistent with §33E and §211A) |
| Validity of defendant’s written waiver of jury for habitual-offender sentencing phase | Waiver on the sentencing/enhancement phase is permissible if knowing and voluntary | Waiver was impermissible because §33E classifies the matter as capital, invoking G. L. c. 263, § 6 (no waiver) | Waiver was valid: §33E’s capital-case label applies to the underlying third-conviction trial, not the separate technical sentencing/enhancement phase; colloquy and written waiver satisfied requirements |
| Request for individual voir dire based on interracial-rape issue | Individual voir dire is required in interracial-rape cases but questionnaire and individual sidebar can satisfy the requirement | Judge failed to perform mandatory individual voir dire at sidebar | Defendant waived demand by agreeing to questionnaire and individual sidebar; voir dire performed individually and no prejudice shown |
| Failure to give sua sponte consciousness-of-guilt instruction after Commonwealth argument | Instruction required when evidence of consciousness of guilt is presented | Judge must give instruction sua sponte when evidence supports it | No error: defendant did not request the instruction, judge permissibly exercised discretion not to give it |
| Judge’s response to juror note (conversation with defendant’s sister) and whether further extraneous-influence inquiry was required | Judge properly questioned the juror, relied on her assurance she did not discuss it with others, and excused her | Judge should have conducted broader voir dire of remaining jurors for extraneous influence | No abuse of discretion: judge’s inquiry and juror’s credible assurances sufficed; excusal was proper |
Key Cases Cited
- Commonwealth v. Brown, 376 Mass. 156 (1978) (discusses historical purpose of §33E amendment and plenary review)
- Commonwealth v. Baker, 346 Mass. 107 (1963) (describes expanded §33E power to reduce a verdict to a lesser degree)
- Commonwealth v. Davis, 380 Mass. 1 (1980) (explains Appeals Court concurrent jurisdiction and past transfer practice)
- Commonwealth v. Friend, 393 Mass. 310 (1984) (statutory references to the SJC are not always literal; context matters)
- Commonwealth v. Gunter, 459 Mass. 480 (2011) (explains single-justice gatekeeper standard: "new and substantial" requirement)
- Commonwealth v. Cruz, 416 Mass. 27 (1993) (rule on when a consciousness-of-guilt instruction is required)
- Commonwealth v. Sanders, 383 Mass. 637 (1981) (individual voir dire mandatory on request in interracial-rape cases)
- Commonwealth v. Richardson, 469 Mass. 248 (2014) (procedures for sentencing enhancements and use of nolle prosequi)