Commonwealth v. Russell
470 Mass. 464
Mass.2015Background
- Victim alleged repeated sexual abuse by defendant (her mother's boyfriend/husband) from age 6 through teens, including touching, digital and penile contact, oral sex, and threats. Defendant fled to Mexico; returned and was tried in 2012 on indictments returned in 1990.
- Indictments charged multiple counts of statutory rape over distinct time periods; jury acquitted on 18 rape counts but convicted on 7 counts of the lesser-included offense indecent assault and battery of a child under 14.
- Trial judge, over defense objection, declined to give the traditional Webster phrasing of reasonable doubt and instead used a mixture of Webster context with the Federal Judicial Center’s Instruction 21 phrasing ("firmly convinced" / "real possibility").
- Defense asked during deliberations for the Webster language; judge reiterated his instruction.
- Judge also, sua sponte and over objection, instructed on lesser included offenses for seven counts where penetration was arguably disputed.
- Defendant appealed, arguing the reasonable-doubt instruction was constitutionally inadequate and that submission of lesser included offenses was erroneous; SJC granted direct review.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Russell) | Held |
|---|---|---|---|
| 1. Constitutional adequacy of the reasonable-doubt instruction | Instruction properly conveyed "near certitude" standard; mixture of Webster and Instruction 21 is acceptable. | Omission of Webster's "abiding conviction"/"moral certainty" and use of "firmly convinced" and "real possibility" diluted burden and risked confusion with clear-and-convincing standard or shifted burden. | Instruction met Due Process and art. 12 minima; no constitutional error. |
| 2. Whether SJC should mandate Webster charge (superintendence power) | No need to require Webster; various formulations meet constitutional minimum. | Court should require Webster; its solemn moral-language protects presumption of innocence. | SJC uses superintendence power to adopt a modernized Webster model prospectively (abiding conviction to a moral certainty, clarified). |
| 3. Retroactivity of new model instruction | New rule need not apply retroactively absent miscarriage of justice. | Preserved objection and argued on appeal; seeks benefit of new rule now. | New instruction applied only prospectively; defendant not entitled to retroactive relief. |
| 4. Submission of lesser-included offenses | Evidence provided a rational basis to convict of nonpenetrative indecent touching while acquitting of penetration; instruction proper. | Jury’s selective credibility could not logically strip integral portions of testimony (argues only an up-or-down credibility battle). | Giving lesser-included instructions was not error; jury could rationally credit nonpenetrative testimony and disbelieve penetration. |
Key Cases Cited
- Commonwealth v. Webster, 5 Cush. 295 (Mass. 1850) (classic "Webster" reasonable-doubt formulation invoking "abiding conviction" and "moral certainty")
- Victor v. Nebraska, 511 U.S. 1 (1994) (Winship standard; analysis of "moral certainty" and permissibility of alternative language)
- In re Winship, 397 U.S. 358 (1970) (Due process requirement: proof beyond a reasonable doubt)
- Commonwealth v. Pinckney, 419 Mass. 341 (1995) (Massachusetts standards for reasonable-doubt instructions)
- Commonwealth v. Watkins, 433 Mass. 539 (2001) (Webster charge as preferred/adequate model)
- State v. Bennett, 161 Wash. 2d 303 (2007) (exercise of supervisory power to require uniform reasonable-doubt instruction)
- Commonwealth v. Porro, 458 Mass. 526 (2010) (standard for when lesser-included-offense instructions are permissible)
- Commonwealth v. Donlan, 436 Mass. 329 (2002) (framework for lesser-included-offense inquiries)