COMMONWEALTH vs. ESSIE BILLINGSLEA.
SJC-12715
Supreme Judicial Court of Massachusetts
October 1, 2019. - April 30, 2020.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Middlesex.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
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
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
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. 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)
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 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,
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 . . .
An amendment in 1939 added a second paragraph to § 33E, which now comprises, in essence, the entire section. See St. 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 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 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:
“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 the severity of its consequences“).11 During the seven-year period between the creation of the Appeals Court in 1972, see
In 2012, the Legislature again amended § 33E to include “the third conviction of a habitual offender under”
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.
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).
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
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
a. Defining § 33E review of first-degree murder convictions.17
Defendants in first-degree murder cases have a direct appeal to
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
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
“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 reportedevidence, 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
Significantly, this court grants relief under
“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%.”
This court‘s authority to reduce a conviction of murder in the first degree in the interest of justice “should be used sparingly and
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 subsequent postconviction motions.” Dickerson, 396 Mass. at 744. This restriction comes in the form of the “gatekeeper” provision of
“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 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
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
“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
Although the habitual offender designation stems from a wide range of crimes as delineated in
Therefore, because the plain meaning of and the legislative intent behind § 33E require it, all third convictions of habitual offenders under
“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.
The Appeals Court‘s ability to reduce the verdict of a third conviction of a habitual offender under § 33E presents a slightly
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,
However, in the interests of efficient administration of justice, “[w]e retain jurisdiction in the instant case and reach 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
Although it is true that the definition of “capital case” in
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
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,
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 courtroom 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?”
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
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:
“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 courtroom, 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.
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 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
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.
“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 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
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 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
5. Relief pursuant to G. L. c. 278, § 33E.
Having carefully reviewed the entire record, we discern no reason to exercise our power under
Judgment affirmed.
Notes
A habitual offender under
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“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 that occurred at different times, where the second offense occurred subsequent to the first conviction . . .”
“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 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.”
“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.”
“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.”