Commonwealth v. Billingslea

484 Mass. 606

143 N.E.3d 425

COMMONWEALTH

v.Essie BILLINGSLEA.

SJC-12715

Supreme Judicial Court of Massachusetts, Middlesex..

Argued October 1, 2019

Decided April 30, 2020

Alan D. Campbell, Brookline, for the defendant.

Jessica Langsam, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

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 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 of G. L. c. 279, § 25 (a ),² or the habitual offender provision of § 25(b ), or both.^{3 ,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 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.

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.

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 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; 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. 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, 380 N.E.2d 113 (1978), citing Commonwealth v. Sacco, 259 Mass. 128, 156 N.E. 57 (1927), and Commonwealth v. Sacco, 255 Mass. 369, 151 N.E. 839 (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 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, 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...