Commonwealth v. Hebert

1

COMMONWEALTH v. JACOB M. HEBERT

No. 22-P-572

Appeals Court of Massachusetts

June 2, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant and the codefendant, John Jones, of two counts each of aggravated rape (by joint enterprise) under G. L. c. 265, § 22 (a). The defendant filed a postconviction motion that raised the following claims for the first time: (1) the prosecution failed to record instructions provided to the grand jury; (2) the prosecutor misled the grand jury through an erroneous instruction; (3) the jury likely convicted him of uncharged crimes because the evidence before the grand jury and at trial showed multiple acts of penetration, yet no particular acts were specified in the indictments; and (4) the trial judge provided erroneous joint venture instructions. The Superior Court judge who presided over the trial denied the motion. In a consolidated appeal from his convictions and from the order denying the motion, the defendant repeats these claims. We affirm.

Discussion.

According to the Commonwealth's case, on January 10, 2017, the defendant joined with Jones in a prolonged sexual assault of the victim. The defendant and the victim previously knew each other and had an ongoing relationship with a sexual component. The defense contended that the three individuals had consensual sex on the day in question. At the conclusion of the trial, the jury returned guilty verdicts against the defendant and Jones for aggravated rape (vaginally) and aggravated rape (anally). The jury acquitted the defendant and Jones of aggravated rape (orally).

The defendant raised the present claims for the first time in his postconviction motion. We discern no abuse of discretion in the denial of the defendant's postconviction motion and discern no basis to disturb the judgments. We address his several claims in turn.

1. Grand jury recording requirement.

Contrary to the defendant's first claim, the Commonwealth did not violate the recording requirement for grand jury presentations. On January 6, 2017, the Supreme Judicial Court released the case of Commonwealth v. Grassie, 476 Mass. 202 (2017), which required that "the entire grand jury proceeding . . . be recorded in a manner that permits reproduction and transcription." Id. at 220.

The court indicated that the recording must include "any legal instructions provided to the grand jury by a judge or a prosecutor in connection with the proceeding." Id. The court further instructed that "[t]he recording requirement shall apply beginning with each newly constituted grand jury including the Statewide grand jury, that is empaneled and sworn following the issuance of the rescript in this case" (emphasis added). Id. A "rescript" is "the order, direction, or mandate of the appellate court disposing of the appeal." Foxworth v. St. Amand, 457 Mass. 200, 205 n.7 (2010), quoting Mass. R. A. P. 1 (c), 365 Mass. 844 (1974). When an appellate court renders such a rescript, the court clerk notifies the parties and then "issues the rescript to the lower court twenty-eight days after the date of the rescript" (emphasis added). Foxworth, supra at 205, citing Mass. R. A. P. 23, as appearing in 367 Mass. 921 (1975). In the present case, on January 9, 2017, just three days after the Grassie decision, the Superior Court empaneled the grand jury - long before the usual twenty-eight day period for a rescript to issue. Given this sequence of events, at the time of the presentation of this case to the empaneled grand jury, the recording requirement had not yet become operative,^[1] and the Commonwealth lacked any obligation to record instructions.

2. Impairment of grand jury process.

We also discern no impairment of the grand jury proceedings. The defendant contends that the prosecutor "affirmatively misled" the grand jury through an erroneous instruction on joint enterprise. "[T]he heavy burden to show impairment of the grand jury proceeding is borne by the defendant." Commonwealth v. Stevenson, 474 Mass. 372, 376 (2016). To sustain that burden, the defense must show that the prosecution knowingly deceived the grand jury about a significant issue "with the intention of obtaining an indictment." Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). In support of his claim, the defendant asserts that the "prosecutor told the grand jury that a joint-enterprise rape occurs even if the defendant acts alone." This assertion is not supported by the record.

The record, consisting of an affidavit from the prosecutor, shows that the prosecutor lacked a specific memory of what he told the grand jurors. During the grand jury presentation, he provided preliminary background information, referred to an outline, and informed the grand jury about specific acts of penetration that pertained to each indictment. He averred, in part:

"Prior to going on the record with the stenographer, I provided preliminary background information to the grand jury, as was my customary practice during that time. . . . I do not have a specific memory of the content of the introductory information. . . . Attached is an outline that I prepared for that presentation. . . . I am confident that I referred to the outline during my introduction and that I informed the grand jury that each of the three aggravated rape indictments referred to a different form of penetration, as set out in the outline."

The outline attached to the affidavit consisted of five typed pages. One notation included the category "elements" that contained a subcategory of "joint venture" and a further subcategory indicating, "Defendant knowingly participated in the commission of the crime charged, alone or with others, with the intention required for that offense." Contrary to the defendant's assertion, the record does not establish that the prosecutor read or otherwise conveyed this portion of the outline to the grand jury. The affidavit shows that the prosecutor "referred" to the outline and "informed" the grand jurors about the acts of penetration linked to each indictment. He did not attest to providing any instruction on joint venture. Notably, the outline contains other information that would not be provided to the grand jury, including references to the penalties for the offenses. A mere reference on a prosecutor's outline does not equate with conveying information to the grand jury. Based upon this record, the defendant did not meet his "heavy burden" of showing impairment of the grand jury proceedings. Stevenson, 474 Mass. at 376.

Even if the prosecutor suggested to grand jurors that the crimes could be committed "alone," we discern no impairment of the grand jury proceedings. The victim's testimony before the grand jury showed that the defendant and Jones acted together. They entered the house together at about 2 A.M., drank and talked together in the living room, repeatedly raped the victim together in the living room, filmed a brief portion of the rape together, watched the videotape together, and left together at about 5 A.M. This testimony supported the indictments for rape "committed by a joint enterprise," G. L. c. 265, § 22 (a), and was quite unlikely to have led to indicting the defendant acting "alone." We also note the longstanding "practice of subjecting grand jury proceedings to only limited judicial review." Commonwealth v. Noble, 429 Mass. 44, 48 (1999). Generally, "[t]he Commonwealth is not required to inform a grand jury of the elements of the offense." Id. When instructions are provided, the grand jury "need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law." Id. at 47 n.3, quoting People v. Calbud, Inc., 49 N.Y.2d 389, 394 (1980).

During the argument before the panel in this case, the defendant asserted that we cannot consider the prosecutor's affidavit on this issue. The defendant claimed that the record must be parsed and aligned with the various postconviction motions that he filed.^[2] In particular, the defendant argued that the prosecutor's affidavit, filed in response to an "Emergency Motion for Stay of Execution of Sentence Pending Appeal," cannot be considered in connection with the different postconviction "Motion to Vacate Convictions and to Dismiss Indictments," in which the defendant claimed that the prosecutor misled the grand jury. We disagree. The affidavit is one of the "original papers and exhibits on file" in the Berkshire Superior Court and constitutes part of the record in this matter. See Mass. R. A. P. 8 (a), as amended, 378 Mass. 932 (1979). "[W]e decide the case on this record" that was before the Superior Court. Pilch v. Ware, 8 Mass.App.Ct. 779, 780 (1979). See Commonwealth v. Morse, 50 Mass.App.Ct. 582, 584 n.3 (2000) (rejecting defense claim that appellate review of record was limited where affidavit was filed in support of motion to revise and revoke and was not related to probation revocation). We also note that the judge hearing the postconviction motion also relied upon the affidavit, and the defendant...