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SJC‑11181

COMMONWEALTH  vs.  JOHN PARENT.

Middlesex.     February 4, 2013.  ‑  June 10, 2013.

Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

Indecent Assault and Battery.  Delinquent Child.  Evidence, Prior inconsistent statement, First complaint, Bias, Relevancy and materiality, Presumptions and burden of proof.  Rape‑Shield Statute.  Practice, Criminal, Assistance of counsel, Argument by counsel, Presumptions and burden of proof, Instructions to jury, Question by jury.  Constitutional Law, Assistance of counsel, Burden of proof.  Alcoholic Liquors.

Indictments found and returned in the Superior Court Department on May 26, 2009.

The cases were tried before Elizabeth M. Fahey, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Michael Tumposky for the defendant.

Anne Pogue Donohue, Assistant District Attorney, for the Commonwealth.

GANTS, J.  A Superior Court jury convicted the defendant, John Parent, on three indictments:  the first alleged indecent assault and battery on a fourteen year old friend of his daughter (victim) in violation of G. L. c. 265, § 13H; and the latter two alleged that he contributed to the delinquency of a child, in violation of G. L. c. 119, § 63.  The second indictment rested solely on the theory that the defendant violated G. L. c. 138, § 34, by delivering, procuring, and furnishing alcohol to the victim; and the third rested solely on the defendant’s delivery of alcohol to his own fifteen year old daughter.  On appeal, the defendant claims that the trial judge erred by (1) barring defense counsel from eliciting from a police detective certain statements made by the victim in an interview conducted four days after the indecent assault and battery that were inconsistent with the victim’s trial testimony; (2) allowing “second complaint” testimony to be admitted at trial; (3) limiting inquiry into matters that the defendant contends would have revealed a motive for the victim to fabricate her allegations; and (4) denying the defendant’s motion for a required finding of not guilty on the indictment alleging that he had delivered alcohol to his own daughter.  The defendant also argues that his counsel was ineffective because he declared in his opening statement that he would prove certain facts and asserted in his closing argument that he had proved those facts, thereby suggesting that the defendant had accepted some burden of proof.

We conclude that the judge erred in preventing the jury from learning that the victim made statements to a police detective regarding the alleged sexual assault and her first complaint that were inconsistent with the victim’s testimony at trial.  Where the Commonwealth’s case regarding the sexual assault rested entirely on the victim’s credibility, we conclude that such an error is prejudicial and requires a new trial as to that indictment.  We also conclude that the defendant’s conviction resting on his delivery of alcohol to his daughter must be reversed and a judgment of acquittal entered, because the Legislature did not intend G. L. c. 138, § 34, to prohibit the delivery of alcohol by a parent to his minor children.  We affirm the conviction of furnishing, procuring, and delivering alcohol to the victim, because we conclude that the defendant was not denied the effective assistance of counsel.^[1]

Background.  We recite the facts a jury could have found, reserving additional facts for the discussion of specific issues raised on appeal.  The defendant’s fifteen year old daughter, Sally, invited her fourteen year old friend Maxine,^[2] the victim, to sleep over at her father’s house.^[3]  On March 21, 2008, Maxine arrived at the defendant’s home with a water bottle containing vodka that she had taken from her parents’ liquor cabinet.

Sally asked her father for a bottle of “hard lemonade,” an alcoholic, lemon-flavored malt beverage, and the defendant gave a bottle to each of the girls.  After the girls had each consumed the hard lemonade, the defendant asked them if they wanted to go with him to a local convenience store to purchase more alcohol.  At the convenience store, the defendant bought two six-packs of hard lemonade.  The store clerk testified that the defendant came into the store with two girls and that the defendant introduced one of the girls as his daughter.  After purchasing the alcohol, the defendant and the two girls returned to the defendant’s home, and the defendant then gave the girls one of the six-packs of the hard lemonade.  The girls took the six-pack to a bedroom located in the refinished basement of defendant’s house,^[4] and each consumed three bottles.  After finishing the third bottle at approximately 10:30 or 11 P.M., Maxine testified that she felt “tipsy.”

Maxine also testified that the defendant appeared “tipsy” when he spoke to them from the doorway of Sally’s bedroom about twenty minutes after they had gone down to the basement.  The girls spoke with friends on their cellular telephones until after midnight, at which point the defendant and his fiancée^[5] came down to the bedroom and told the girls to go to bed.  The defendant’s fiancée confiscated the girls’ cellular telephones, but the girls were allowed to keep the telephones’ batteries.  The girls then both fell asleep on a sofa bed while watching television.

Maxine testified that she awoke suddenly to find the defendant on the sofa bed, between her and Sally, saying her name, although mispronouncing it.  According to her testimony, she felt the defendant’s hand under her pajama pants rubbing her vagina over her underwear.  Maxine pulled the defendant’s hand out of her pajamas and pulled the covers up.  After the defendant tugged at the covers and called Maxine a “party pooper,” he turned off the television and went back upstairs.  Maxine then fell back to sleep.

The following morning, after Sally and Maxine woke up and recovered their cellular telephones, the defendant’s fiancée took Sally, Maxine, and Sally’s younger sister to a shopping mall to see a movie.  While at the mall, Maxine saw a friend, Annette,^[6] who testified that Maxine told her that the defendant had lain on the bed with them while “they were trying to sleep” and “his hand [had been] in [Maxine’s] pants.”^[7]

Sally testified that her father gave her and Maxine each a bottle of hard lemonade before going to the store, and that he purchased three six-packs of hard lemonade at the store and gave them two of the six-packs.^[8]  She observed that her father was “getting more and more intoxicated” throughout the night.  Sally further testified that she did not see, hear, or feel her father get on the sofa bed, even though she was sleeping only eighteen inches away from Maxine in the sofa bed.

Discussion.  1.  Impeachment by prior inconsistent statement.  The only evidence of the indecent touching derived from Maxine, and was presented to the jury through Maxine’s testimony and the first complaint testimony of Annette.  Defense counsel argued that Maxine was not credible and that the alleged sexual assault was a fabrication.  In his opening statement, defense counsel told the jury that they would learn that the details surrounding Maxine’s story changed over time, and he specifically referred to Maxine’s interview with Detective Scott Chaulk as the source of some of those inconsistencies.

According to Detective Chaulk’s incident report, Maxine told him on March 26, 2008, four days after the events at issue, of the sexual assault committed against her by the defendant.  However, some of the information she provided to Detective Chaulk differed from what she said in her trial testimony.  She told Detective Chaulk that, when the defendant lay down between Sally and her, Sally told him to leave them alone, but at trial she testified that she did not hear Sally say anything.  She told Detective Chaulk that the defendant touched, but did not penetrate, her vagina, but at trial she testified that he rubbed her vagina over her underwear, and specifically denied telling Detective Chaulk that the defendant had touched her vagina.  She told Detective Chaulk that she told someone about the incident on the following Monday at cheerleading practice, but at trial she testified that she told Annette on Saturday at the mall.

In his cross-examination of Maxine, defense counsel attempted to elicit these inconsistencies from her, but Maxine either denied making the inconsistent statements to Detective Chaulk or claimed that she did not remember making them, even after defense counsel attempted to refresh her memory with Detective Chaulk’s report.  When Detective Chaulk testified, defense counsel on cross-examination attempted to elicit Maxine’s inconsistent statements from him.  The judge sustained the prosecutor’s objection to this line of questioning, ruling that the statements Maxine made to Detective Chaulk were not inconsistent because she did not remember making them.  We review this evidentiary ruling for prejudicial error.  See Commonwealth v. Hesketh, 386 Mass. 153, 160 (1982).

The defendant argues on appeal that the judge erred by limiting his ability to impeach Maxine’s credibility by eliciting from Detective Chaulk her earlier inconsistent statements.  We agree.  “The rule of evidence is well settled that if a witness either upon his direct or cross-examination testifies to a fact which is relevant to the issue on trial the adverse party, for the purpose of impeaching his testimony, may show that the witness has made previous inconsistent or conflicting statements, either by eliciting such statements upon cross-examination of the witness himself, or proving them by other witnesses.”  Robinson v. Old Colony St. Ry., 189 Mass. 594, 596 (1905).  See Commonwealth v. Basch, 386 Mass. 620, 623 (1982) (“A party has a right to impeach [a] witness’s testimony by means of prior inconsistent statements, and though a judge may limit that impeachment when the testimony concerns collateral issues in the case, [the judge] has no discretion to do so when the issue is material”).  See generally Mass. G. Evid. § 613(a) & note (2013) (extrinsic evidence of prior inconsistent statement by witness called by adverse party admissible for impeachment purposes).  To be used for impeachment, it is not necessary that the witness’s “prior statement be a complete, categorical, or explicit contradiction of his trial testimony.”  M.S. Brodin & M. Avery, Massachusetts Evidence § 6.13.2(b), at 321 (8th ed. 2007).  See Commonwealth v. Simmonds, 386 Mass. 234, 242 (1982) (“It is not necessary that the prior statement contradict in plain terms the testimony of the witness”).  “It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict.”  Commonwealth v. Hesketh, supra at 161, quoting Commonwealth v. West, 312 Mass. 438, 440 (1942).  See Commonwealth v. Pickles, 364 Mass. 395, 402 (1973) (prior statement inconsistent “if its implications tend in a different direction”).

The Commonwealth contends, in essence, that Maxine’s statements to Detective Chaulk were not inconsistent because “there is no inconsistency between a present failure of memory on the witness stand and a past existence of a memory.”  Commonwealth v. Martin, 417 Mass. 187, 197 (1994), quoting P.J. Liacos, Massachusetts Evidence § 6.6.2, at 271-272 (6th ed. 1994).  In Commonwealth v. Martin, supra at 196, the alleged rape victim could not recall at trial what her assailant wore at the time of the alleged crime, but she had earlier testified that the assailant had worn jeans.  We concluded that the “complainant’s lack of memory at trial is not inconsistent with her prior testimony.”  Id. at 197.  But, in this case, Maxine at trial did recall what happened to her during the sleepover and its aftermath, and, according to Detective Chaulk’s incident report, her earlier statements to Detective Chaulk were materially inconsistent with some of her trial testimony.  The defendant did not contend that Maxine’s lack of memory at trial as to what she told Detective Chaulk was inconsistent with what she told Detective Chaulk.  Rather, he contended that what she told the jury as to what happened during the alleged sexual assault and when she first spoke of it to a friend was in part inconsistent with what she told Detective Chaulk.  “[A] witness who has actually made a statement contradictory to trial testimony cannot escape impeachment simply by saying [s]he does not remember making the statement.”  M.S. Brodin & M. Avery, Massachusetts Evidence, supra at § 6.13.2(b), at 322, citing Langan v. Pianowski, 307 Mass. 149, 152 (1940).  See Commonwealth v. Daye, 393 Mass. 55, 73 n.17 (1984), overruled on another ground, Commonwealth v. Cong Duc Le, 444 Mass. 431, 432 n.3 (2005) (“Although the witness must recall the underlying events to which a prior statement refers, the witness need not recall making the statement, provided there is evidence, such as a grand jury transcript, that the statement was made”).

The Commonwealth additionally contends that the inconsistencies the defendant sought to elicit — the nature of the sexual touching, whether Sally spoke during the assault, and the date and place that Maxine told Annette about the alleged assault — were collateral matters that the judge may exclude in her discretion.  See Mass. G. Evid. § 613(a)(4) (2013) (“Extrinsic evidence to impeach a witness on a collateral matter is not admissible as of right, but only in the exercise of sound discretion by the trial judge”).  The Commonwealth’s argument misses the mark.  Because the crux of the defense was that Maxine had fabricated the entire story of the sexual assault, evidence that her description changed from one telling to the next is probative of whether her story is true and whether it deserves to be credited beyond a reasonable doubt.  Inconsistencies in her reporting of the sexual assault and her first complaint just four days after these events occurred are not collateral matters that a judge has discretion to preclude.

We turn now to the issue of prejudice.  The only evidence of a sexual assault derived from Maxine, both through her testimony at trial and through her first complaint, so her credibility was the sole issue at trial as to that charge.  Defense counsel argued that it was improbable both that the defendant would attempt to initiate sexual relations with Maxine while she slept only inches away from his own daughter, and that his daughter would not see, hear, or feel him sitting on the sofa bed if he had done so.^[9]  Because a finding of guilt as to the sexual assault required the jury to find beyond a reasonable doubt that Maxine was credible in her allegation, and because the inconsistent statements the jury did not hear reasonably may have affected their evaluation of her credibility, we “cannot say with fair assurance” that “the error did not influence the jury, or had but very slight effect.”  Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).  Therefore, we vacate the defendant’s conviction of indecent assault and battery, and remand for a new trial.

2.  Alleged evidentiary errors.  Because we vacate the defendant’s conviction of indecent assault and battery and remand for a new trial on this charge, we briefly address the remaining evidentiary issues that may arise at a retrial.

a.  “The general nature of the report” of Maxine to Detective Chaulk.  After Annette testified to Maxine’s first complaint, the prosecutor asked Detective Chaulk to describe the “nature” of the subsequent report that Maxine made to him.  Detective Chaulk responded that Maxine told him that “something had occurred” while she was on a sleepover at her friend’s father’s house the previous Friday evening.  Defense counsel objected, and the judge sustained the objection and called counsel to sidebar, where she told the prosecutor, “[Y]ou don’t get to ask him fresh complaint.”  The prosecutor replied that she was entitled to ask about “the general nature of the report” because defense counsel had extensively questioned the victim about her statement to Detective Chaulk, and the prosecutor was offering a “consistent report” to offset the inconsistent statements that defense counsel had elicited.  Defense counsel said he had no objection, and the prosecutor elicited from Detective Chaulk testimony that Maxine had told him that the defendant had committed a sexual assault on her when she was at the defendant’s house.

Under the “first complaint” doctrine, we do not permit in evidence “testimony from multiple complaint witnesses, limiting the testimony to that of one witness — the first person told of the assault.  The testimony of multiple complaint witnesses likely serves no additional corroborative purpose, and may unfairly enhance a complainant’s credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime.”  Commonwealth v. King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006), and cases cited.  “Law enforcement officials, as well as investigatory, medical, or social work professionals, may testify to the complaint only where they are in fact the first to have heard of the assault, and not where they have been told of the alleged crime after previous complaints or after an official report.”  Id.  The testimony elicited, for all practical purposes, constituted a second complaint from Maxine that the defendant had sexually assaulted her.

Nor was Maxine’s report to Detective Chaulk independently admissible to rebut the defense of fabrication or to rehabilitate Maxine’s credibility.  We have previously held that if evidence of a subsequent complaint is independently admissible and “serve[s] a purpose separate and apart from the first complaint doctrine, the judge may admit it ‘after careful balancing of the testimony’s probative and prejudicial value.’”  Commonwealth v. Dargon, 457 Mass. 387, 400 (2010), quoting Commonwealth v. Arana, 453 Mass. 214, 229 (2009) (Arana).  However, in the Dargon case, we specifically noted that “[i]f independently admissible evidence, ‘other than that specifically and properly designated as first complaint testimony, serves no purpose other than to repeat the fact of a complaint and thereby corroborate the complainant’s accusations, it is inadmissible.’”  Commonwealth v. Dargon, supra at 399-400, quoting Arana, supra.  See Arana, supra. (testimony may be admitted if “relevant and admissible for reasons that are independent of the first complaint doctrine”).  The testimony elicited from Detective Chaulk did not specifically rebut the defendant’s theories of bias or fabrication, but served only to show that Maxine had repeated her complaint to the police after initially telling Annette.  If a claim of fabrication alone were sufficient to open the door to the admission of multiple complaints, there would be nothing left of our “first complaint” doctrine.

b.  Alleged evidence of bias.  The defendant wished to elicit testimony from his fiancée that, on the night of the incident, before the alleged indecent assault and battery occurred, she overheard Maxine say to someone on her cellular telephone that she would provide oral sex if he came over to the defendant’s house that night.^[10]  The defendant claimed this evidence was admissible because Maxine may have feared that the defendant or his fiancée would report the telephone call to her parents and may have fabricated the allegations against the defendant as a sort of “preemptive strike.”  The judge ruled that the defendant may elicit that Maxine was overheard “inviting a boy over,” but not that she promised him oral sex once he arrived.  The judge declared that the offer of oral sex was inadmissible under the rape shield statute, G. L. c. 233, § 21B (§ 21B), which provides in pertinent part, “Evidence of specific instances of a victim’s sexual conduct . . . shall not be admissible except evidence of the victim’s sexual conduct with the defendant or evidence of recent conduct of the victim alleged to be the cause of any physical feature, characteristic, or condition of the victim . . . .”

The term “sexual conduct” is not defined in § 21B and we have yet to address whether an offer of sex constitutes “sexual conduct” under the statute.^[11]  We need not address it here, because we conclude that, regardless whether an offer of sex is governed by the rape shield statute, the judge did not abuse her discretion in limiting this evidence.

 Section 21B is “principally designed to prevent defense counsel from eliciting evidence of the victim’s promiscuity as part of a general credibility attack.”  Commonwealth v. Pearce, 427 Mass. 642, 647 (1998), quoting Commonwealth v. Fitzgerald, 412 Mass. 516, 523 (1992).  Further, even where § 21B does not apply, our common law grants a judge discretion to exclude such evidence where its primary purpose is to damage an alleged victim’s credibility in the eyes of the jury by suggesting promiscuity, and the risk of unfair prejudice outweighs its  probative weight.  See Commonwealth v. Domaingue, 397 Mass. 693, 698 (1986) (judge did not err in excluding evidence of complainant’s prior sexual conduct where “proffered evidence was excludable under common law principles of evidence, even though not properly excluded under G. L. c. 233, § 21B”).  In contrast, where specific instances of an alleged victim’s sexual conduct are relevant to show bias or a motive to lie, the evidence may be admissible even where § 21B governs.  See Commonwealth v. Polk, 462 Mass. 23, 37-38 (2012) (“We have recognized . . . that where the rape shield statute is in conflict with a defendant’s constitutional right to present evidence that might lead the jury to find that a Commonwealth witness is lying or otherwise unreliable, the statutory prohibition must give way to the constitutional right”); Commonwealth v. Harris, 443 Mass. 714, 721 (2005) (defendant may introduce evidence of complainant’s past sexual conduct notwithstanding rape shield statute “where that conduct is relevant to the complainant’s bias or motive to fabricate”).  However, even where such evidence is offered to show bias, “[a] judge must determine whether the weight and relevance of the proffered evidence outweighs its prejudicial effect on a victim.”  Commonwealth v. Mountry, 463 Mass. 80, 86 (2012).

A defendant who seeks to admit evidence “in an attempt to demonstrate bias must make a plausible showing that the circumstances existed on which the alleged bias is based.”  Commonwealth v. Tam Bui, 419 Mass. 392, 401, cert. denied, 516 U.S. 861 (1995) (affirming exclusion of evidence where “defendant’s bias theory was too tenuous to be one that he was entitled to pursue on the record he presented”).  Here, there was no plausible inference of bias or a motive to lie arising from Maxine’s alleged offer of oral sex.  There was no evidence actually suggesting that Maxine feared that the defendant’s fiancée would reveal the contested information to her parents, and no reason to infer that any reasonable person, or even a reasonable child, would think that a fabricated allegation of indecent assault and battery against the defendant would deter or prevent the defendant’s fiancée from making such a revelation.  With so slender a claim of bias, a judge would act within her discretion in concluding that the defendant’s primary purpose for offering this testimony is to sully the alleged victim’s general credibility by suggesting that she is promiscuous, and that the potential “prejudicial effect on [the] victim” outweighs the probative value of such testimony.  Commonwealth v. Mountry, supra at 86.

3.  Ineffective assistance of counsel.  The defendant argues that his trial counsel was ineffective because, through statements made in his opening statement and closing argument, he impermissibly shifted the burden of proof to the defendant.  We disagree.

In defense counsel’s opening statement, he said, “[W]e, who have no burden of proof at all, will prove to you” certain specified facts.  He went on to suggest that he would “prove” that the allegation that the defendant purchased alcohol for the girls “is simply false,” and that “the stories changed over time.”  In his closing argument, defense counsel began by reminding the jury that the Commonwealth has to prove that the defendant is guilty beyond a reasonable doubt, and that the burden is high to prevent a jury “from making a mistake and convicting an innocent person.”  He then stated, “I told you we would prove certain things.  And I suggest to you we did, mostly through cross-examination.”

We “recognize the danger that a defense counsel’s offer to ‘prove’ facts may be misunderstood by a jury as accepting a burden of proof that both our Federal and State Constitutions impose on the Commonwealth,” Commonwealth v. Taylor, 463 Mass. 857, 869 (2012), but, viewing defense counsel’s opening statement and closing argument in their entirety, we are confident that this danger did not materialize here.  Moreover, if defense counsel’s promise to prove certain facts created any confusion as to who bore the burden of proof, the confusion would have been cured by the judge’s instructions after closing argument that the burden of proving the defendant’s guilt beyond a reasonable doubt rested with the Commonwealth.  See id. at 870.  See also Commonwealth v. Miranda, 458 Mass. 100, 117 (2010), cert. denied, 132 S. Ct. 548 (2011).

4.  Delivery of alcohol to the defendant’s daughter.  General Laws c. 138, § 34 (§ 34), makes it illegal to provide alcohol to a person under twenty-one years of age, on any one of three separate theories of liability:  (1) the sale or delivery of any alcoholic beverage to any person under twenty-one years of age for his own use or the use of a parent or other person (“delivering”); (2) procurement of an alcoholic beverage for a person under twenty-one years of age in an establishment licensed to sell alcohol (“procuring”); and (3) furnishment of an alcoholic beverage to a person under twenty-one years of age (“furnishing”).  Section 34 defines the word “furnish” to mean “to knowingly or intentionally supply, give, or provide to or allow a person under twenty-one years of age except for the children and grandchildren of the person being charged to possess alcoholic beverages on premises or property owned or controlled by the person charged.”  Id.  By this definition of the word “furnish,” § 34 does not impose criminal liability on a parent who gives alcohol to his child in his own home.  The words “procure” and “deliver” are not defined in the statute, but the statute explicitly exempts from criminal liability a parent who “procures” alcohol for his child in any establishment licensed under sections 15, 19B, 19C, or 19D of G. L. c. 138.  Id.  No explicit exemption from liability is provided for the delivery of alcohol by a parent to his child.  Id.^[12]

In her jury charge, the judge informed the jury of the three theories under which the defendant could be found to have violated § 34.^[13]  At the close of her charge, the defendant objected to the judge’s failure to instruct the jury that it is not a violation of law to deliver, procure, or furnish alcohol to one’s own child.  The judge overruled the objection.  The verdict slips as to these indictments permitted the jury to find the defendant not guilty or guilty on any or all of these theories.  During deliberations, the jury asked the judge to “clarify the law on procuring, delivering, and furnishing alcohol to your own child.”  The judge replied in writing that “[t]he exception concerning your own child applies only to ‘procuring’ and ‘furnishing’ but does not apply to ‘delivery’ of alcohol.”  The defendant again objected to the exclusion of the “own child” exception from the delivery theory of liability.  The jury later asked, “Does the law prevent us from finding the defendant guilty of procuring and/or furnishing alcohol to his own child?”  The judge responded, “Yes.”  The jury then found the defendant guilty of contributing to the delinquency of Maxine under all three theories, but found him guilty of contributing to the delinquency of his own daughter only under the theory of delivery.

On appeal, the defendant challenges only his conviction of contributing to the delinquency of a child by delivering alcohol to his own daughter, arguing that the statutory exclusion for furnishing or procuring alcohol to one’s own child also applies to the delivery of alcohol to one’s own child.  We agree.

“It is a canon of statutory construction that ‘statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.’”  Welch v. Sudbury Youth Soccer Ass’n, Inc., 453 Mass. 352, 354-355 (2009), quoting Sullivan v. Brookline, 435 Mass. 353, 360 (2001).  “While a court must normally follow the plain language of a statute, it need not adhere strictly to the statutory words if to do so would lead to an absurd result or contravene the clear intent of the Legislature.”  Commonwealth v. Rahim, 441 Mass. 273, 278 (2004).