Commonwealth v. White (Lawyers Weekly No. 10-165-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11919 COMMONWEALTH vs. ROBERT E. WHITE. Plymouth. February 9, 2016. – October 19, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1] Rape. Limitations, Statute of. Evidence, Indictment, Corroborative evidence, Prior misconduct. Practice, Criminal, Indictment, Instructions to jury. Indictment found and returned in the Superior Court Department on October 3, 2008. The case was tried before Richard J. Chin, J. The Supreme Judicial Court granted an application for direct appellate review. Kathryn Hayne Barnwell for the defendant. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. LENK, J. The defendant was convicted in 2014 of one count of rape of a child, G. L. c. 265, § 23. The underlying indictment, returned in 2008 and amended in 2014, alleged that he had raped his daughter on “diverse dates” between September 29, 1979, and 1981, when she was between four and six years old. On appeal, the defendant chiefly raises two sets of claims, both of which concern the statute of limitations, G. L. c. 277, § 63. First, he argues that the Commonwealth did not meet its burden at trial of proving beyond a reasonable doubt that the indictment was timely brought, and, in addition, that the trial judge incorrectly instructed the jury as to that issue. Second, he maintains that, even if the indictment were timely brought, the Commonwealth failed to provide the requisite independent corroboration of any incidents of rape that occurred more than twenty-seven years before the indictment was returned. See G. L. c. 277, § 63. He maintains, in this regard, that the corroboration provided by the Commonwealth at trial — consisting exclusively of evidence of uncharged sexual misconduct — was insufficient. He argues also that the judge failed to instruct the jury as to the corroboration requirement. We conclude, with respect to the first set of issues, that the Commonwealth presented sufficient evidence from which the jury could determine, beyond a reasonable doubt, that the indictment was timely returned. We also conclude, however, that the jury instruction concerning how to make this determination was incorrect, that the erroneous instruction precluded the jury from properly ascertaining whether the indictment was timely, and that the incorrect instruction resulted in a substantial risk of a miscarriage of justice. Accordingly, on this basis alone, the defendant’s conviction must be vacated and set […]