Commonwealth v. Russell (Lawyers Weekly No. 10-008-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11602 COMMONWEALTH vs. GERALD RUSSELL. Essex. November 3, 2014. – January 26, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ. Reasonable Doubt. Practice, Criminal, Reasonable doubt, Instructions to jury, Lesser included offense. Supreme Judicial Court, Superintendence of inferior courts. Rape. Indecent Assault and Battery. Indictments found and returned in the Superior Court Department on September 18, 1990. The cases were tried before Richard E. Welch, III, J. The Supreme Judicial Court granted an application for direct appellate review. Eric S. Brandt, Committee for Public Counsel Services, for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. Alex G. Philipson, amicus curiae, submitted a brief. Bruce Ferg, amicus curiae, submitted a brief. CORDY, J. “Then, what is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined.” Commonwealth v. Webster, 5 Cush. 295, 320 (1850). So begins the venerable Webster charge on reasonable doubt. The Webster charge informs the jury that a reasonable doubt exists when “they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge” (emphasis supplied). Id. For more than 150 years, this charge has delivered the preferred language for explaining reasonable doubt to jurors sitting on criminal trials in the Commonwealth. Yet, it has never been required and, in this case, it was eschewed in favor of an instruction that permitted a conviction if the jury were “firmly convinced” of the defendant’s guilt. The defendant was acquitted on eighteen counts of statutory rape, but convicted on seven counts of the lesser included offense of indecent assault and battery on a child under the age of fourteen. He appeals his convictions on grounds that the charge on reasonable doubt was constitutionally inadequate and that the lesser included offenses should not have been submitted to the jury. With respect to the former, he argues that, even if the charge was constitutionally sound, we should exercise our general superintendence power to require the Webster charge in all criminal trials. We granted the defendant’s application for direct appellate review and now conclude that the judge’s instruction on reasonable doubt passed constitutional muster and that there was no error in the submission of the lesser included offenses to the jury. Nonetheless, we […]