Commonwealth v. Jacob M. Hebert.

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-572

COMMONWEALTH

vs.

JACOB M. HEBERT.

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

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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.

1 We need not decide precisely when the recording requirement
became operative after the grand jury presentation here –-

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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:

whether twenty-eight days after the Grassie decision, or when
the Grassie rescript actually issued on June 14, 2019, or at
some other time.

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"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

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"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

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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

2 The defendant filed an "Emergency Motion for Stay of Execution
of Sentence Pending Appeal" (and supporting memorandum) on or
about April 28, 2020. As grounds for that motion, the defendant
claimed, among other things, that the indictments failed to
delineate the forms of penetration. On May 13, 2020, the
Commonwealth filed an affidavit of the prosecutor who presented
the case to the grand jury in support of its opposition to that
motion. On July 2, 2021, the defendant filed a "Motion to
Vacate Convictions and to Dismiss Indictments" (and supporting
memorandum). In a memorandum of decision and order dated May
31, 2022, the Superior Court rejected all the defense claims.

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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 bases his claim of misleading the

grand jury upon the very affidavit that he claims we cannot

consider.

We also discern no impropriety in the filing of the

prosecutor's affidavit. A party may file affidavits in

connection with postconviction motions. Mass. R. Crim. P. 30

(c), as appearing in 435 Mass. 1501 (2001). "The primary

purpose of (rule 30 [c] [3]) is to encourage the disposition of

post conviction motions upon affidavit." Commonwealth v.

Stewart, 383 Mass. 253, 260 (1981), quoting Reporter's Notes to

Mass. R. Crim. P. 30, at 484 (1979). The judge here credited

the affidavit and concluded that the prosecutor provided

erroneous joint venture instructions to the grand jury. For

reasons previously discussed, we disagree with part of the

judge's conclusion because the affidavit does not state that the

prosecutor provided any instructions to the grand jury relative

to joint venture. "A judge who has seen and heard the witnesses

is in a better position to determine their credibility than is a

court which is confined to the printed record. The situation is

different in regard to findings made upon written evidence. In

that respect this court stands in the same position as did the

trial judge, and reaches its own conclusion unaffected by the

8
findings made by the trial judge." Commonwealth v. Novo, 442

Mass. 262, 266 (2004), quoting Berry v. Kyes, 304 Mass. 56, 57

(1939). See Commonwealth v. Tremblay, 480 Mass. 645, 654-655

(2018).

3. Single indictment for multiple acts. We also disagree

with the defendant's contention that he may have been convicted

of an uncharged crime. He argues that because the jury and

grand jury heard evidence about multiple acts of penetration of

the victim, and the indictments in his view charged only three

distinct, separate penetrative acts, there existed "a 50% chance

[or greater] that the defendant was convicted of an uncharged

crime." Several factors obviated any such risk. First, as

credited by the judge, the prosecutor asserted in his affidavit

that he "informed" the grand jurors that "each of the three

aggravated rape indictments referred to a different form of

penetration."3 Second, the judge instructed the jurors, without

objection, that they "must unanimously agree on the specific

3 The defendant argues, without citation to authority, that
"because the indictments that issued do not actually reflect
such a grouping, and because the only evidence of such intent is
the Commonwealth's self-serving report of an unrecorded
statement to the grand jury, such argument does not save the
otherwise defective indictment from duplicity." We decline to
consider this further challenge to consideration of the
affidavit, as the defendant's "briefing on this issue does not
rise to the level of appellate argument. See Mass. R. A. P. 16
(a) (9) (A), as appearing in 481 Mass. 1628 (2019)."
Commonwealth v. Beverly, 485 Mass. 1, 16 (2020).

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rape (vaginal, oral, anal) for that particular indictment." He

added, "[i]n order to satisfy this element all of the jurors

must agree on at least the specific rape for that indictment.

If you do not all agree on the specific rape that is listed for

that indictment, you must find the defendant not guilty of this

charge." Such a "unanimity instruction" is proper where an

indictment alleges a single offense, and the "evidence shows

multiple acts of allegedly criminal conduct." Commonwealth v.

Keevan, 400 Mass. 557, 566 (1987). Third, the judge's

instructions and the verdict slips, again without objection,

made it clear that jurors had to base a unanimous verdict under

each indictment on vaginal, oral, or anal aggravated rape,

respectively. Fourth, the rapes occurred during a single

continuing episode. "[I]t is well established that a single

indictment for rape is proper where the alleged multiple acts of

penetration are part of a continuing criminal episode."

Commonwealth v. Crowder, 49 Mass. App. Ct. 720, 721-722 (2000).

Contrast Commonwealth v. Barbosa, 421 Mass. 547, 550 (1995)

("very real possibility that the defendant was convicted of a

crime for which he was not indicted," where grand jury returned

single drug distribution indictment but evidence showed two

separate drug transactions with two different buyers on the same

day). Fifth, the defense theory at trial was that the victim

consented, not that any of the acts she described did not occur.

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4. Jury instructions. Next, having carefully reviewed the

jury instructions "as a whole," we are satisfied that the judge

did not err. Commonwealth v. Kelly, 470 Mass. 682, 697 (2015).

The defendant points to two claimed errors in the instructions

that allowed: (1) the defendant to be "convicted on a joint-

venture theory based on his role abetting penetration rather

than committing penetration," and (2) the possibility that "the

jury convicted the Defendant of aggravation based on the co-

defendant's conduct on the acquitted count" of rape by oral

penetration. Based upon the instructions provided and the

evidence presented, there was no error and no "substantial risk

of a miscarriage of justice." Freeman, 352 Mass. at 564.

One form of aggravated rape is proven through the

additional element that the crime was "committed by a joint

enterprise." G. L. c. 265, § 22 (a). Initially, the judge

explained the "joint enterprise" element by incorporating the

"joint venture" language in Commonwealth v. Zanetti, 454 Mass.

449, 470 (2009) (Appendix).4 He instructed the jury that a

knowing participant in a crime is guilty if, with the intent

required for the crime, he "personally committed" the acts or

aided or assisted another in committing the crime.

4 The judge consistently used the phrase "joint venture"
throughout the jury instructions.

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On his own, the judge raised a concern with counsel at

sidebar that the Zanetti instruction allowing a guilty verdict

if a crime is "personally committed" may conflict with the

necessity of proving a "joint enterprise" for aggravated rape.

The judge noted, "I think I have to eliminate the fact that they

can find them guilty if they simply committed the rape."

Defense counsel agreed. The judge told jurors that the

instruction he just provided on joint venture was not correct

and to disregard it. He emphasized that the Commonwealth must

prove beyond a reasonable doubt that the defendants were engaged

in a "joint venture." He then provided the Zanetti instruction

without the earlier reference to a crime being "personally

committed."

After the jury retired to deliberate, the prosecutor

questioned a portion of the joint venture instruction. The

prosecutor suggested that the instruction should have retained

the "personally committed language" while simply adding the

phrase, "with another." After a lengthy discussion, the judge

agreed, and defense counsel said he was "on board with that."

Accordingly, the judge brought the jury back into the

courtroom and instructed them for a third and final time. He

emphasized once again that aggravated rape required that the

Commonwealth also prove the defendants engaged in a "joint

venture." He then defined the elements of a joint venture:

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"One, that the defendant personally committed all of the acts

that constitute the crime with the co-defendant and with the

shared intent to commit the crime; or, two that the defendant

aided or assisted another person in committing the crime . . .

." The judge asked jurors "to keep in mind the other aspects of

the joint venture that I mentioned to you," and he followed up

by providing written jury instructions. These written

instructions also stated that the Commonwealth had to prove the

codefendants "consciously acted together before or during the

crime with the shared intent to make the crime succeed."

The judge's corrected instructions, taken together,

properly informed the jury that the Commonwealth had the burden

of proving both shared intent and "that the rape[s] [were]

committed by at least two people." Commonwealth v. Medeiros,

456 Mass. 52, 60 (2010). See Commonwealth v. Jansen, 459 Mass.

21, 28 n.20 (2011) (joint enterprise for aggravated rape

examined through joint venture evidence); Commonwealth v. Basey,

82 Mass. App. Ct. 278, 281-283 (2012) (joint enterprise for

aggravated rape proved through evidence of joint venture).

Even if the instructions were susceptible to another

interpretation, we do not see any "substantial risk of a

miscarriage of justice." Freeman, 352 Mass. at 564. At trial,

the defendant disputed the issue of consent. He testified that

during consensual sex with the victim on the floor, she "ma[d]e

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eye contact" with Jones (sitting nearby on a couch) and

"pull[ed] on his pant leg. . . . [and] "[I]t seemed like she was

kind of inviting him . . . into a threesome." The defendant

testified that he declined the threesome, got dressed, sat

nearby on the couch, and waited while the victim and Jones

engaged in consensual sex on the floor. The defendant used his

phone to take a "two-second video" of the pair having sex on the

floor, and the victim warned, "You'd better not be recording."

The defendant laughed and showed them the videotape. The victim

dressed in the bathroom, and Jones dressed in the living room.

The defendant testified that the victim was "really pissed off"

about the videotape. The defendant and Jones left, but Jones

returned briefly and retrieved a phone that he mistakenly left

behind. Given the focus on consent and the defendant's own

testimony admitting that he and Jones had sex with the victim in

close physical and temporal proximity, there is no risk that

jurors convicted the defendant for conduct outside the scope of

a joint enterprise under G. L. c. 265, § 22 (a).

Finally, we see no error in the judge's response to the

following hypothetical questions posed by the jury:

"Suppose Defendant A is charged with [aggravated] rape
orally, and we believe that the Commonwealth has proven
beyond a reasonable doubt that Defendant A is guilty of all
three elements.

"Also, suppose that Defendant B is charged with aggravated
rape orally, and we do not believe that the Commonwealth

14
has proven beyond a reasonable doubt that Defendant B is
guilty of Element 1 or Element 2, but we do believe that
the Commonwealth has proven beyond a reasonable doubt that
Defendant B is guilty of Element 3.

"First question. Would the verdict for Defendant A for the
charge of aggravated rape orally be guilty or not guilty?

"Second question. Would the verdict for Defendant B for
the charge of aggravated rape orally be guilty or not
guilty?"

The judge conferred with counsel, and counsel agreed that jurors

should be instructed to consider each indictment separately and

to decide whether the Commonwealth proved each element beyond a

reasonable doubt. The defendant now claims the judge told

jurors "that the mens rea of the co-defendant was irrelevant to

the question of aggravation." Contrary to the defense claim,

the entirety of the judge's response does not show such an

error:

"First of all, each of the indictments, and there are six
indictments you have before you, each of the –- those
indictments must be considered separately by you.

"Your verdict of not guilty or guilty for one indictment
should not and does not control your verdict for any other.
They must be considered absolutely separate.

"Secondly, in order for the defendants to be found guilty
with respect to any one of the indictments, you must find
that the Commonwealth has proven its case by finding that
beyond a reasonable doubt that they have proven each of the
three elements that I've presented to you.

"So in order to find either [of] the defendants guilty with
respect to an indictment, you have to find beyond a
reasonable doubt that the Commonwealth has proven each and
every one of those elements.

15
"If the Commonwealth has failed to prove any one of those
elements, you must find the defendant not guilty.

"Okay. So, again, with those principles in mind, you must
consider each indictment separately.

"Whatever happens on any other indictment should not and
does not affect or control you with respect to another
indictment.

"And, in order for you to find anyone guilty, the
Commonwealth must prove every single element of the three
elements that you have before you on guilty beyond a
reasonable doubt."

This response was well "within the discretion of the trial

judge, who has observed the evidence and the jury firsthand."

Commonwealth v. Wood, 469 Mass. 266, 293 (2014), quoting

Commonwealth v. Delacruz, 463 Mass. 504, 518 (2012). There is

nothing in this response that reduced the Commonwealth's burden

of proof on the aggravated rape indictments or contradicted the

judge's prior instruction that the Commonwealth had to prove

that the codefendants "consciously acted together before or

during the crime with the shared intent to make the crime

succeed." The judge was not required to inform the jury, as the

defendant argues, that "no defendant may be convicted of a joint

venture unless at least one other is also guilty of a joint

venture." The defendant's argument is based on Medeiros, 456

Mass. at 59-60, but that case concerned whether inconsistent

joint enterprise verdicts required relief, not the content of

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jury instructions on joint enterprise. Thus, we discern no

error.

Judgments affirmed.

Order denying motion to
vacate convictions and to
dismiss indictments
affirmed.

By the Court (Neyman, Sacks &
Hodgens, JJ.5),

Clerk
Entered: June 2, 2023.

5 The panelists are listed in order of seniority.

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