Commonwealth v. Russell

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revision and are superseded by the advance sheets and bound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
 2

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
 3

no error in the submission of the lesser included offenses to

the jury. Nonetheless, we also conclude that, pursuant to our

superintendence power, a modernized version of the Webster

charge must be given in criminal trials on a prospective basis.

The defendant is not entitled to a special retroactive

application of this new rule. Consequently, we affirm the

judgments of conviction.1

1. Background. We summarize the evidence presented at

trial, reserving certain details for discussion of the issues on

appeal. In 1980, the defendant, who was then the boy friend and

later the husband of the victim's mother, began living with the

victim and her family. The victim was six years of age at that

time. According to the victim, it was not long before the

defendant began sexually abusing her. It began with the

defendant's touching of the victim's breasts and vaginal area

while she was in the bathtub. The victim testified that the

abuse steadily became more invasive: the defendant placed his

fingers between the folds of her genital opening, rubbed his

penis between her buttocks and in her vaginal area, performed

oral sex on her, and required her to perform oral sex on him.

The victim also testified that, over the course of the

abuse, she observed the defendant choke, slap, and punch her

1
We acknowledge the amicus briefs of Bruce Ferg and Alex G.
Philipson.
 4

mother, throw objects at her, and rip hair out of her head. The

defendant told the victim that he would stop abusing her mother

if the victim submitted to his advances. He said that if she

told anyone about his sexual advances, the victim and her

siblings would be placed in foster homes and their mother would

go to jail. Nonetheless, in 1985, the victim told her mother

that the defendant had been "touching" her. The victim's mother

confronted the defendant, who denied the allegation.

The character of the abuse escalated in May, 1987, when the

victim was approximately thirteen years of age. It was then,

the victim alleged, that the defendant began having full vaginal

intercourse with her in addition to the other acts previously

described. The final act of abuse occurred on October 31, 1989.

As a condition to going out on Halloween, the victim alleged

that she was required to perform oral sex on the defendant. The

victim did not return home, instead seeking the refuge of a

friend -- to whom she then revealed her history of sexual abuse

at the hands of the defendant.

On September 19, 1990, an Essex County grand jury returned

six indictments, each charging the defendant with three counts

of statutory rape, G. L. c. 265, § 23. Each indictment

reflected a distinct period of time during which the rapes were

alleged to have occurred, with each charge representing a

distinct mode of rape during the time frame of the corresponding
 5

indictment.2 Rather than stand trial, the defendant fled to

Mexico and did not return until 2010. In 2012, the defendant

was tried by jury in the Superior Court. The judge instructed

the jury, sua sponte and over the defendant's objection, on the

lesser included charge of indecent assault and battery as to

seven counts reflecting the earliest incidents of alleged penile

and digital penetration.3 The judge reasoned that, "given [the

victim's] state of development . . . there may be an issue as to

whether there was penetration or not. That does not include

2
The indictments were based on the following periods: (i)
March 1, 1980, to July 31, 1982; (ii) July 1, 1983, to November
30, 1983; (iii) February 1, 1984, to April 30, 1984; (iv)
January 1, 1985, to August 31, 1985; (v) March 1, 1986, to May
31, 1988; and (vi) June 1, 1988, to November 1, 1989. The gaps
between the indictments represented the various periods in which
the victim was not living with the defendant. The victim lived
with her father for approximately ten months, in a foster home
for approximately four months, and with her grandmother for ten
weeks. At other points, the victim's mother moved the family
away from the defendant out of fear for herself and her
children. On each occasion, however, they resumed living with
the defendant, at which time, the abuse of the victim resumed as
well.
3
The jury were given special verdict slips listing the
lesser included offense with respect to the following charges:
charge no. 2 (fingers in genital opening between March 1, 1980,
and July 31, 1982); charge no. 3 (penis in genital opening
between March 1, 1980, and July 31, 1982); charge no. 5 (fingers
in genital opening between July 1, 1983, and November 30, 1983);
charge no. 8 (fingers in genital opening between February 1,
1984, and April 30, 1984); charge no. 9 (penis in genital
opening between February 1, 1984, and April 30, 1984); charge
no. 11 (fingers in genital opening between January 1, 1985, and
August 30, 1985); and charge no. 12 (penis in genital opening
between January 1, 1985, and August 30, 1985).
 6

those charges that specify oral intercourse . . . because there,

again, there's not a real issue of penetration there."

The judge also gave what he said was his "traditional

instruction" as to what is meant by proof beyond a reasonable

doubt. Defense counsel objected to the instruction,

specifically requesting the language of the Webster charge that

in order to convict the jurors must feel "an abiding conviction

to a moral certainty of the truth of the charges." The judge

overruled the objection and submitted the case to the jury.

During deliberations, the jury asked for clarification of the

reasonable doubt standard. Defense counsel again asked that the

jury be given the Webster charge. The judge again denied the

request, electing instead to repeat his initial instruction.

On each of the eighteen counts of statutory rape, the jury

found the defendant not guilty. However, on each of the seven

counts of indecent assault and battery on a child, the jury

found the defendant guilty. The defendant was sentenced to

three consecutive and three concurrent terms of not less than

nine but not more than ten years in the State prison, as well as

a consecutive term of five years of probation.

2. Discussion. a. The reasonable doubt instruction. In

a criminal case, due process requires that the Commonwealth

prove the defendant's guilt beyond a reasonable doubt.

Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995), citing In
 7

re Winship, 397 U.S. 358, 364 (1970). The defendant in this

case contends that the judge's charge on reasonable doubt

violated the due process clause of the Fourteenth Amendment to

the United States Constitution and art. 12 of the Massachusetts

Declaration of Rights by diluting the Commonwealth's burden of

proof and by shifting it, in part, to the defendant. "A

constitutionally deficient reasonable doubt instruction amounts

to a structural error which defies analysis by harmless error

standards." Pinckney, supra at 342.4

"[T]he Constitution does not require that any particular

form of words be used in advising the jury of the government's

burden of proof." Pinckney, 419 Mass. at 342, quoting Victor v.

Nebraska, 511 U.S. 1, 5 (1994). However, the words used must

"impress[] upon the factfinder the need to reach a subjective

state of near certitude of the guilt of the accused." Pinckney,

supra at 344. See Victor, supra at 15, quoting Jackson v.

Virginia, 443 U.S. 307, 315 (1979). In 1850, Chief Justice

Lemuel Shaw elaborated on the proof required to create such near

certitude:

"Then, what is reasonable doubt? It is a term often
used, probably pretty well understood, but not easily
defined. It is not mere possible doubt; because every thing

4
A substantially similar instruction was given in
Commonwealth v. Figueroa, 468 Mass. 204, 219 & n.6 (2014). Yet,
because the defendant in that case failed to object, we reviewed
for a substantial likelihood of a miscarriage of justice. Id.
at 221.
 8

relating to human affairs, and depending on moral evidence,
is open to some possible or imaginary doubt. It is that
state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of
jurors in that condition that they cannot say they feel an
abiding conviction, to a moral certainty, of the truth of
the charge. The burden of proof is upon the prosecutor.
All the presumptions of law independent of evidence are in
favor of innocence; and every person is presumed to be
innocent until he is proved guilty. If upon such proof
there is reasonable doubt remaining, the accused is
entitled to the benefit of it by an acquittal. For it is
not sufficient to establish a probability, though a strong
one arising from the doctrine of chances, that the fact
charged is more likely to be true than the contrary; but
the evidence must establish the truth of the fact to a
reasonable and moral certainty; a certainty that convinces
and directs the understanding, and satisfies the reason and
judgment, of those who are bound to act conscientiously
upon it. This we take to be proof beyond reasonable doubt;
because if the law, which mostly depends upon
considerations of a moral nature, should go further than
this, and require absolute certainty, it would exclude
circumstantial evidence altogether."

Webster, 5 Cush. at 320. These carefully selected words became

known as the Webster charge, which, with minor modification, has

since been "the preferred and adequate charge on the

Commonwealth's burden of proof." Commonwealth v. Watkins, 433

Mass. 539, 546-547 (2001).5

5
During the years 1850-1900, the Webster charge received
the approval of numerous State supreme courts and the United
States Supreme Court. See, e.g., Miles v. United States, 103
U.S. 304, 309, 312 (1880); Mose v. State, 36 Ala. 211, 230-231
(1860); People v. Strong, 30 Cal. 151, 155 (1866); Lovett v.
State, 30 Fla. 142, 162-163 (1892); King v. Ahop, 7 Haw. 556,
560-561 (1889); Carlton v. People, 150 Ill. 181, 192 (1894);
State v. De Rance, 34 La. Ann. 186, 195 (1882); State v. Staley,
14 Minn. 105, 122-123 (1869); Morgan v. State, 51 Neb. 672, 698-
699 (1897); Morgan v. State, 48 Ohio St. 371, 377 (1891);
 9

That is not to say, however, that the Webster charge --

and, in particular, its "moral certainty" language -- has been

immune to criticism. In Victor, 511 U.S. at 13-16, the United

States Supreme Court traced the lineage of the phrase "moral

certainty" and concluded that "the common meaning of the phrase

has changed since it was used in the Webster instruction, and it

may continue to do so to the point that it conflicts with the

Winship standard." Id. at 16. Notwithstanding this admonition,

the Court held that, in the context of the Webster charge as a

whole, the phrase did not suggest "a standard of proof lower

than due process requires or as allowing conviction on factors

other than the government's proof." Id.

In a concurring opinion in the Victor case, Justice

Ginsburg extolled the virtues of the Federal Judicial Center's

Pattern Criminal Jury Instruction 21 (1998), which provides, in

relevant part:

"Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant's guilt. There are very
few things in this world that we know with absolute
certainty, and in criminal cases the law does not require
proof that overcomes every possible doubt. If, based on
your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime
charged, you must find him guilty. If on the other hand,
you think there is a real possibility that he is not
guilty, you must give him the benefit of the doubt and find
him not guilty."

Henderson v. State, 14 Tex. 503, 514 (1855); Kollock v. State,
88 Wis. 663, 665-666 (1894).
 10

Victor, 511 U.S. at 27 (Ginsburg, J., concurring), quoting

Federal Judicial Center, Pattern Criminal Jury Instruction 21.

According to Justice Ginsburg, the "firmly convinced" standard

of Instruction 21 represents a marked improvement over the

"anachronism of 'moral certainty'" set forth in the Webster

charge. Id. at 26. Several State supreme courts and Federal

Circuit Courts of Appeal have likewise endorsed Instruction 21.6

Here, the trial judge's instruction on reasonable doubt,

which is set forth in the margin,7 incorporated elements of both

6
See, e.g., United States v. Artero, 121 F.3d 1256, 1258
(9th Cir. 1997), cert. denied, 522 U.S. 1133 (1998); United
States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995); United
States v. Williams, 20 F.3d 125, 131-132 & n.4 (5th Cir.), cert.
denied, 513 U.S 891 (1994); State v. Portillo, 182 Ariz. 592,
596 (1995); Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996);
State v. Frei, 831 N.W.2d 70, 78-79 (Iowa 2013); State v. Reyes,
116 P.3d 305, 314-315 (Utah 2005).
7
The judge explained reasonable doubt to the jury as
follows:

"The term is often used and it probably is pretty well
understood by jurors, but it's not easy for judges to
define it to jurors. Proof beyond a reasonable doubt does
not mean proof beyond all possible doubt, for everything in
the lives of human beings is open to some possible or
imaginary doubt.
"On the other hand, it is not enough for the
Commonwealth to establish a probability, even a strong
probability, that the defendant is more likely to be guilty
than not guilty. That is not enough.
"So what is proof beyond a reasonable doubt? Well,
ladies and gentlemen, proof beyond a reasonable doubt is
proof that leaves you firmly convinced of the defendant's
guilt. There are very few things in this world that we
know with absolute certainty, and in criminal cases, the
 11

the Webster charge and Instruction 21. Notably, he omitted the

"moral certainty" and "abiding conviction" language found in the

Webster charge and, in its place, inserted the "firmly

convinced" and "real possibility" language found in Instruction

21.

The defendant argues that the firmly convinced standard is

too similar to the clear and convincing evidence standard, which

sets the burden of proof higher than a preponderance of the

evidence but lower than proof beyond a reasonable doubt. See

Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871

(1975). This position finds support in State v. Perez, 90 Haw.

113, 128-129 (Ct. App. 1998), aff'd in relevant part, 90 Haw.

65, 67 (1999). In that case, the Intermediate Court of Appeals

of Hawaii opined that "it is possible to be firmly convinced of

a fact, yet still retain a reasonable doubt." Id. at 128.

Under Hawaii law, the clear and convincing evidence standard is

satisfied by a "firm belief of conviction." Id. Given the

similarity of that phrase to the phrase "firmly convinced," the

court concluded that the latter communicated a burden of proof

law does not require proof that overcomes every possible
doubt. If, based on your consideration of the evidence,
you are firmly convinced that the defendant is guilty of
the crime charged, you must find him guilty. If, on the
other hand, you think there is a real possibility that the
defendant is not guilty, you must give him the benefit of
the doubt and find him not guilty. This is what we mean by
proof beyond a reasonable doubt."
 12

below proof beyond a reasonable doubt as required under the due

process clause of the Hawaii State Constitution. Id. at 129.

The reasoning of the Perez case has not gained traction in

other jurisdictions. Some courts have distinguished the Perez

case as unique to Hawaii law. See, e.g., Williams v. State, 724

N.E.2d 1093, 1096 & n.2 (Ind. 2000). In State v. Jackson, 283

Conn. 111, 120-124 (2007), the Connecticut Supreme Court flatly

rejected it, noting the growing support for Instruction 21 and

the unlikelihood that jurors in a criminal case even would be

aware of the clear and convincing standard. Moreover -- and

akin to the Supreme Court's analysis of moral certainty in

Victor -- the Jackson court observed that, in the context of the

entire charge, there was not a reasonable likelihood that use of

the phrase "firmly convinced" lowered the prosecution's burden

of proof. Jackson, 283 Conn. at 124-125.

We join those courts in declining to follow the Perez case.

In addition to Justice Ginsburg's endorsement of Instruction 21,

see Victor, 511 U.S. at 26-27, the Federal Courts of Appeals

have consistently upheld it under the due process clause. See,

e.g., United States v. Rodriguez, 162 F.3d 135, 146 (1st Cir.

1998), cert. denied, 526 U.S. 1152 (1999); United States v.

Artero, 121 F.3d 1256, 1258 (9th Cir. 1997), cert. denied, 522

U.S. 1133 (1998); United States v. Conway, 73 F.3d 975, 980

(10th Cir. 1995); United States v. Williams, 20 F.3d 125, 131-
 13

132 & n.4 (5th Cir. 1994), cert. denied, 513 U.S. 891 (1994);

United States v. Taylor, 997 F.2d 1551, 1557 (D.C. Cir. 1993).

It bears noting, however, that the question under the Federal

Constitution "is whether there is a reasonable likelihood that

the jury understood the instructions to allow conviction based

on proof insufficient to meet the Winship standard." Victor,

511 U.S. at 6. In contrast, in evaluating a reasonable doubt

instruction under art. 12, we employ a standard that is more

favorable to the criminal defendant, looking instead "for

possible misunderstandings by reasonable jurors." Commonwealth

v. Rosa, 422 Mass. 18, 27 n.10 (1996), and cases cited. We do

not perceive such a possibility in this case.

Unlike the Hawaii standard for clear and convincing

evidence, our cases and instructions on clear and convincing

evidence are not cast in terms of the "firmness" of the jury's

conclusions. Rather, the instructions endorsed by this court in

Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 588

(1977), inform the jury that:

"The burden [of persuasion] is not a burden of convincing
you that the facts which are asserted are certainly true or
that they are almost certainly true, or are true beyond a
reasonable doubt. It is, however, greater than a burden of
convincing you that the facts are more probably true than
false. The burden imposed is to convince you that the
facts asserted are highly probably true, that the
probability that they are true or exist is substantially
greater than the probability that they are false or do not
exist. If then you believe upon consideration and
comparison of all the evidence in the case that there is a
 14

high degree of probability that the facts are true you must
find that the fact[s] have been proved."

Id. at 588 n.3, quoting McBaine, Burdens of Proof: Degrees of

Belief, 32 Cal. L. Rev. 242, 263-264 (1944). Even if the jury

in this case were familiar with the clear and convincing

evidence standard, they specifically were instructed that even a

"strong probability" of the defendant's guilt would not support

a conviction. See Jackson, 283 Conn. at 123-124 (jury unlikely

to confuse firmly convinced standard with clear and convincing

standard).

Moreover, we disagree with the defendant that requiring a

"firm" conviction of guilt sets a lower burden of proof than

requiring an "abiding" conviction. The word "firm" is defined

as "not subject to change, revision, or withdrawal," "fixed,"

"settled," "definite," and "established." Webster's Third New

International Dictionary 856 (2002). The word "abiding" is

defined as "continuing or persisting in the same state without

changing or diminishing." Id. at 3. In short, the words convey

the same concept to the jury. Viewed in context, we do not

think a reasonable juror would have misunderstood the

Commonwealth's burden to be anything less than proof beyond a

reasonable doubt.

We also disagree with the defendant that the "real

possibility" language diluted and shifted the burden of proof in
 15

this case. In Rodriguez, 162 F.3d at 145, the jury were

instructed that "[e]verything in our common experience is open

to some possible or imaginary doubt. . . . On the other hand, if

you think there is a real possibility that the defendant is not

guilty of the charges, you must give the defendant the benefit

of that doubt and find him not guilty." The court explained

that a "trial judge may require a 'real possibility' of doubt

because '[a] fanciful doubt is not a reasonable doubt.'" Id. at

146, quoting Victor, 511 U.S. at 17. Viewing the charge in its

totality, the court concluded that "the likelihood of juror

confusion or mistake [was] extremely remote." Rodriguez, supra.

See Victor, 511 U.S. at 27 (Ginsburg, J., dissenting) ("'firmly

convinced' standard for conviction, repeated for emphasis, is

further enhanced by the juxtaposed prescription that the jury

must acquit if there is a 'real possibility' that the defendant

is innocent").

In State v. Putz, 266 Neb. 37, cert. denied, 540 U.S. 1013

(2003), the jury were "instructed several times that the burden

of proof rested on the State, and . . . explicitly told that

this burden never shifts." Id. at 48. The Nebraska Supreme

Court concluded that in light of "the context of the overall

charge to the jury considered as a whole, the jury could not

have interpreted the 'real possibility' language as shifting the

burden of proof to [the defendant]." Id. See Williams, 724
 16

N.E.2d at 1096, quoting Taylor, 997 F.2d at 1557 ("the trial

court had 'charged the jury on the presumption of innocence and

the government's burden of proof, thus eliminating any concern

that the jury might think the defendant was required to show a

"real possibility" of his own innocence'").

Here, the instructions accompanying the "real possibility"

language were not unlike those in the Rodriguez and Putz cases.

The jury were instructed that "[p]roof beyond a reasonable doubt

does not mean proof beyond all possible doubt, for everything in

the lives of human beings is open to some possible or imaginary

doubt"; and that "[t]here are very few things in this world that

we know with absolute certainty, and in criminal cases, the law

does not require proof that overcomes every possible doubt."

The jury also were reminded repeatedly that the Commonwealth

bore the sole burden of proof of each of the crimes charged and

that the defendant did not have to prove anything. In light of

these instructions, it is clear that the phrase "real

possibility" was offered in contrast to the possibility of

"imaginary doubt." See Rodriguez, 162 F.3d at 146. A

reasonable juror listening to the entire charge would not have

mistaken the level or locus of the burden of proof.

Consistent with the clear majority view, we conclude that

the charge on reasonable doubt given by the judge in this case

adequately "impress[ed] upon the [jury] the need to reach a
 17

subjective state of near certitude of the guilt of the accused."

Victor, 511 U.S. at 15, quoting Jackson, 443 U.S. at 315. See

Welch, "Give Me That Old Time Religion": The Persistence of the

Webster Reasonable Doubt Instruction and the Need to Abandon It,

48 New Eng. L. Rev. 31, 44-45 (2013) (collecting cases). As

such, the instruction met the minimum requirements of due

process under the Fourteenth Amendment and art. 12. See Victor,

511 U.S. at 15; Pinckney, 419 Mass. at 344.

Yet, mere threshold adequacy is not a sufficient basis to

endorse an instruction of such importance -- particularly where

a preferable alternative is readily available. See State v.

Bennett, 161 Wash. 2d 303, 315 (2007) (en banc) ("While the

instruction may meet constitutional muster, it does not mean

that it is a good or even desirable instruction"). The

reasonable doubt standard "provides concrete substance for the

presumption of innocence -- that bedrock 'axiomatic and

elementary' principle whose 'enforcement lies at the foundation

of the administration of our criminal law.'" Winship, 397 U.S.

at 363, quoting Coffin v. United States, 156 U.S. 432, 453

(1895).

In Bennett, 161 Wash. 2d at 312-313, the Supreme Court of

Washington reviewed a similar reasonable doubt instruction

derived from Instruction 21. Finding no constitutional error,

the court affirmed the judgment of conviction. Id. at 318.
 18

Nonetheless, the court observed that, "[e]ven if many variations

of the definition of reasonable doubt meet minimal due process

requirements, the presumption of innocence is simply too

fundamental, too central to the core of the foundation of our

justice system not to require adherence to a clear, simple,

accepted, and uniform instruction." Id. at 317-318. Relying on

its inherent supervisory power, the court then directed the

Washington trial courts to use only the approved pattern jury

instructions on proof beyond a reasonable doubt. Id. at 318.

We agree with the reasoning of the Bennett case. We have

cautioned that "[w]here issues as important as reasonable doubt

are concerned, judges would do well to follow approved models,"

Commonwealth v. Riley, 433 Mass. 266, 271 n.9 (2001), quoting

Commonwealth v. Burke, 44 Mass. App. Ct. 76, 81 (1997), and that

individualized embellishments among judges "can only create

uncertainty and breed needless appeals." Commonwealth v.

Therrien, 371 Mass. 203, 208 (1976). Although we have

previously declined to require the use of particular words,

e.g., Commonwealth v. Powell, 433 Mass. 399, 405 (2001), such a

requirement is well within the scope of our general

superintendence power over the courts. See G. L. c. 211, § 3;

Commonwealth v. DiGiambattista, 442 Mass. 423, 448 (2004)

(mandating jury instruction pursuant to superintendence power).
 19

For more than a century, the Webster charge has served as

the gold standard against which instructions on reasonable doubt

have been measured. See Watkins, 433 Mass. at 546-547. The

enduring virtue of the Webster charge has been that it conveys

to the jury not only the degree of certitude required, but also

"the proper solemn consideration," in reaching a judgment of

conviction. Rosa, 422 Mass. at 29. Indeed, it is "hard to

imagine, without recourse to prolixity, a charge more reflective

of the solemn and rigorous standard intended." Lanigan v.

Maloney, 853 F.2d 40, 43 (1st Cir. 1988), cert. denied, 488 U.S.

1007 (1989).

The air of solemnity imparted by the Webster charge

underscores the moral consequence of sitting in judgment of

one's peers, while "prevent[ing] the jury from disregarding the

high standard of proof required or from improperly determining

guilt based on the ethics or morality of the defendant's

conduct." Watkins, 433 Mass. at 547. The jury aptly have been

described as "the oracle of the citizenry in weighing the

culpability of the accused, and should [they] find him guilty

[they] condemn[] him with the full legal and moral authority of

the society." United States v. Gilliam, 994 F.2d 97, 101 (2d

Cir.), cert. denied, 510 U.S. 927 (1993). The United States

Supreme Court has deftly explained how a juror's duty to
 20

determine the facts intertwines with his or her moral authority

to determine the defendant's guilt:

"Evidence thus has force beyond any linear scheme of
reasoning, and as its pieces come together a narrative
gains momentum, with power not only to support conclusions
but to sustain the willingness of jurors to draw the
inferences, whatever they may be, necessary to reach an
honest verdict. . . . Jury duty is usually unsought and
sometimes resisted, and it may be as difficult for one
juror suddenly to face the findings that can send another
human being to prison, as it is for another to hold out
conscientiously for acquittal. When a juror's duty does
seem hard, the evidentiary account of what a defendant has
thought and done can accomplish what no set of abstract
statements ever could, not just to prove a fact but to
establish its human significance, and so to implicate the
law's moral underpinnings and a juror's obligation to sit
in judgment. Thus, the prosecution may fairly seek to
place its evidence before the jurors, as much to tell a
story of guiltiness as to support an inference of guilt, to
convince the jurors that a guilty verdict would be morally
reasonable as much as to point to the discrete elements of
a defendant's legal fault."

Old Chief v. United States, 519 U.S. 172, 187-188 (1997), citing

Gilliam, 994 F.2d at 100-102. We conclude that it would be

imprudent to endorse a reasonable doubt instruction that glosses

over the moral underpinnings of the jury's work in a criminal

case, and we decline to do so.

We appreciate the risk, articulated by the United States

Court of Appeals for the First Circuit, that "[m]oral certainty

could be interpreted to mean that the certainty is based on a

feeling, i.e., moral conviction, rather than facts." United

States v. Indorato, 628 F.2d 711, 721 n.8 (1st Cir.), cert.

denied, 449 U.S. 1016 (1980). Accordingly, we have recognized
 21

that "references to 'moral certainty' made in isolation and

without further explanation may amount to an erroneous

instruction on reasonable doubt." Commonwealth v. Denis, 442

Mass. 617, 622 (2004). By the same token, our cases hold that

the "use of the term does not constitute reversible error when

the instruction includes other language giving the term an

appropriate context." Id. Although the traditional Webster

charge has been and continues to be a constitutionally

sufficient source of such context, we are mindful of the

criticism surrounding some of the outmoded language employed

therein.8

For all of these reasons, we now exercise our inherent

supervisory power to require a uniform instruction on proof

beyond a reasonable doubt that uses more modern language, but

preserves the power, efficacy, and essence of the Webster

charge. G. L. c. 211, § 3. We conclude that the model Webster

charge nearly accomplishes this task, but would benefit from

8
See Victor v. Nebraska, 511 U.S. 1, 23 (1994) (Kennedy,
J., concurring) ("It was commendable for Chief Justice Shaw to
pen an instruction that survived more than a century, but, as
the Court makes clear, what once might have made sense to jurors
has long since become archaic"); see also Welch, "Give Me That
Old Time Religion": The Persistence of the Webster Reasonable
Doubt Instruction and the Need to Abandon It, 48 New Eng. L.
Rev. 31, 31-32 (2013) ("Despite the Supreme Judicial Court's
reverence for the definition of 'reasonable doubt' as described
in the 1850 Commonwealth v. Webster decision, courts should use
the cut and paste feature on their word processors, abandon the
outmoded portions of that instruction, and define this most
important concept in comprehensible, everyday language").
 22

further clarification of the phrase "moral certainty." See

Instruction 2.180 of the Model Jury Instructions for Use in the

District Court (2009). Therefore, going forward, Massachusetts

judges sitting on criminal trials are to instruct the jury as

follows:

"The burden is on the Commonwealth to prove beyond a
reasonable doubt that the defendant is guilty of the
charge(s) made against him (her).

"What is proof beyond a reasonable doubt? The term is
often used and probably pretty well understood, though it
is not easily defined. Proof beyond a reasonable doubt
does not mean proof beyond all possible doubt, for
everything in the lives of human beings is open to some
possible or imaginary doubt. A charge is proved beyond a
reasonable doubt if, after you have compared and considered
all of the evidence, you have in your minds an abiding
conviction, to a moral certainty, that the charge is true.
When we refer to moral certainty, we mean the highest
degree of certainty possible in matters relating to human
affairs -- based solely on the evidence that has been put
before you in this case.

"I have told you that every person is presumed to be
innocent until he or she is proved guilty, and that the
burden of proof is on the prosecutor. If you evaluate all
the evidence and you still have a reasonable doubt
remaining, the defendant is entitled to the benefit of that
doubt and must be acquitted.

"It is not enough for the Commonwealth to establish a
probability, even a strong probability, that the defendant
is more likely to be guilty than not guilty. That is not
enough. Instead, the evidence must convince you of the
defendant's guilt to a reasonable and moral certainty; a
certainty that convinces your understanding and satisfies
your reason and judgment as jurors who are sworn to act
conscientiously on the evidence.

"This is what we mean by proof beyond a reasonable
doubt."
 23

In consequence of this decision, the traditional Webster charge

should no longer be used as the instruction on reasonable doubt

in this Commonwealth.9

Relying on Commonwealth v. Adjutant, 443 Mass. 649, 666-667

(2005), the defendant contends that he is entitled to the

benefit of this new instruction because he preserved the issue

below and argued for it on appeal. It is clear, however, that

"there is no constitutional requirement that the new rule or new

interpretation be applied retroactively, and we are therefore

free to determine whether it should be applied only

prospectively." Commonwealth v. Dagley, 442 Mass. 713, 721 n.10

(2004), cert. denied, 544 U.S. 930 (2005). In this vein, the

Commonwealth casts the Adjutant case as an exception applied

only in the context of some prejudicial error otherwise

avoidable by application of the new rule.

In the Adjutant case, a defendant on trial for manslaughter

was precluded from introducing evidence of the victim's prior

acts of aggression. The court created a new rule of evidence

allowing trial judges the "discretion to admit evidence of

specific acts of prior violent conduct that the victim is

9
It follows that the model instructions on reasonable doubt
presently in effect, as well as the instructions on reasonable
doubt found in Martin Glennon & O'Sullivan Smith, Instructions
Common to All Criminal Cases, Massachusetts Superior Court
Criminal Practice Jury Instructions § 1.1 (Mass. Cont. Legal
Educ. 2d ed. 2013), should no longer be used.
 24

reasonably alleged to have initiated, to support the defendant's

claim of self-defense." Adjutant, 443 Mass. at 664. Had this

new rule been applied at trial, "it may have been enough to

create reasonable doubt of the defendant's guilt." Id. at 666.

Given that the defendant argued for the new rule on appeal, we

concluded that he was entitled to a new trial with the benefit

of our decision.

We are persuaded that the Adjutant case is distinguishable

and that the defendant is not entitled to the exception

triggered by the circumstances of that case. Unlike in

Adjutant, here we are not concerned that in the absence of the

new rule there may have been a miscarriage of justice because,

as explained above, a reasonable jury would not have

misunderstood the reasonable doubt instruction that was given.

To the extent that the omission of the "moral certainty" and

"abiding conviction" language stripped that instruction of the

solemnity so strongly reinforced by the Webster charge, we "view

the charge in its entirety since the adequacy of instructions

must be determined in light of their over-all impact on the

jury." Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980).

Although, in other circumstances, we have disapproved of

instructions that "trivialize the awesome duty of the jury to

determine whether the defendant's guilt was proved beyond a

reasonable doubt," Commonwealth v. Ferreira, 373 Mass. 116, 129
 25

(1977), in this case, other aspects of the charge adequately

expressed the seriousness of the proceedings to the jury.10 The

defendant suffered no prejudice by the instructions given.

Contrast Adjutant, 443 Mass. at 666. The only commonality

between this case and the Adjutant case is the successful

request for a new rule, which, standing alone, is insufficient

to merit a retroactive application.

10
For example, the judge instructed the jury:

"You have heard the closing arguments of counsel, you
have heard all the evidence, and you are about to decide
this case. But I think it's appropriate for you and I to
stand alone, together in this courtroom, to reflect upon
our roles in this trial. You have noticed that whenever
you come into the courtroom, everyone else stands up. Why
do they show you that sign of respect? . . . It's out of
respect for your role here. Because you and I are the only
ones who have taken an oath to decide this case. I've
taken an oath to decide the legal aspects of the case
fairly. You have taken an oath to decide the facts of this
case fairly.

"Now, ladies and gentlemen, that is a burden that we
place on you, because no one likes to sit in judgment. No
one does. But we know, ladies and gentlemen, that you can
meet that burden, that you can handle that responsibility.
And why do we know that? Well, history teaches us that.
Because for over 200 years here in Essex County, jurors
just like you have been listening to evidence just like
this, looking at and listening to the same types of
witnesses, the same types of evidence, and then using your
common sense to determine, what do I believe, what is
important, what's a reasonable inference to draw. They
search for the truth. And there's no reason to think you
can't do that just as well as all those jurors who have
come before you. You are asked to be responsible citizens,
placed in a responsible situation, and there is no reason
to think you can't do it."
 26

b. Lesser included offense instruction. The defendant

argues that the judge committed error by instructing the jury on

the lesser included offense of indecent assault and battery.

Although the defendant seems to have invited the instruction by

moving for a required finding of not guilty on grounds of

insufficient evidence of penetration, he preserved the issue by

objecting to the instruction. See Commonwealth v. Berry, 431

Mass. 326, 334 (2000).

"Our case law on lesser included offense instructions has

consistently inquired 'whether the evidence at trial presents a

rational basis for acquitting the defendant of the crime charged

and convicting him of the lesser included offense.'"

Commonwealth v. Porro, 458 Mass. 526, 536 (2010), quoting

Commonwealth v. Donlan, 436 Mass. 329, 335 (2002). Where, as

here, "the issue is whether the judge erred in giving a lesser

included instruction rather than whether the judge erred by

failing to give such an instruction: it is not error to give a

lesser included offense instruction 'if on any hypothesis of the

evidence, the jury could have found the defendant[] guilty of

[the lesser included offense]' and not guilty of the greater

offense." Porro, supra at 537, quoting Commonwealth v. Thayer,

418 Mass. 130, 132 (1994). "In determining whether there was a

hypothetical basis for the jury to conclude that the defendant

was guilty of the lesser included offense, but not the offense
 27

charged, the judge may consider the possibility that the jury

reasonably may disbelieve the witnesses' testimony regarding an

element required of the greater, but not the lesser included,

offense." Porro, supra.

The defendant points out that, in Donlan, 436 Mass. at 337-

338, we held that an indecent assault and battery instruction

was inappropriate on similar facts. Yet, in that case, error

was alleged in the omission of a lesser included offense

instruction, id. at 338, a posture in which relief "depends not

only on the existence of a possible factual scenario justifying

a conviction of the lesser but not the greater offense, but also

on evidence of a dispute at trial about the element that

distinguishes the two offenses." Porro, 458 Mass. at 536. In

contrast, we have held that giving "a lesser included

instruction is not error where, for example, a jury reasonably

could be convinced by the victim's testimony that the defendant

sexually assaulted her but not be convinced beyond a reasonable

doubt that penetration occurred, even where the victim was not

cross-examined as to penetration and the defense attorney did

not mention it in closing argument." Id. at 537 n.10.

The Commonwealth submits that this case fits squarely

within the paradigm described in the Porro case, as the victim

testified not only to acts of penetration, but also to more

general contact between the defendant and the victim's vaginal
 28

area. Defense counsel's strategy was to suggest that the victim

fabricated the allegations of abuse in order to protect her

mother from the physical abuse being inflicted on her by the

defendant. The Commonwealth reasons that this strategy was

partially successful, as the verdicts suggest that the jury

credited the allegations of abuse but discredited the testimony

regarding penetration.

The defendant contests that conclusion, reciting the

familiar rule that "the jury's right to selective credibility

does not permit [them] to distort or mutilate any integral

portion of the testimony to permit them to believe an unfounded

hypothesis." Commonwealth v. Perez, 390 Mass. 308, 314 (1983),

S.C., 442 Mass. 1019 (2004). The defendant cites Commonwealth

v. Zanetti, 454 Mass. 449, 458 (2009), which we find

instructive. In that case, we held that the jury reasonably

could not believe testimony that the shooter was positioned to

the right of the victim, where the evidence unequivocally

established that the victim was shot in the left side of the

head. Id.

Here, the defendant characterizes the case put to the jury

as "a pure 'up or down' question on credibility -- whether the

alleged conduct did or did not occur." We disagree. Unlike in

the Zanetti case, evidence of penetrating contact would not have

made it illogical for the jury in this case to conclude that
 29

there was also evidence of nonpenetrating contact. If there was

indeed evidence of both nonpenetrating and penetrating contact,

the jury were free to believe the former and disbelieve the

latter. See Porro, 458 Mass. at 537 n.10; cf. Commonwealth v.

Hunton, 168 Mass. 130, 132 (1897) ("jury are absolutely free to

believe what is unfavorable to a prisoner in his statement, and

to disbelieve all that is favorable, if the character of the

statement has that effect upon their minds"). We therefore turn

to the evidence put before the jury.

With respect to the charges in question, there was

certainly evidence of penetration. The question, then, is

whether there also was sufficient evidence to support inferences

of indecent touching that fell short of penetration. On the

second and third charges, the victim testified that the

defendant "touched me with his fingers on my vaginal area" and

"rubb[ed] up against me with his penis area." On the fifth

charge, she testified that, "it started right back up -- the

abuse on me. . . . [T]he touching, the fondling, the above, all

that stuff started again." On the eighth and ninth charges, she

testified that the abuse was "[m]ore of the same -- touching,

fond -- fondling . . . rubbing his penis on me -- my butt . . .

[a]nd in my vagina area." On the eleventh and twelfth charges,

she testified that it was "[m]ore of the same"; "it was never

anything really different"; and [i]t was a lot of groping, like,
 30

I don't know how to say -- rubbing against my -- on my butt

[and] . . . on my -- in my -- like in between my legs from

behind, penis to my vagina."

Viewing the victim's testimony as a whole, we agree with

the Commonwealth that a reasonable jury could have found

indecent touching that fell short of penetration. Although the

victim did not testify expressly to nonpenetrating contact

during each period, the jury could have inferred such contact

from her testimony that "the above, all that stuff started

again," that the touching was "more of the same," and that it

"was never anything really different." The jury also could have

inferred that the defendant's penis came into contact with the

victim's vaginal area -- without penetrating her vagina -- when

he was rubbing up against her and placing his penis between her

legs and buttocks, a finding consistent with other testimony

that he "rubb[ed] his penis . . . in [her] vagina area."

Moreover, with respect to the testimony regarding actual

penetration, the jury properly could have considered the age of

the victim, who was between six and fifteen years old, depending

on the indictment. The jury also could have had reasonable

doubt as to the extent of the contact described by the victim.

For example, at one point the victim testified that the

defendant would "put[] his fingers inside me in my vagina."

When the prosecutor sought clarification: "His fingers, you
 31

said, in your vagina?," the victim replied: "Not -- not

completely penetrating yet." The prosecutor again asked for

clarification: "Not yet?," to which the victim repeated: "Not

yet." A reasonable juror could have taken this to mean that the

victim was exaggerating when she stated that the defendant

placed his fingers "inside [her] in [her] vagina."

Although exaggeration was not the defendant's precise

theory of the case, it is not necessarily inconsistent with that

theory. The jury may have thought that the victim exaggerated

the penetration aspects of her account because her first

complaint -- that the defendant "touched" her -- failed to

induce her mother to leave the defendant. Contrast Zanetti, 454

Mass. at 458. We need not tarry long, however, on the jury's

deliberative process. "It is sufficient that the evidence

permitted the inference which the jury obviously drew . . . ."

Commonwealth v. Nelson, 370 Mass. 192, 203 (1976). Compare

Porro, 458 Mass. at 537 n.10 ("jury reasonably could be

convinced by the victim's testimony that the defendant sexually

assaulted her but not be convinced beyond a reasonable doubt

that penetration occurred"), with Commonwealth v. Roderiques,

462 Mass. 415, 425 (2012) ("no view of the evidence" supported

instruction on lesser included offense). It was not error for

the judge to submit the lesser included offenses to the jury.

Judgments affirmed.