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15-P-275 Appeals Court
TEMISTOCLES OMAR SANTANA vs. COMMONWEALTH.
No. 15-P-275.
Essex. January 8, 2016. - September 30, 2016.
Present: Trainor, Agnes, & Massing, JJ.
Erroneous Conviction. Commonwealth, Claim against. Practice,
Civil, Proceeding against Commonwealth, Summary judgment,
Instructions to jury. Rape.
Civil action commenced in the Superior Court Department on
January 18, 2012.
The case was heard by Richard E. Welch, III, J., on motions
for summary judgment.
William S. Smith (Jennifer H. O'Brien with him) for the
plaintiff.
Jennifer H. Flynn, Assistant Attorney General, for the
Commonwealth.
AGNES, J. The question before us is whether the plaintiff,
Temistocles Omar Santana, is eligible to bring a claim for
relief under the erroneous conviction statute, G. L. c. 258D,
because his conviction was reversed due to the effect of an
2
improper jury instruction.1 The plaintiff contends that he is
eligible to bring such a claim because he was granted judicial
relief "on grounds which tend to establish the [plaintiff's]
innocence." G. L. c. 258D, § 1(B)(ii). We disagree, and affirm
the judgment that entered on the parties' on cross motions for
summary judgment.
Background. In 2009, the plaintiff and another (the
codefendant) were each indicted as youthful offenders on three
indictments charging aggravated rape by joint venture and one
indictment of assault with intent to commit rape.2 The cases
were tried together. The trial judge instructed the jury on the
lesser included offenses of rape on each of the three charges of
aggravated rape. The jury returned a single verdict of guilty
of rape against the plaintiff on the count charging him as a
joint venturer in which it was alleged that the crime was
1
In their consolidated direct appeals from the judgments of
conviction, the codefendant's conviction was affirmed and the
plaintiff's conviction was reversed in a memorandum and order
pursuant to our rule 1:28. See Commonwealth v. Phineas P., 79
Mass. App. Ct. 1109 (2011). Phineas P. is a pseudonym that
refers to the plaintiff in this case.
2
The charges arose out of a sexual encounter between the
juveniles and a sixteen year old girl at the apartment of a
mutual friend. At trial, both the plaintiff and the codefendant
admitted they had engaged in sexual activity with the victim,
but contended that she had given her consent. The codefendant's
conviction of the lesser included offense of rape was affirmed.
Commonwealth v. Phineas P., supra.
3
committed by means of the codefendant's penis.3 The plaintiff
was acquitted on all other charges. The plaintiff was sentenced
to a term of four to six years in State prison. The plaintiff
was released from prison in April, 2011, as the result of a
decision by a panel of this court which determined that the
judge should not have instructed the jury on the lesser included
offense of rape, and that "no rational view of the evidence"
supported the jury's verdict that the plaintiff was guilty of
rape, but not aggravated rape.4
3
A review of the record from the plaintiff's appeal of his
criminal conviction established that the indictments for
aggravated rape against the plaintiff alleged the following: the
plaintiff, youthful offender, (1) "did have sexual intercourse
with [the victim], to wit [the codefendant's] penis inside her
genital opening, and did compel [her] to submit by force and
against her will, and such sexual intercourse was committed by a
joint venture enterprise;" (2) "did have unnatural sexual
intercourse with [the victim], to wit: his fingers inside her
genital opening, and did compel [her] to submit by force and
against her will, and such sexual intercourse was committed by a
joint venture enterprise;" (3) "did have sexual intercourse with
[the victim], to wit his penis inside her genital opening, and
did compel [her] to submit by force against her will, and such
sexual intercourse was committed by a joint venture enterprise."
4
After noting that the evidence warranted a lesser included
offense instruction against the codefendant and that the
codefendant's conviction of rape was supported by evidence that
he had engaged in penile/vaginal intercourse with the victim,
the court explained the same result could not be reached in the
plaintiff's case because the indictment on which he was
convicted was the one in which the rape was alleged to have been
committed by means of the codefendant's penis. "The
Commonwealth's evidence with respect to this charge was that
[the plaintiff] sat on the victim's chest as [the codefendant]
had sexual intercourse with her. Although these facts, if
believed, would support a finding that [the plaintiff] was
4
Discussion. The erroneous conviction statute, G. L.
c. 258D, §§ 1-9, represents a limited waiver of the
Commonwealth's sovereign immunity so as to permit eligible
persons who were wrongfully convicted and imprisoned to file a
civil action in the Superior Court and to pursue remedies
including recovery of up to $500,000 in damages. See Guzman v.
Commonwealth, 458 Mass. 354, 355-356 (2010) (Guzman II). In the
present case, the parties agree that whether the plaintiff is
eligible for relief under § 1(B) of the statute depends on
whether his conviction was reversed "on grounds which tend to
establish [his] innocence." G. L. c. 258D, § 1(B)(ii). "[T]he
eligibility requirement is 'separate and distinct from the
merits of the claim of relief that a claimant must establish at
trial,' namely that he or she did not commit the charged
offense." Renaud v. Commonwealth, 471 Mass. 315, 319 (2015),
quoting from Irwin v. Commonwealth, 465 Mass. 834, 839, 842
(2013). See also Guzman II, supra at 360-361 ("we do not
discern a legislative intent that the determination of
eligibility be tantamount to a testing of the merits of a
claimant's case").
guilty of aggravated rape as a joint venturer [on the
indictment], it provided no hypothetical basis for the jury to
believe he was guilty of the lesser included offense of rape [on
that indictment]." (Footnote omitted.) Commonwealth v. Phineas
P., supra.
5
The eligibility requirement does not mean that the person
seeking relief must establish that his conviction was reversed
"on the basis 'of compelling or overwhelming exculpatory
evidence,' that is, on the grounds that they were actually
innocent." Guzman II, supra at 359, quoting from Guzman v.
Commonwealth, 74 Mass. App. Ct. 466, 477 (2009) (Guzman I).
However, the eligibility requirement does mean that the
conviction was reversed "upon facts and circumstances probative
of the proposition that the claimant did not commit the crime."
Guzman I, supra.
Summary judgment is appropriate only where no material
facts are in dispute. Massachusetts Hosp. Assn., Inc. v.
Department of Pub. Welfare, 419 Mass. 644, 649 (1995). "On
appellate review of a judge's decision on cross motions for
summary judgment, we view the record in the light most favorable
to the party against whom the judge allowed summary judgment,
here the plaintiff[]." Marhefka v. Zoning Bd. of Appeals of
Salem, 79 Mass. App. Ct. 515, 516 (2011), citing Albahari v.
Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248 &
n.4 (2010). We review de novo the Superior Court judge's
rulings on the parties' cross motions for summary judgment.
Miller v. Cotter, 448 Mass. 671, 676 (2007).
In Guzman II, supra, the Supreme Judicial Court supplied an
illustrative list of cases in which reversals or orders granting
6
a motion for a new trial would not satisfy the eligibility
threshold established by G. L. c. 258D. Id. at 358 n.6.5 While
we have "rejected a categorical approach," Santana v.
Commonwealth, 88 Mass. App. Ct. 553, 554 (2015), in determining
whether the grounds for judicial relief "tend to establish
innocence," a person seeking relief under G. L. c. 258D does not
satisfy the eligibility threshold established by G. L. c. 258D,
§ 1(B)(ii), merely by establishing that the basis upon which his
conviction was reversed was "'consistent' with innocence without
any tendency to establish it." Guzman II, supra at 358
(emphasis in original).
On the plaintiff's direct appeal from his conviction, the
panel explained that on the indictment charging the codefendant
with aggravated rape by joint venture in which the
Commonwealth's theory was that there was penile penetration of
the victim by the codefendant while the plaintiff sat on her
chest, the evidence against the codefendant warranted a lesser
included offense instruction and supported the codefendant's
conviction of rape. This is because the jury could have
concluded that the codefendant engaged in sexual intercourse
with the victim by force and without her consent, but rejected
5
One of the cases included in that list was Commonwealth v.
Vizcarrondo, 427 Mass. 392 (1998), where a new trial was granted
due to incorrect jury instructions.
7
the evidence that the plaintiff participated in the act as a
joint venturer. There was, therefore, nothing inconsistent
about a verdict of not guilty of the greater offense, but guilty
of the lesser offense with regard to the codefendant. However,
the same could not be said of the plaintiff; that is, on the
corresponding indictment charging the plaintiff with aggravated
rape by joint venture, a verdict of not guilty on the greater
offense of aggravated rape would not permit a jury to find the
plaintiff guilty of the lesser included offense of rape based on
the evidence offered in support of that indictment.
Commonwealth v. Phineas P., supra.
What is not resolved by our earlier panel decision
reversing the plaintiff's conviction, however, is whether the
jury found the plaintiff not guilty of the greater offense based
on a compromise verdict6 or whether the jury reached that result
6
In Simmons v. Fish, 210 Mass. 563 (1912), the Supreme
Judicial Court described a compromise verdict as follows: "A
verdict which is the result of real harmony of thought growing
out of open-minded discussion between jurors with a willingness
to be convinced, with a proper regard for opinions of others and
with a reasonable distrust of individual views not shared by
their fellows and of fair yielding of one reason to a stronger
one, each having in mind the great desirability of unanimity
both for the parties and for the public, is not open to
criticism. But a verdict which is reached only by the surrender
of conscientious convictions upon one material issue by some
jurors in return for a relinquishment by others of their like
settled opinion upon another issue and the result is one which
does not command the approval of the whole panel, is a
compromise verdict founded upon conduct subversive of the
soundness of trial by jury." Id. at 571.
8
because it concluded that the Commonwealth had not proved its
case. In short, in reversing the plaintiff's conviction of
rape, this court concluded that the trial judge had improperly
instructed the jury on a lesser included offense option with the
result that the jury's verdict of guilty of the lesser included
offense was not only unsupported by the evidence, but it
rendered ambiguous the jury's decision to find the defendant not
guilty of the greater offense.7 Thus, while it is true that
principles of double jeopardy preclude any further prosecution
of the plaintiff on the earlier indictment, see Adams v.
Commonwealth, 415 Mass. 360, 362 (1993), his conviction was not
reversed for reasons that tend to establish his innocence. See
Commonwealth v. Roth, 437 Mass. 777, 777 (2002) (although judge
erred in taking partial verdict on offense as charged after jury
reported it was deadlocked because any such verdict may not be a
"reliable" indicator of whether the defendant is guilty or not
7
This case is readily distinguishable from Guzman II,
supra, in which the error was the trial court's omission of
exculpatory evidence, and Commonwealth v. Drumgold, 458 Mass.
367 (2010), in which a new trial was granted based on
recantation of several Commonwealth witnesses and one witness's
undisclosed medical condition impacting her ability to identify
the defendant. Id. at 371-375. In both of those cases, which
led to the plaintiffs being eligible to seek relief under c.
258D, "the fact finder was forestalled from making a fully
informed decision as to the defendant's guilt or innocence"
because of the omission of evidence probative of the defendant's
innocence. Id. at 378, citing Guzman II, supra at 362.
9
guilty of the crime as charged, the defendant may not be retried
on any such charge based on principles of double jeopardy).
Judgment affirmed.
TRAINOR, J., concurring. I write separately from the
majority in order to emphasize and elaborate on the central
legal question in this case. I believe that Santana has not
shown that he has "been granted judicial relief by a [S]tate
court of competent jurisdiction, on grounds which tend to
establish the innocence of the individual." G. L. c. 258D,
§ 1(B)(ii), inserted by St. 2004, c. 444, § 1.
Santana was convicted of rape as a lesser included offense
of an aggravated rape count. See Commonwealth v. Phineas P., 79
Mass. App. Ct. 1109 (2011) (Phineas P.) (The plaintiff and the
codefendant were both convicted of penile/vaginal rape with the
codefendant's penis). The dissent contends that "a panel of
this court reversed Santana's conviction on grounds that tend to
establish Santana's innocence within the meaning of G. L.
c. 258D." However, this analysis misinterprets the statute's
requirements of "grounds which tend to establish innocence."
"[T]ends to establish innocence," G. L. c. 258D, is
properly understood to mean judicial relief on "grounds
[resting] on facts and circumstances probative of the
proposition that the claimant did not commit the crime[]
charged." Guzman v. Commonwealth, 458 Mass. 354, 365 (2010)
(Guzman II) (emphasis added). "[T]he eligibility requirement is
'separate and distinct from the merits of the claim of relief
that a claimant must establish at trial,' namely that he or she
2
did not commit the charged offense." Renaud v. Commonwealth,
471 Mass. 315, 319 (2015), quoting from Irwin v. Commonwealth,
465 Mass. 834, 839, 842 (2013).
At the summary judgment phase,1 the court does not determine
Santana's actual innocence to determine his eligibility under
G. L. c. 258D. The court must only determine if the grounds for
relief in the underlying case were for "grounds which tend to
establish the innocence of the individual." G. L. c. 258D,
§ 1(B)(ii). The statute defines "innocence" as the individual
"did not commit the crimes or crime charged in the indictment or
complaint or any other felony arising out of or reasonably
connected to the facts supporting the indictment or complaint,
or any lesser included felony." G. L. c. 258D, § 1(C)(vi)
(emphasis added).
As the Supreme Judicial Court noted in Guzman II, "it is
possible to envision many potential claimants whose convictions
are reversed because of procedural or evidentiary errors or
structural deficiencies at their trials that could well be
1
Summary judgment is appropriate when there are no material
facts are in dispute. Massachusetts Hosp. Assn., Inc. v.
Department of Pub. Welfare, 419 Mass. 644, 649 (1995). "On
appellate review of a judge's decision on cross motions for
summary judgment, we view the record in the light most favorable
to the party against whom the judge allowed summary judgment,
here the plaintiff[]." Marhefka v. Zoning Bd. of Appeals of
Salem, 79 Mass. App. Ct. 515, 516 (2011), citing Albahari v.
Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248 &
n.4 (2010).
3
'consistent' with innocence without any tendency to establish
it."2 Guzman II, supra at 358, citing Guzman v. Commonwealth, 74
Mass. App. Ct. 466, 477 (2009) (Guzman I) (emphasis in
original). Importantly, the court listed incorrect jury
instructions as one of these errors or deficiencies. Guzman II,
supra at 358 n.6, citing Commonwealth v. Vizcarrondo, 427 Mass.
392, 392 (1998). Here, the basis for Santana's reversal was the
judge's incorrect jury instruction. The judge instructed the
jury:
"If however after your consideration of all the evidence
you determine that the Commonwealth has proven beyond a
reasonable doubt that the defendants raped [the victim] but
has not proven beyond a reasonable doubt that the rape was
committed by a joint venture, then you shall return a
verdict of guilty only to the lesser included offense of
rape."
Phineas P., 79 Mass. App. Ct. at n.5 (emphasis added).
2
"That is, to be eligible, a plaintiff must demonstrate
more than that his conviction was set aside because 'new
evidence would probably have been a real factor in the jury's
deliberations,' Commonwealth v. Grace, 397 Mass. 303, 306
(1986); or that an error at trial '"materially influence[d]" the
. . . verdict,' Commonwealth v. Alphas, 430 Mass. 8, 13 (1999),
quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967); or
even that evidence withheld by the Commonwealth would have
provided some 'significant aid to the defendant's case,'
Commonwealth v. Laguer, 448 Mass. 585, 594 (2007), quoting
Commonwealth v. Healy, 438 Mass. 672, 679 (2003)." Guzman II,
supra at 360. Santana has failed to demonstrate any of these in
his claim.
4
Even putting that aside, the "unique facts of this case" do
not tend to establish innocence.3 See Renaud, supra at 319.
"[J]urors are always presumed to follow the instructions they
are given." Commonwealth v. McCaster, 46 Mass. App. Ct. 752,
764 (1999). See also Commonwealth v. Helfant, 398 Mass. 214,
228 (1986); Commonwealth v. Maynard, 436 Mass. 558, 571 (2002);
Commonwealth v. Berry, 466 Mass. 763, 770 (2014). "[J]urors may
have the power to ignore the law, but their duty is to apply the
law as interpreted by the court, and they should be so
instructed." United States v. Boardman, 419 F.2d 110, 116 (1st
Cir. 1969). It is clear from the instructions given that the
jury fulfilled their duty to apply the law, albeit incorrectly
instructed and interpreted by the court, and they found beyond a
reasonable doubt that the "defendants raped" the victim. It is
inconceivable to suggest that the ground of incorrect jury
instructions "tends to establish innocence" in this instance.
See G. L. c. 258D, § 1(B)(ii).
This court, in the underlying rule 1:28 memorandum and
order, acquitted Santana based on a legal inconsistency. See
Phineas P., supra. "A legally inconsistent verdict arises 'when
there exists no set of facts that the government could have
3
As Santana v. Commonwealth, 88 Mass. App. Ct. 553, 554
(2015), made clear, we should not use a categorical approach to
determine the eligibility of a plaintiff to bring an erroneous
felony conviction claim.
5
proved in the particular case that would have resulted in the
verdict at issue.'" Commonwealth v. Sylvia, 456 Mass. 182, 196
(2010), quoting from Commonwealth v. Gonzalez, 452 Mass. 142,
151 n.8 (2008). It was therefore legally inconsistent for
Santana to be convicted of unlawful sexual intercourse with the
victim using the codefendant's penis. Notwithstanding the
erroneous instruction, the finding of fact that the defendants
raped the victim is not consistent with innocence where the jury
found facts to support one of the crimes charged but Santana
received a windfall based on a procedural error, the jury
instruction.
I find it necessary to address the dissent's reliance on
certain language from the criminal appeal. The panel in the
criminal appeal stated "no rational view of the evidence
supports the finding . . . that [Santana] was guilty of rape,
but not aggravated rape, with respect to the conduct charged
[rape by force via joint venture to wit: the codefendant's
penis in the victim's genital opening]." Phineas P., supra
(emphasis added). Clearly this language is specifically
describing that it was legally impossible for Santana to be
guilty of rape with the codefendant's penis. This is certainly
not a fact that tends to establish innocence. See G. L.
c. 258D, § 1(B)(ii).
6
Santana "must demonstrate that the grounds for relief had
some 'meaningful tendency' to establish innocence, not just a
tendency to assist the defendant's chances for acquittal."
Guzman II, supra at 360. Here, the defendant has not
demonstrated any grounds for relief that establish innocence,
only those that assisted the defendant in an acquittal. See
Ibid. The panel in Phineas P., supra, continued by stating that
although the Commonwealth's theory of the case, "if believed,
would support a finding that [Santana] was guilty of aggravated
rape as a joint venturer, it provided no hypothetical basis for
the jury to believe he was guilty of the lesser included offense
of rape." Ibid. "Finally, by acquitting [him] of both
aggravated rape and the lesser included offense of rape on the
other counts of the indictment, the jury expressly rejected the
claim that [Santana] himself had sex with the victim against her
will." Ibid. This statement by the panel is inconsistent with
the declaration they made pursuant to the jury instruction given
and needlessly ventures into the mind of the jury. "It is well
understood that jury verdicts will not be disturbed because they
are factually inconsistent." Commonwealth v. Diaz, 19 Mass.
App. Ct. 29, 33 (1984) citing Dunn v. United States, 284 U.S.
390, 393-394 (1932).
"The rule recognizes the power, possibly salutary, of
juries to compromise and to act out of leniency." Commonwealth
7
v. Diaz, supra. The jury was well within its power to reject
the claims against Santana of aggravated rape, including the
charge of aggravated rape with his own penis, against the victim
while still finding he was guilty of rape against the victim.
Indeed, by applying the law as they were instructed, this is
precisely what happened. Accordingly, Santana's claim does not
demonstrate any facts that tend to establish his innocence and
the claim was properly dismissed at the summary judgment phase.
MASSING, J., dissenting. In 2011, a panel of this court
reversed the plaintiff's conviction of rape and ordered the
dismissal of what was then the only remaining count in the
indictment against him, the jury having acquitted him on all
other counts. The panel held that the trial judge had
erroneously instructed the jury on the lesser-included offense
of rape with respect to the count charging the plaintiff with
aggravated rape as a joint venturer,1 because "no rational view
of the evidence supports the finding . . . that he was guilty of
rape, but not aggravated rape, with respect to the conduct
charged." Phineas P. v. Commonwealth, 79 Mass. App. Ct. 1109
(2011). The panel then vacated the conviction because the
evidence at trial "provided no hypothetical basis for the jury
to believe [the plaintiff] was guilty of the lesser included
offense of rape." The panel observed that "the jury, by
necessary implication, rejected the evidence that he was holding
the victim down while [the codefendant] committed the rape,"
"rejected the evidence that [the plaintiff] attempted to put his
penis in the victim's mouth," and "expressly rejected the claim
1
The judge had instructed the jury, "If however after your
consideration of all the evidence you determine that the
Commonwealth has proven beyond a reasonable doubt that the
defendants raped [the victim] but has not proven beyond a
reasonable doubt that the rape was committed by a joint venture,
the you shall return a verdict of guilty only to the lesser
included offense of rape." Phineas P. v. Commonwealth, 79 Mass.
App. Ct. 1109, n.5 (2011) (emphasis added).
2
that [the plaintiff] himself had sex with the victim against her
will." Ibid. Because the panel granted the plaintiff relief on
grounds that tend to establish his innocence, see G. L. c. 258D,
§ 1(B)(ii), he is eligible for an opportunity to prove his
innocence to a jury. Accordingly, I respectfully dissent.
The erroneous conviction statute limits eligibility for
compensation to claimants "who have been granted judicial relief
by a [S]tate court of competent jurisdiction, on grounds which
tend to establish the innocence2 of the individual." G. L.
c. 258D, § 1(B)(ii), inserted by St. 2004, c. 444, § 1. The
threshold requirement "does not express an intent to limit
eligibility . . . to individuals whose convictions were vacated
or reversed strictly on the basis 'of compelling or overwhelming
exculpatory evidence,' that is, on the grounds that they were
actually innocent." Guzman v. Commonwealth, 458 Mass. 354, 359
(2010) (Guzman II), quoting from Guzman v. Commonwealth, 74
Mass. App. Ct. 466, 477 (2009) (Guzman I). "Rather, grounds
which 'tend to establish' a plaintiff's innocence require that a
conviction be overturned 'on grounds resting upon facts and
circumstances probative of the proposition that the claimant did
2
"Innocence" is further defined as meaning that the
individual "did not commit the crimes or crime charged in the
indictment or complaint or any other felony arising out of or
reasonably connected to the facts supporting the indictment or
complaint, or any lesser included felony." G. L. c. 258D,
§ 1(C)(vi).
3
not commit the crime.'" Irwin v. Commonwealth, 465 Mass. 834,
844 (2013), quoting from Guzman II, supra at 359.
We are concerned here only with the threshold question of
eligibility for relief under c. 258D. "[T]he eligibility
requirement is 'separate and distinct from the merits of the
claim of relief that a claimant must establish at trial,' namely
that he or she did not commit the charged offense." Renaud v.
Commonwealth, 471 Mass. 315, 319 (2015), quoting from Irwin,
supra at 839, 842. See Guzman II, supra at 360-361 ("we do not
discern a legislative intent that the determination of
eligibility be tantamount to a testing of the merits of the
claimant's case"). The grounds on which the panel in the
criminal appeal granted judicial relief are not disputed.
"Where the grounds for relief are not in dispute, the question
whether they 'tend to establish' that the plaintiff did not
commit the crime is primarily a question of law." Id. at 365.
Our decisions have "rejected a categorical approach,"
Santana v. Commonwealth, 88 Mass. App. Ct. 553, 554 (2015), in
determining whether the grounds for judicial relief "tend to
establish innocence." Rather, we must examine "the unique facts
of this case [to] inform our decision." Renaud, supra. Here,
although an erroneous jury instruction was the underlying basis
for the plaintiff's criminal appeal, the panel's analysis and
basis for reversal were intensely factual, focusing on whether
4
the Commonwealth had established any factual basis for his
conviction. The panel concluded that the instruction was not
warranted because "no rational view of the evidence supports the
finding . . . that [the plaintiff] was guilty of rape, but not
aggravated rape, with respect to the conduct charged [rape by
force via joint venture to wit: the codefendant’s penis in the
victim's genital opening]." Phineas P., supra. The
Commonwealth's theory was that the plaintiff sat on the victim's
chest while his codefendant raped her. While this evidence, "if
believed, would support a finding that [the plaintiff] was
guilty of aggravated rape as a joint venturer, it provided no
hypothetical basis for the jury to believe he was guilty of the
lesser included offense of rape." Ibid.
The panel rejected the Commonwealth's invitation to affirm
the conviction "by speculating that the jury were convinced that
[the plaintiff] had raped the victim in a joint enterprise, but
were disposed through leniency to convict of the lesser included
offense." Ibid. The panel determined that engaging in such
speculation would not cure the judge's instructional error.
Moreover, the panel concluded that the jury made factual
findings in the plaintiff's favor. "More importantly, by
acquitting [the plaintiff] of aggravated rape on this charge,
the jury, by necessary implication, rejected the evidence that
5
he was holding the victim down while [the codefendant] committed
the rape." Ibid.
Furthermore, the panel suggested that no factual basis
existed for any felony charges against the plaintiff. See G. L.
c. 258D, § 1(C)(vi) (defining "innocence" as meaning that the
individual "did not commit the crimes or crime charged in the
indictment or complaint or any other felony arising out of or
reasonably connected to the facts supporting the indictment or
complaint, or any lesser included felony"). By acquitting him
of assault with intent to rape, "the jury rejected evidence that
[the plaintiff] attempted to put his penis in the victim's
mouth." Phineas P., supra. By acquitting him of the other
counts of the indictment, "the jury expressly rejected the claim
that [the plaintiff] himself had sex with the victim against her
will." Ibid.
Thus, the panel's reversal of the conviction, and its order
entering a judgment of acquittal, were based on its
determination that the jury had rejected both the contention
that the plaintiff had engaged in nonconsensual sex with the
victim and the theory that he participated in his codefendant's
sexual assault on the victim. In my view, the panel's decision
conclusively establishes the plaintiff's eligibility, because he
was "granted judicial relief by a state court of competent
jurisdiction, on grounds which tend to establish [his]
6
innocence." G. L. c. 258D, § 1(B)(ii). Even if we were to
speculate that the jury's verdict was the result of a compromise
(notwithstanding that convicting the plaintiff of rape with the
codefendant's penis is both legally and factually untenable),
the statute directs us to focus the eligibility determination on
the grounds underlying the plaintiff's grant of judicial relief.
Accordingly, I would reverse the order of summary judgment
in favor of the Commonwealth and order the entry of partial
summary judgment in the plaintiff's favor -- but only on the
threshold issue of eligibility under G. L. c. 258D. The
determination of eligibility does not entitle the plaintiff to
relief. "He is entitled to relief only if he proves at trial by
clear and convincing evidence that he did not commit the
offenses charged." Renaud, 471 Mass. at 320.