Commonwealth v. Buono

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SJC-12811

COMMONWEALTH vs. REYNOLD BUONO.

Norfolk. December 5, 2019. - March 26, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.

Rape. Limitations, Statute of. Grand Jury. Practice,
Criminal, Grand jury proceedings, Indictment, Dismissal.
Evidence, Grand jury proceedings, Indictment, Corroborative
evidence.

Indictments found and returned in the Superior Court
Department on November 3, 2017.

A motion to dismiss was heard by Thomas A Connors, J., and
questions of law were reported by him to the Appeals Court.

The Supreme Judicial Court granted an application for
direct appellate review.

Marguerite T. Grant, Assistant District Attorney (Lisa
Beatty, Assistant District Attorney, also present) for the
Commonwealth.
Inga S. Bernstein for the defendant.

CYPHER, J. The defendant, Reynold Buono, taught at Milton

Academy (school) from 1975 to 1987. In 2017, a grand jury
 2

returned three indictments against him for statutory rape, G. L.

c. 265, § 23, and three indictments for forcible rape of a

minor, G. L. c. 265, § 22A, for three crimes he allegedly

committed against a student during the 1980s. A Superior Court

judge allowed the defendant's motion to dismiss the indictments,

pursuant to G. L. c. 277, § 63. The Commonwealth filed a motion

for reconsideration and for reported questions. The judge did

not act on the request for reconsideration but reported two

questions of law to the Appeals Court. We granted the

Commonwealth's application for direct appellate review of the

reported questions, and the case was joined with the

Commonwealth's appeal from the dismissal of the indictments.

This case concerns certain provisions of G. L. c. 277,

§ 63, a statute that sets a twenty-seven year statute of

limitations on sex crimes against children; a requirement of

corroborating evidence if the crimes are charged after the

twenty-seven year limitation has expired; and a tolling

provision. The issues presented are whether (1) the tolling

provision in G. L. c. 277, § 63, applies to the requirement that

child rape charges brought more than twenty-seven years after

the commission of the alleged crime be supported by

corroborating evidence; (2) the evidentiary requirement of G. L.

c. 277, § 63, requires the Commonwealth to present the

corroborating evidence to the grand jury; (3) the Commonwealth
 3

presented sufficient corroborating evidence to the grand jury in

the present case; and (4) the Commonwealth's evidence

established probable cause for two separate incidents or three.

We hold that (1) the tolling provision of § 63 does not

apply to the corroborating evidence requirement; (2) the

Commonwealth must present the required corroborating evidence to

the grand jury; (3) here, the Commonwealth presented sufficient

corroborating evidence to the grand jury; and (4) the

Commonwealth's evidence established probable cause for only two

alleged incidents. Accordingly, we reverse the allowance of the

motion to dismiss indictments nos. 1782CR00399-001, -002, -004,

and -005; we affirm the dismissal of indictments nos.

1782CR00399-003 and -006.

Background. Beginning in July 2017, the Commonwealth

presented evidence of the defendant's alleged criminal acts to a

grand jury. Two witnesses testified during the proceedings:

Valter Pires, a detective with the Milton police department, and

Jerome Pieh, who was the headmaster of the school when the

defendant was employed there. The grand jury also was presented

with documentary evidence.1

1 The documentary evidence presented to the grand jury
included a 2017 letter sent by the school to the school
community, a report of an interview with the alleged victim
conducted by a private investigator, the defendant's personnel
files, records regarding the school's investigation into the
 4

We recite the facts as the grand jury could have found

them, reserving certain details for later discussion. As

explained infra, the defendant was indicted for his conduct in

Norfolk County, but the grand jury heard testimony regarding

events that occurred both in Norfolk County and elsewhere.

In response to an article in the Boston Globe in 2016,

school officials sent a letter to the school community regarding

concerns about allegations of sexual misconduct at the school.

The alleged victim, whom we shall call Roger, contacted the head

of the school. The school engaged a consulting firm, and Roger

was interviewed as part of their investigation. A mandatory

reporter from the school then filed reports with the Department

of Children and Families pursuant to G. L. c. 119, § 51A. In

April 2017, Pires and a State police trooper interviewed Roger.

The defendant taught English and, from 1975 to 1987, ran

the school's theater program. Separate from his employment at

the school, the defendant led bicycle trips to Italy during the

summer months, during which he would travel and stay with the

participating students.

Roger began attending the school in 1978. In 1981, in the

summer before his freshman year, Roger went on one of the

bicycle trips to Italy. During the trip, the group stayed at an

defendant during the 1980s and in 2017, and records regarding
the school's communication with the defendant.
 5

inn. Roger was assigned to sleep in the same double bed as the

defendant. Before turning in for the night, the group went out

for dinner and wine, with most participants, including Roger,

drinking alcohol. During the night, Roger awoke to the

defendant "snuggl[ing]" with him which caused Roger to feel

"embarrassed," "confused," and "panicked." He attempted to roll

away, but the defendant reached and grabbed Roger's penis.

Roger was "terrified" and pretended to be asleep, but the

defendant was "persistent."

The following morning, Roger confided in two other students

who were on the trip and detailed what the defendant had done.

One of the students told Roger that he was not surprised by the

defendant's actions because the defendant had "tried stuff" with

him. The student also told Pires, "We all knew that [the

defendant] was this menace and had previously tried stuff,"

adding that on the bicycle trip the defendant had hugged him

"and wouldn't let go." The same day that Roger confided in him,

the student confronted the defendant, telling him, "Rey, you

fucked up last night," to which the defendant responded, "I did"

and "You're right, I did and I won't do it again."

The bicycle trip ended, and the students returned home.

Roger did not tell his parents what the defendant had done to

him. Roger's mother thought the defendant would be a good

mentor and role model for Roger, so she invited the defendant to
 6

the family home on Cape Cod during the summer of 1981. On

several occasions while there, the defendant attempted to hug

Roger and touch Roger's penis, but Roger told him "no" and

walked away.

The defendant served as Roger's academic advisor during

Roger's freshman year of high school. Roger was struggling

academically, and the defendant began to tutor him. The

tutoring sessions took place at the defendant's on-campus

apartment. During these sessions, the defendant offered Roger

beer and dinner and made advances toward him, but Roger, at

first, would push the defendant away. The advances progressed

to the defendant physically touching Roger, including touching

Roger's penis over his clothing. Roger alleged that "[o]n two

or three occasions [the defendant] gave me a blowjob by putting

his mouth over my penis."

With Roger's permission, the friend in whom Roger had

confided told his own mother what had happened to Roger in

Italy. The friend's mother then told Roger's mother. In the

spring of 1982, Roger's mother and the parents of Roger's friend

informed the school of the abuse. According to the friend, at

some point thereafter the defendant told the friend that he was

dealing with his issues and wanted the friend "to know that it
 7

wasn't gonna happen again."2 The school removed the defendant

from advising and tutoring Roger and told the three parents that

the defendant would no longer participate in the bicycle trips.

The headmaster approached the defendant with allegations

that the defendant had rubbed a different student's back and had

touched Roger's genitals. The headmaster testified that the

defendant "did not deny that. [The defendant] reminded me that

he had not -- he had stopped always when any student asked him

to." The defendant gave the headmaster permission to speak with

the defendant's therapist, and the therapist "assured [the

headmaster] that [the defendant] was seriously working on the

issues that had surfaced on the bike trip and that he felt that

[the defendant] was serious, that progress was being made." In

April 1982, the school reappointed the defendant on probationary

status and temporarily removed him from on-campus housing.

In June 1987, two years after Roger had graduated, the

headmaster was notified that earlier that year, the defendant

had orally raped a freshman boy in the defendant's on-campus

apartment. The headmaster and an attorney for the school

confronted the defendant. The defendant admitted the incident

with this boy, and said that the incident occurred in the

defendant's bed in his on-campus apartment, and that he and the

It is unclear from the grand jury transcript whether this
2

statement was a direct quote from the defendant.
 8

boy performed oral sex on each other, but that only the boy had

ejaculated. The school fired the defendant after this incident.

The defendant left the United States at some point in 1987 and

was living abroad at the time of the 2017 grand jury

presentation.

The grand jury indicted the defendant on three counts of

statutory rape, G. L. c. 265, § 23, and three counts of forcible

rape of a child under sixteen years of age, G. L. c. 265, § 22A,

based on three incidents involving Roger occurring on divers

dates between September 1, 1981, and July 1, 1982, in Norfolk

County. A warrant issued for the defendant's arrest. He was

arrested in Thailand in May 2018 and extradited to the United

States.

In October 2018, the defendant moved in the Superior Court

to dismiss the indictments, pursuant to Commonwealth v.

McCarthy, 385 Mass. 160, 163 (1982). After a hearing, a judge

allowed the defendant's motion to dismiss on the basis that the

Commonwealth did not present the required corroborating evidence

pursuant to G. L. c. 277, § 63. The judge also determined that

the Commonwealth "presented insufficient evidence to establish

probable cause of more than two charges of statutory rape under

G. L. c. 265, § 23."

In January 2019, the Commonwealth filed a motion for

reconsideration of the dismissal and a motion to report
 9

questions of law. The defendant opposed the motions. After a

hearing, the judge invited further briefing. The Commonwealth

filed a revised motion to report questions of law, which the

defendant also opposed. The judge subsequently reported the

following two questions of law to the Appeals Court, pursuant to

Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004):

1. "Does the phrase 'any period' in the last sentence of
the first paragraph of G. L. c. 277, § 63, refer to the
phrase 'more than [twenty-seven] years' in the second
sentence of that paragraph?

2. "Does the provision in the second sentence of G. L.
c. 277, § 63, that any indictment 'found and filed' beyond
[twenty-seven] years from the date of the commission of the
offense alleged be supported by independent evidence
corroborating the victim's allegation require that such
evidence be presented to the grand jury, failing which that
indictment is subject to dismissal prior to trial?"

Discussion. 1. G. L. c. 277, § 63. "We review a question

of statutory interpretation de novo, without deference to the

motion judge's conclusion." Commonwealth v. Perella, 464 Mass.

274, 276 (2013), quoting Commonwealth v. George W. Prescott

Publ. Co., 463 Mass. 258, 264 n.9 (2012). "We focus first on

the language of the statute . . . ." Perella, supra, quoting

Commonwealth v. Millican, 449 Mass. 298, 300 (2007). We "do not

look to extrinsic sources to vary the plain meaning of a clear,

unambiguous statute unless a literal construction would yield an

absurd or unworkable result." Perella, supra quoting Millican,

supra at 300-301. Moreover, we construe criminal statutes
 10

"strictly against the Commonwealth and in favor of the

defendant." Commonwealth v. McLaughlin, 431 Mass. 241, 250

(2000).

a. Tolling provision in G. L. c. 277, § 63. We start by

addressing the first reported question of law, whether the

tolling provision in § 63 applies to the requirement that, where

a complaint is filed more than twenty-seven years after the

alleged crime was committed, corroborating evidence of the

allegation must be presented (corroboration requirement).

The Commonwealth argues that the plain language of the

statute "mandates that the tolling provision in the last

sentence of the first paragraph applies to all of that section,

including the second sentence and the crimes listed in it." The

defendant counters that the "tolling provision applies only to

statutes of limitation, not evidentiary requirements, and is

therefore inapplicable to sex offenses against children, which

have no limitations period." We hold that the tolling provision

in § 63 does not apply to the twenty-seven year evidentiary

requirement.

General Laws c. 277, § 63, provides in relevant part:

"An indictment or complaint for an offense set forth in
[§ 22A or 23] of chapter 265 . . . may be found and filed
at any time after the date of the commission of such
offense; but any indictment or complaint found and filed
more than [twenty-seven] years after the date of commission
of such offense shall be supported by independent evidence
that corroborates the victim's allegation. Such
 11

independent evidence shall be admissible during trial and
shall not consist exclusively of the opinions of mental
health professionals. . . . Any period during which the
defendant is not usually and publicly a resident within the
commonwealth shall be excluded in determining the time
limited.

"Notwithstanding the first paragraph, if a victim of a
crime set forth in [§ 22A or 23] of chapter 265 . . . is
under the age of [sixteen] at the time the crime is
committed, the period of limitation for prosecution shall
not commence until the victim has reached the age of
[sixteen] or the violation is reported to a law enforcement
agency, whichever occurs earlier."

Under the plain language of § 63, the corroboration

requirement is not subject to tolling. See Commonwealth v.

White, 475 Mass. 724, 734 (2016).3 The plain language provides

that child rape offenses "may be found and filed at any time

after the date of the commission of such offense" (emphasis

added), G. L. c. 277, § 63, and we previously stated that the

2006 amendment to the statute, St. 2006, c. 303, § 9, eliminated

3 Although in Commonwealth v. White, 475 Mass. 724 (2016),
we did not directly address the issue presented here -- whether
tolling applies to the corroboration requirement -- we
implicitly concluded that tolling did not apply to the
corroboration requirement. Id. at 730-731, 734. In White, we
analyzed the tolling of the statute of limitations under a
previous version of G. L. c. 277, § 63, and the corroboration
requirement under the current statute. Id. We determined that
the defendant's absence from the Commonwealth had tolled some
period of the statute of limitations, id. at 730-732, but that
the "allegations with respect to any incidents taking place
. . . more than twenty-seven years prior to indictment . . .
required corroboration by independent evidence." Id. at 734.
 12

the statute of limitations for child rape.4 See Commonwealth v.

White, 475 Mass. 724, 730 n.11 (2016) (St. 2006, c. 303, § 9,

"lifted entirely" the "limitations period"); Commonwealth v.

Stevenson, 474 Mass. 372, 379 (2016) (same). However, for any

charges filed beyond twenty-seven years after the crime was

committed, corroborating evidence must be presented. G. L.

c. 277, § 63. And the tolling provision concludes the first

paragraph of § 63 and provides that "[a]ny period during which

the defendant is not usually and publicly a resident within the

commonwealth shall be excluded in determining the time limited"

(emphasis added).5 G. L. c. 277, § 63. We conclude that the

provision that sets forth a limitations period is separate from

the corroboration requirement, which is an evidentiary

4 Other offenses enumerated in § 63 have specific statutes
of limitations attached. G. L. c. 277, § 63.

5 A review of the previous versions of the statute support
our interpretation that the phrase "time limited" applies to the
statute of limitations. The versions of the statute from its
original iteration in 1836 until the version amended in 2006 set
forth applicable statutes of limitations and a tolling
provision, but not a corroboration requirement. See R.S. 1836,
c. 136, § 16 ("but any period, during which the party charged
was not usually and publicly resident within this state, shall
not be reckoned as part of the [six year statute of
limitation]"); R.L. 1902, c. 218, § 52. The phrase "time
limited" first appeared in the 1902 version, R.L. 1902, c. 218,
§ 52. It was not until the 2006 amendment that the Legislature
added the corroboration requirement to the statute. St. 2006,
c. 303, § 9. Thus, the statute's history supports our
conclusion that the phrase "time limited" refers only to the
statute of limitations.
 13

requirement. See Black's Law Dictionary 674, 1636 (10th ed.

2014) (defining "statute of limitations" as "[a] statute

establishing a time limit for prosecuting a crime, based on the

date when the offense occurred" and "corroborating evidence" as

"[e]vidence that differs from but strengthens or confirms what

other evidence shows"). When it added the corroboration

requirement, the Legislature did not add language to the tolling

provision that would extend the reach of the phrase "time

limited" to include the evidentiary requirement. Not only does

the statute not contain language that would make the phrase

"time limited" apply to the corroboration requirement, but the

Legislature also separated these two distinct concepts from each

other by a semicolon, demonstrating a legislative intent to

separate the two concepts. See Commissioner of Correction v.

Superior Court Dep't of the Trial Court for the County of

Worcester, 446 Mass. 123, 126 (2006) (examining sentence

structure to aid statutory interpretation).

Moreover, the legislative purpose of G. L. c. 277, § 63,

supports our conclusion that the corroboration requirement is

not subject to tolling. As we detailed in White, 475 Mass. at

736-737, the corroboration requirement was added to the statute

to preserve fundamental safeguards of a fair trial that could be

threatened after the elimination of the statute of limitations.

The Legislature sought "to give child victims of sexual abuse
 14

the time they need to heal, come forward and still have their

day in court" (citation omitted), but there was concern that

"memories of childhood abuse, when recalled decades later, may

not be sufficiently precise to serve as the sole basis for a

criminal conviction," White, supra at 736-737, and authorities

cited. Thus, the Legislature added the corroboration

requirement for allegations outside the twenty-seven year

threshold. See id. Tolling the evidentiary corroboration

requirement would not further the Legislature's goal of

preserving the fundamental safeguards of a fair trial. See id.

at 737, quoting State House News Service (July 26, 2006)

(statement of Rep. Fagan). Extending tolling to the evidentiary

requirement would undermine the explicit requirement and purpose

of corroboration.

Therefore, we conclude that under the plain language of

G. L. c. 277, § 63, and viewing the statute as a whole and in

light of its legislative history and purpose, the corroboration

requirement is not subject to tolling.

b. Corroborating evidence at the grand jury stage. We

next address the second reported question, whether the

corroborating evidence required in § 63, has to be presented at

the grand jury stage.

The Commonwealth argues that "[w]hether the defendant's

admissions corroborate the child rape victim's allegation is a
 15

credibility question for a trial jury." The defendant argues

that the "plain statutory language compels an affirmative

answer" to the reported question. We agree with the defendant.

General Laws c. 277, § 63, provides that "any indictment or

complaint found and filed more than [twenty-seven] years after

the date of commission of such offense shall be supported by

independent evidence that corroborates the victim's allegation.

Such independent evidence shall be admissible during trial"

(emphasis added). G. L. c. 277, § 63. A plain reading of this

statutory language is that the corroboration requirement applies

to "any indictment . . . found and filed more than [twenty-

seven] years after the date of commission of such offense"

(twenty-seven year threshold). G. L. c. 277, § 63. See

Commonwealth v. LeBlanc, 475 Mass. 820, 821 (2016) ("Clear and

unambiguous language is conclusive as to legislative intent");

Hashimi v. Kalil, 388 Mass. 607, 609 (1983) ("The word 'shall'

is ordinarily interpreted as having a mandatory or imperative

obligation").

Although we have not previously addressed the application

of § 63 at the grand jury stage, our conclusion finds support in

the Stevenson case. In Stevenson, 474 Mass. at 378, we touched

on the Legislature's effort to remedy a potential issue that

after the passage of time, "[a]ccurately relaying the

complainant's memory of . . . details [of the complainant's
 16

story] to the grand jury through hearsay testimony can be less

than perfect." We stated,

"The fact that sexual assault cases under these statutes
are now capable of being prosecuted decades after the
commission of the crimes may exacerbate concerns regarding
the reliability of hearsay evidence presented in a
nonadversary setting such as the grand jury. But the
Legislature contemplated the inevitability of such cases
being brought under G. L. c. 277, § 63, and provided for
additional protections when such charges are sought.
Specifically, the statute explicitly provides that
'indictments . . . filed more than [twenty-seven] years
after the date of commission of such offense shall be
supported by independent evidence that corroborates the
victim's allegation' . . . . Such corroboration was not
required here" (citation omitted).

Stevenson, supra at 379. Because the alleged crimes in

Stevenson occurred below the twenty-seven year threshold, id. at

372-374, the implication of our statement that corroboration was

not required in that case is that corroboration is required at

the indictment stage where the alleged crimes occurred beyond

the twenty-seven year threshold.

In addition, the Legislature's explicit limitation of

corroboration requirements to the trial stage in other statutes

bolsters our interpretation that § 63 requires the Commonwealth

to present evidence corroborating a victim's allegation at the

grand jury stage. See G. L. c. 272, § 11 ("A person shall not

be convicted [under G. L. c. 272, §§ 2, 4, and 6,] upon the

evidence of one witness only, unless his testimony is

corroborated in a material particular" [emphasis added]); G. L.
 17

c. 233, § 20I ("No defendant in any criminal proceeding shall be

convicted solely on the testimony of, or the evidence produced

by, a person granted immunity" under G. L. c. 233, § 20E). The

lack of similar specific language limiting the corroboration

requirement of § 63 to the trial stage indicates that the

Legislature did not intend to limit this requirement.

Furthermore, the Commonwealth's arguments focusing on the

practical issues that may arise from requiring it to present

corroborating evidence to the grand jury do not compel a

different result. The 2006 amendment to G. L. c. 277, § 63,

entailed compromising on a challenging issue with competing

interests at play. By eliminating the statute of limitations

for child rape, the Legislature extended the rights of victims,

and by providing a threshold past which corroborating evidence

must accompany an allegation at the grand jury stage, the

Legislature provided protections "against unfounded criminal

prosecutions." McCarthy, 385 Mass. at 163, quoting Lataille v.

District Court of E. Hampden, 366 Mass. 525, 532 (1974). See

White, 475 Mass. at 737, quoting St. 2006, c. 303, § 9. By

requiring corroborating evidence to be presented at the grand

jury stage, the Legislature created an exception to the common-

law rule that we generally "will not inquire into the competency

or sufficiency of the evidence before the grand jury."

Commonwealth v. Rex, 469 Mass. 36, 39 (2014), quoting
 18

Commonwealth v. Robinson, 373 Mass. 591, 592 (1977). See Rex,

supra at 40. Even assuming, arguendo, that the Commonwealth's

argument that requiring corroboration at the grand jury stage

would present practical issues, any such issues do not allow us

to rewrite the Legislature's work. See LeBlanc, 475 Mass. at

824, quoting Commissioner of Revenue v. Cargill, Inc., 429 Mass.

79, 82 (1999) ("[I]t is the function of the judiciary to apply

[the statutory language], not amend it").

For the foregoing reasons, we answer "yes" to the second

reported question and conclude that the corroboration

requirement of G. L. c. 277, § 63, requires the Commonwealth to

present corroborating evidence to the grand jury.

2. Sufficiency of the corroborating evidence. We next

address whether the Commonwealth presented sufficient

corroborating evidence to the grand jury. The Commonwealth

contends that the grand jury had probable cause to corroborate

the alleged victim's allegation. As support, the Commonwealth

points to the defendant's admission to touching students; his

saying "it" would not happen again, "which the grand jury could

infer meant sexually assaulting this victim"; and the

defendant's confession, five years after the incidents at issue

allegedly occurred, to raping another freshman student in

"virtually identical circumstances." The defendant relies, in

part, on White, 475 Mass. 724, to argue that we should affirm
 19

the trial court's dismissal of the indictments because the

Commonwealth did not present adequate corroborating evidence.

The defendant contends that under White, the Commonwealth did

not meet the "high bar" of corroboration as it failed to

corroborate a "specific testimonial fact" regarding an element

of the charged offenses. Id. at 739-740. We conclude that the

Commonwealth presented adequate corroborating evidence to meet

the grand jury's probable cause to indict standard.

"A grand jury may indict when presented with sufficient

evidence of 'each of the . . . elements' of the charged

offense." Commonwealth v. Stirlacci, 483 Mass. 775, 780 (2020),

quoting Commonwealth v. Moran, 453 Mass. 880, 884 (2009).

"Probable cause is a 'considerably less exacting' standard than

that required to support a conviction at trial." Stirlacci,

supra, quoting Commonwealth v. O'Dell, 392 Mass. 445, 451

(1984). "It requires 'sufficient facts to warrant a person of

reasonable caution in believing that an offense has been

committed,' not proof beyond a reasonable doubt." Stirlacci,

supra, quoting Commonwealth v. Levesque, 436 Mass. 443, 447

(2002). When reviewing the dismissal of an indictment, we

review the evidence before the grand jury in the light most

favorable to the Commonwealth and do not defer to the motion

judge's factual findings or legal conclusions. Stirlacci, supra

at 780-781.
 20

The incidents alleged to have occurred in the present case

took place on divers dates between September 1, 1981, and July

1, 1982, thirty-five years before the return of the true bills

of indictment.6 Therefore, in accordance with our answers to the

two reported questions addressed supra, the Commonwealth was

required to present evidence to the grand jury that corroborated

the alleged victim's allegations. See G. L. c. 277, § 63. To

address whether the Commonwealth presented sufficient

corroborating evidence, we look first to the relevant language

in G. L. c. 277, § 63:

"[A]ny indictment or complaint found and filed more than
[twenty-seven] years after the date of commission of such
offense shall be supported by independent evidence that
corroborates the victim's allegation. Such independent
evidence shall be admissible during trial and shall not
consist exclusively of the opinions of mental health
professionals."

6 Referring to the fact that although they heard evidence of
sexual abuse taking place on Cape Cod and in Italy, the
indictments were sought only for the conduct that took place at
the school in Norfolk County, the prosecutor gave the grand
jurors a limiting instruction: "You have heard reference to
other acts allegedly committed by [the defendant], which did not
occur within the jurisdiction of Milton or Norfolk County. No
indictments are being sought for those acts. You are not to
take any of those references as substitute for proof that . . .
there's probable cause that [the defendant] committed crimes
within Milton . . . . You may only consider the evidence
pertaining to those other acts as it relates to [the
defendant's] possible motive, state of mind, patter[n] of
conduct, the absence of accident, or innocent intent, and as it
relates to the state of mind of [Roger] and other witnesses."
 21

The plain language of this provision provides that the

corroborating evidence (1) must be something other than the

alleged victim's allegation; (2) cannot "consist exclusively of

the opinions of mental health professionals"; and (3) "it must

be of a sort 'admissible during trial.'" See G. L. c. 277,

§ 6336. In the White case, we interpreted the corroboration

requirement for the first time in the context of whether the

victim's trial testimony "was supported by 'independent evidence

that corroborates [her] allegation.'" White, 475 Mass. at 735,

quoting G. L. c. 277, § 63. We stated that to meet the

corroboration requirement, "the Commonwealth must present

corroborating evidence that relates to the specific criminal act

at issue" and that "evidence of uncharged misconduct . . . does

not itself suffice." White, 475 Mass. at 736.

In White, the defendant was convicted of one count of rape

of a child, G. L. c. 265, § 23, based on an indictment that

alleged he had raped his daughter on "diverse dates" both below

and beyond the twenty-seven year threshold set forth in § 63.

Id. at 725. We vacated the defendant's conviction where the

corroborating testimony before the jury came from the victim's

brother. He stated that he once walked past the victim's room

and "saw [the defendant] on top of [the victim], his head in her

lap, her on the bed" with the victim "laying back" with "her

pants . . . down." Id. at 726-727. We concluded that the
 22

brother's account "presented evidence only of uncharged

misconduct" and "did not provide 'some specific testimonial

fact,' . . . related to the particular incidents" of alleged

rape, and as such did not itself suffice to meet the

corroboration requirement in § 63. Id. at 740, quoting

Commonwealth v. Helfant, 398 Mass. 214, 219 (1986). See White,

supra at 739-740, quoting Helfant, supra (standard in Helfant

that "corroborating evidence must relate to the specific

criminal act at issue and, in particular, that it must consist

of 'some specific testimonial fact, which, in the context of the

case, is probative on an element of the crime' . . . especially

appropriate for defining the corroboration requirement in the

statute at issue").7

Although our interpretation of the corroboration

requirement set a "high bar," this bar "is not insuperable,"

White, supra at 740, and in the present case we conclude that

the Commonwealth's evidence met this standard. Whereas in White

we addressed the corroborative value of the testimony of the

victim's brother regarding uncharged conduct, White, supra at

7 The statute at issue in Commonwealth v. Helfant, 398 Mass.
214 (1986), G. L. c. 272, § 11, contained the requirement that
the testimony of a witness must be "corroborated in a material
particular." See G. L. c. 272, § 11; Helfant, supra at 218-219
& n.3. Although § 63 contains the requirements detailed supra,
it does not contain the "material particular," or similar,
language. See G. L. c. 277, § 63.
 23

736, here we are presented with an alleged admission by the

defendant that "it wasn't gonna happen again." The Commonwealth

argues that "it" in this statement related to the charged

conduct. The defendant argues that to the extent anything can

be inferred from this statement, the statement related to the

events in Italy and not the charged crimes.

The defendant made the alleged admission that "it wasn't

gonna happen again," at some point in the spring of 1982. When

considering the corroborating evidence in the context of Roger's

statements, the grand jury could have inferred that the alleged

oral rapes had occurred by the spring of 1982. Roger told the

investigator that during the 1981 to 1982 school year, the

defendant had invited him to the defendant's apartment four to

six times under the premise of helping Roger study. It was

during these visits that the alleged crimes at issue occurred.

Roger further told the investigator that he believed these

incidents occurred over several months but did not believe it

lasted the whole year. Viewing this evidence in the light most

favorable to the Commonwealth, we conclude that it was

reasonable for the grand jury to infer that the "it" in the

defendant's statement referred to the alleged oral rapes for

which the defendant was charged, therefore providing the
 24

required corroborating evidence.8 See Stirlacci, 483 Mass. at

780. See also Commonwealth v. Lewis, 465 Mass. 119, 127 (2013)

(meaning of defendant's ambiguous statement was question of fact

for jury). Therefore, we conclude that the Commonwealth

presented sufficient corroborating evidence to the grand jury to

establish probable cause.

3. Number of incidents. We turn next to whether the

Commonwealth's evidence established probable cause for two or

three separate incidents of rape. The Commonwealth argues that

in the light most favorable to it, the "grand jury testimony

that the defendant raped the victim 'two or three' times showed

probable cause for crimes committed on three occasions." The

defendant counters that, if we reach this issue, the "alleged

victim's statement, presented to the grand jury through a police

officer, that he received oral sex from [the defendant] on 'two

or three occasions' presents reasonably trustworthy information

to indict for two instances, not three." We hold that the

We focus our analysis on the defendant's alleged admission
8

that "it wasn't gonna happen again," but note that we are not
holding that the other evidence of the defendant's alleged
misconduct with the victim or other students would not be
admissible at trial. See White, 475 Mass. at 739 n.24, citing
Commonwealth v. King, 387 Mass. 464, 470 (1982) (we previously
held that "Commonwealth was permitted to present evidence of
uncharged sexual misconduct; we did not say that such evidence
would suffice where corroboration is required").
 25

Commonwealth's evidence established probable cause for two

separate incidents.

Although, in general, a "court will not inquire into the

competency or sufficiency of the evidence before the grand jury"

(citation omitted), Rex, 469 Mass. at 39, "[a]t the very least,

the grand jury must hear enough evidence to establish the

identity of the accused and to support a finding of probable

cause to arrest the accused for the offense charged" (footnote

omitted), id. at 40. "A grand jury finding of probable cause is

necessary if indictments are to fulfil their traditional

function as an effective protection 'against unfounded criminal

prosecutions.'" Id., quoting McCarthy, 385 Mass. at 163.

The grand jury had before it two sources that provided

context for the number of incidents. It heard that Roger told

Pires that "[o]n two or three occasions [the defendant] gave me

a blowjob by putting his mouth over my penis." The grand jury

also had before it an excerpt from the report of the school's

consultant that documented the consultant's 2016 interview with

Roger. This report states that Roger said, "There were several

times when I allowed [the defendant] to . . . touch me. I

allowed him to take off my pants . . . to pull down my underwear

and perform oral sex on me." Those two statements were the only

evidence before the grand jury regarding the specific number of
 26

crimes alleged to have occurred in Norfolk County.9 Without

presenting more information to the grand jury as to the number

of alleged incidents, the grand jury would have been forced to

speculate regarding the third incident. See Rex, 469 Mass. at

39-40. Therefore, although the Commonwealth presented

sufficient evidence to indict the defendant for two incidents,

it failed to present "sufficient facts to warrant a person of

reasonable caution in believing that an offense has been

committed" for the third occasion. Levesque, 436 Mass. at 447.

Conclusion. We answer the reported questions as follows:

1. The tolling provision in the first paragraph of G. L.

c. 277, § 63, does not apply to the requirement to provide

corroborating evidence for criminal charges brought beyond the

twenty-seven year time limitation in the second sentence of that

paragraph.

2. The corroboration requirement of G. L. c. 277, § 63,

for criminal charges brought beyond the twenty-seven year time

limitation requires the Commonwealth to present corroboration

evidence to the grand jury.

9 Although the grand jury heard that the alleged victim
referred to frequent encounters where the defendant would touch
the alleged victim's genitals, these encounters could not
provide probable cause for the crimes for which the defendant
was indicted. See Commonwealth v. Hackett, 383 Mass. 888, 888
(1981); Commonwealth v. Gallant, 373 Mass. 577, 584-585 (1977).
 27

We further conclude that the Commonwealth presented

sufficient corroborating evidence to the grand jury for two

incidents. Accordingly, we reverse the allowance of the motion

to dismiss indictments nos. 1782CR00399-001, -002, -004, and -

005 but affirm the dismissal of indictments nos. 1782CR00399-003

and -006 for the third incident.

So ordered.