Opinion
No. 15–P–1578.
10-07-2016
COMMONWEALTH v. Reginald BUTLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this his third appeal to this court, the defendant, Reginald Butler, argues for the third time that the evidence was insufficient to support his conviction of aggravated rape. See G.L. c. 265, § 22(a ). This question was presented and decided on direct appeal, where a panel of this court determined in a memorandum and order pursuant to our rule 1:28 that the evidence supporting the aggravating factor of serious bodily injury was sufficient. See Commonwealth v. Butler, 61 Mass.App.Ct. 1110 (2004), citing Commonwealth v. Pontes, 402 Mass. 311, 319 n. 7 (1988), Commonwealth v. Sumner, 18 Mass.App.Ct. 349, 352 (1984), and Commonwealth v. Coleman, 30 Mass.App.Ct. 229, 232234 (1991). In another memorandum and order pursuant to our rule 1:28 we also reiterated this conclusion in rejecting the defendant's appeal from the denial of his first motion for new trial, and also rejected his statutory vagueness argument. See Commonwealth v. Butler, 68 Mass.App.Ct. 1112 (2007). The defendant now appeals from the trial judge's order denying his second motion to reduce the verdict and for resentencing. He contends that the legal landscape has been changed by Commonwealth v. Scott, 464 Mass. 355 (2013), that the issue of sufficiency should be revisited, and that his conviction should be reduced to the lesser included offense of rape.
Our decision also affirmed the trial judge's denial of the defendant's separate motion to reduce the verdict under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979).
The defendant also sought Federal habeas corpus relief, which was denied. See Butler v. O'Brien, 663 F.3d 514, 521 (1st Cir.2011), cert. denied, 132 S.Ct. 2748 (2012). In affirming the denial of the habeas corpus petition, the United States Court of Appeals for the First Circuit held that “[a] person of average intelligence would be on fair notice from the statutory language and common experience that [the statute] encompasses the injuries suffered by the victim in this case. The victim sought and received medical treatment for a linear abrasion to the neck, tenderness in the ribs where she had been punched several times, and vaginal tearing.” Ibid.
The motion also states that it is the defendant's second motion for new trial, and cites both Mass.R.Crim.P. 30(a) & (b), as appearing in 435 Mass. 1501 (2001).
Where an issue of fact or law has been fully litigated, a defendant is directly estopped from litigating it again. See Commonwealth v. Ellis, 475 Mass. 459, 475 (2016), citing Commonwealth v. Rodriguez, 443 Mass. 707, 710–711 (2005). Here, factual and legal sufficiency were previously litigated on direct appeal. The defendant urges us to recognize an exception, however, for claims based on a change in the law, stating that Scott constitutes such a change. See Ellis, supra at 475, quoting from Rodriguez, supra at 710 (“[T]he Commonwealth must show that the issues raised in the defendant's [current] motion were actually litigated and determined on the defendant's original motion”).
In Scott, the Supreme Judicial Court considered the evidence necessary to prove serious bodily injury under G.L. c. 265, § 13A(c ). 464 Mass. at 356–357 & n. 1. Unlike G.L. c. 265, § 22(a ), which contains no definition of the term “serious bodily injury,” G.L. c. 265, § 13A(c ), contains a precise definition of the term, but only “[for] purposes of this section.” The language of the statute limiting this definition to cases arising under § 13A is clear, unequivocal, and unambiguous. “Where [statutory] language is clear and unambiguous, it is conclusive as to the intent of the Legislature.” Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct., 446 Mass. 123, 124 (2006). The defendant's contention that the definition of serious bodily injury contained in G.L. c. 265, § 13A(c ), should be imported to G.L. c. 265, § 22(a ), runs contrary to the plain meaning of the statute and the clear expression of legislative intent which we are not at liberty to vary:
“ ‘[W]here the legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.’ Commonwealth v. Gagnon, 439 Mass. 826, 833 (2003), quoting 2A N.J. Singer, Sutherland Statutory Construction § 46.06, at 194 (6th ed. rev.2000). We do not read into the statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had an option to, but chose not to include. General Elec. Co. v. Department of Envtl. Prot., 429 Mass. 798, 803 (1999).”
Commissioner of Correction, supra at 126.
The defendant is directly estopped from relitigating his contention that the evidence was insufficient to prove aggravated rape. See Rodriguez, supra at 710–711. Even if we were to consider his argument on its merits, Scott is inapplicable here.
We also reject the defendant's alternative contention that the trial judge erred in failing to conclude that the jury's finding of serious bodily injury was against the weight of the evidence.