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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
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
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.