District Court Instruction 2.540: Subsequent Offense

Source: Criminal Model Jury Instructions for Use in the District Court
Revised: May 2011
Statute: G.L. c. 278, § 11A

Application to firearms: This general instruction governs the bifurcated proceeding for any subsequent offense enhancement, including second and subsequent firearms offenses under G.L. c. 269, § 10.

Bifurcated Proceeding (G.L. c. 278, § 11A)

The subsequent offense allegation is tried separately from the underlying offense:

• At arraignment, defendant is asked only for plea to the underlying crime; the subsequent offense portion is not read in open court.
• If tried before a jury, no part of the subsequent offense allegation is shown or referred to during trial of the underlying offense.
• After guilty verdict or finding on the underlying offense, defendant is asked for a plea on the subsequent offense portion.
• If not guilty plea, defendant is entitled to jury trial on the subsequent offense issue.
• Court may retain the same jury or impanel a new one. Means, 71 Mass. App. Ct. 788, 797-798 (2008).

Elements: Subsequent Offense

The Commonwealth must prove beyond a reasonable doubt:

• Prior to the date of the underlying offense, the same defendant had previously been convicted of the same or a like offense.
• The person in the courtroom is the same person as the person previously convicted (identity).

"Conviction" defined: Entry of a guilty verdict by a jury or a guilty finding by a judge.

Identity

Identity cannot be proved simply by showing the defendant has the same name as a person previously convicted. The Commonwealth must prove common identity beyond a reasonable doubt. Koney, 421 Mass. 295, 301-302 (1995); Maloney, 447 Mass. 577, 582 (2006).

Supplemental Instructions

1. CWOF and Program Assignment (OUI cases) Prior conviction may be shown by proving defendant was previously assigned to an alcohol or controlled substance education/treatment program because of a like offense. G.L. c. 90, § 24D; Murphy, 389 Mass. 316 (1983).

2. Like Offense in Another State Judge instructs as a matter of law whether out-of-state offense is a "like offense."

3. Same Jury Instructions If the same jury that convicted on the underlying offense also tries the subsequent offense, the judge instructs that: evidence from the first trial may not be considered; presumption of innocence applies; burden remains on Commonwealth.

Notes

Allegation required in complaint (Note 2): Defendant may not be subjected to enhanced punishment unless prior offenses are alleged in the complaint and proved beyond a reasonable doubt. Fortier, 258 Mass. 98, 100 (1927); McDonald v. Commonwealth, 173 Mass. 322, 326-327 (1899). A statute providing otherwise would violate Art. 12 of the Massachusetts Declaration of Rights. Harrington, 130 Mass. 35, 36 (1880).

Sentencing must await resolution (Note 3): Judge may not impose sentence on the underlying offense until the subsequent offense trial is complete. Jarvis, 68 Mass. App. Ct. 538 (2007). If charged in a separate count, one sentence on both counts. Lopez, 55 Mass. App. Ct. 741, 742 n.1 (2002).

Judge's option to impanel different jury (Note 4): Defendant not entitled to new jury merely based on speculation of bias. Means, 71 Mass. App. Ct. 788, 797 (2008).

Guilty plea colloquy (Note 5): Must be knowing and voluntary; cannot stipulate through counsel. Orben, 53 Mass. App. Ct. 700, 706-707 (2002); Pelletier, 449 Mass. 392, 397-398 (2007). If defendant waives jury trial after jury convicted on underlying offense, written waiver and colloquy required. Dussault, 71 Mass. App. Ct. 542 (2008).

Prior conviction must precede subsequent offense (Note 6): Prior conviction must have preceded the subsequent offense (not merely the subsequent conviction). Hernandez, 60 Mass. App. Ct. 416 (2004); Bynum v. Commonwealth, 429 Mass. 705 (1999).

"Like offense" (Note 7): Determined by elements, not penalty. Corbett, 422 Mass. 391, 396-397 (1996); Becker, 71 Mass. App. Ct. 81 (2008). Prior delinquency charge qualifies. Valiton, 432 Mass. 647, 655-656 (2000).

Representation by counsel (Note 10): Defendant presumed to have been represented by or waived counsel. Commonwealth need not prove this unless defendant first shows conviction was obtained without counsel. McMullin, 76 Mass. App. Ct. 904, 905 (2010); Savageau, 42 Mass. App. Ct. 518, 520-522 (1997).

Commonwealth's right to proceed (Note 11): Judge may not prevent Commonwealth from proceeding on subsequent offense. Pelletier, 449 Mass. 392 (2007).

Proof of prior conviction (Note 14): Judgment of conviction for a third offense may establish culpability for first two offenses. Bowden, 447 Mass. 593, 599 (2006).

Methods of Proving Prior Offense

Under G.L. c. 90, § 24(1)(c)(4) (and applicable generally):
- Certified attested copies of original court papers
- Certified attested copies of biographical/informational data from records of: department of probation, any jail or house of corrections, department of correction, or the registry
- Such documentation is self-authenticating and admissible as prima facie evidence
- No additional corroborating evidence or live witness testimony required to establish validity of prior convictions

See also G.L. c. 233, § 76 (copies of government records); Mass. R. Crim. P. 40(a)(1) (official records).

"Attested copy" defined: One examined and compared with the original, with a certificate of correctness signed by the examiner. Photocopy of original attestation is insufficient. Deramo, 436 Mass. 40, 47 (2002).