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SJC weighs whether conviction can stand after indictment cited different statutory subsection than evidence supported
Summary
At oral argument in Commonwealth v. McCaffrey, counsel debated whether a conviction under one subsection of the aggravated sexual-offense statute can stand when the grand jury indicted under a different subsection and the grand-jury record contained evidence of a younger victim age than the indictment alleged.
BOSTON — The Massachusetts Supreme Judicial Court on oral argument considered whether Scott McCaffrey’s conviction must be vacated because the indictment cited a different subsection of the aggravated sexual-offense statute than the theory on which a jury convicted. Defense counsel told the justices the grand jury was presented evidence that the victim was under 12, but the indictment charged the aggravating subsection that applies only when the victim was over 12 and under 16.
Defense attorney Emma Quinn told the court, “This case is about two fundamental principles of fairness, the right to indictment by a grand jury, and the requirement that a jury get proper instructions.” Quinn argued that the indictment was for subsection (b) while the conviction was entered under subsection (a), which she said is an impermissible change of substance because it altered the statutory subsection or the theory of the offense.
The issue…
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