Commonwealth v. Gunter
459 Mass. 480
| Mass. | 2011Background
- Defendant Gunter was convicted of first-degree murder (felony-murder), armed assault in a dwelling with intent to commit a felony, and illegal firearm possession; the armed assault conviction was vacated as duplicative of the felony-murder theory.
- This court previously held the armed assault on Berry was not sufficiently independent to support felony-murder, but affirmed weapon and murder convictions based on other assaults (Madden, Gilbert, MacKenzie).
- After direct appeal, defendant sought habeas relief in federal court; the First Circuit found procedural default and lack of exhaustion on ineffective-assistance claims.
- A postconviction motion for new trial was denied; defendant sought leave to appeal under G. L. c. 278, § 33E, and the matter was reserved and reported to the full court.
- The issue is whether the new and substantial standard of § 33E permits review of a theory that Selby’s Berry shooting was wholly separate from the joint-venture armed assault, and whether the claim is new and substantial or merely a revisit of issues already decided on plenary review.
- The court remands for denial of leave to appeal; no new substantial issue was found.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the new theory is 'new and substantial' under §33E | Gunter argues new theory merits review | Gunter contends theory was not raised earlier | Not new and substantial; remand for denial of appeal |
| Whether bystander/merger issues were properly decided on direct appeal | Commonwealth asserts merger decision upheld | Gunter argues issues ignored in direct appeal | Matters reviewed; merger upheld; no miscarriage of justice found |
| Whether ineffective-assistance claims qualify as 'new and substantial' | Gunter claims counsel was ineffective for not raising merger/by-stander theories | Counsel failures not new grounds for §33E review | Not new; §33E review not opened to revisit already decided issues |
Key Cases Cited
- Commonwealth v. Ambers, 397 Mass. 705 (1986) (gatekeeper and 'new and substantial' standard for §33E)
- Commonwealth v. Pisa, 384 Mass. 362 (1981) (timeliness of raising issues; 'new' requirement)
- Commonwealth v. Gricus, 317 Mass. 403 (1944) (plea to raise issues at trial or direct appeal)
- Dickerson v. Attorney Gen., 396 Mass. 740 (1986) (direct appeal review of murder convictions; gatekeeper concept)
- Commonwealth v. Ortiz, 408 Mass. 463 (1990) (felony-murder linkage requires continuous transaction)
- Gunter v. Maloney, 291 F.3d 74 (2002) (First Circuit on procedural default and exhaustion)