Commonwealth v. Johnson
461 Mass. 1
Mass.2011Background
- Defendant sought leave to appeal under G. L. c. 278, § 33E after denial of a second motion for a new trial.
- Single justice reserved and reported whether Acevedo error in jury instructions on provocation burden is a “new and substantial” question and whether it risks miscarriage of justice.
- Direct appeal had already addressed the provocation issue; Acevedo clarified a principle about malice and provocation.
- Court noted Acevedo did not create a new rule but applied an established principle, with precedents decided before and during the direct appeal.
- Issue presented on collateral review was mischaracterized on direct appeal due to erroneous factual framing, prompting reconsideration on merits.
- The court remanded to the county court to address the Acevedo error on the merits, concluding no substantial risk of miscarriage of justice given the evidence and verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Acevedo error is “new and substantial” under §33E | Defendant argues the Acevedo issue is new and substantial | Defense contends the issue was not adequately considered due to prior framing | Not new and not substantial |
| Whether Acevedo error created substantial risk of miscarriage of justice | Defense asserts error could have impacted verdict | Prosecution argues no substantial risk given verdict of first-degree murder | No substantial risk of miscarriage of justice |
| Whether misstatement of facts on direct appeal makes the Acevedo issue new and substantial | Defense claims misstatement prevented fair consideration | State contends issue was adequately considered | Issue deemed new and substantial; merits review warranted |
Key Cases Cited
- Commonwealth v. Acevedo, 427 Mass. 714 (Mass. 1998) (instruction on provocation; malice and provocation mutually exclusive)
- Commonwealth v. Randolph, 438 Mass. 290 (Mass. 2002) (substantial risk review after direct appeal in capital case)
- Commonwealth v. Gunter, 459 Mass. 480 (Mass. 2011) (definition of ‘new and substantial’; thorough §33E review)
- Commonwealth v. Smith, 460 Mass. 318 (Mass. 2011) (gatekeeper access; meaningful matters; reassertion of standard)
- Commonwealth v. Johnson, 426 Mass. 617 (Mass. 1998) (Acevedo-based analysis before direct appeal; stated opinion on charge)
- Commonwealth v. Torres, 420 Mass. 479 (Mass. 1995) (instruction deemed incorrect; pre-Acevedo context)
- Commonwealth v. Ambers, 397 Mass. 705 (Mass. 1986) (newness and previous consideration standard)
- Commonwealth v. Mains, 433 Mass. 30 (Mass. 2000) (pre-Acevedo context for newness analysis)
- Dickerson v. Attorney Gen., 396 Mass. 740 (Mass. 1986) (court described thorough review under §33E)