In November, 1967, the defendant was convicted of murder in the first degree for the killing of Marialice Pike in March, 1967. In 1969, we affirmed the judgment and the denial of his motion for a new trial. Commonwealth v. Francis,
The defendant now appeals from that conviction, arguing that (1) the judge improperly denied his motion to waive a jury trial; (2) the judge erroneously required that the defendant’s medical records be admitted in evidence in their entirety; and (3) the prosecutor made improper statements during closing argument. He also requests that this court grant him a new trial, or that we reduce his conviction pursuant to our authority under G. L. c. 278, § 33E. We affirm and decline to exercise our extraordinary power under § 33E.
Facts. The facts of this case are summarized in Commonwealth v. Francis,
Discussion. 1. Jury waiver. Before the start of his second trial, the defendant moved to waive a jury trial. The judge denied the motion on the basis of G. L. c. 263, § 6, which precludes defendants from waiving a jury trial in capital cases. The defendant now claims that the denial of his motion violated his equal protection and due process rights and that he should have been permitted to waive a jury trial.
Both the Federal and State Constitutions guarantee criminal defendants the right to be tried by a jury.
“In light of the Constitution’s emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury — the very thing that the Constitution guarantees him.”
Singer v. United States, supra at 36. We have similarly held that trial by jury, “that ancient and valued mode of trial[,] cannot be said to lie outside the scope of due process of law.” Commonwealth v. Millen, supra at 466.
Nor does the statute violate the equal protection provision. “Absent a showing that a statute burdens a suspect group or fundamental interest, it will be upheld as long as it is rationally related to the furtherance of a legitimate State interest .... The statute is presumed to be constitutional, . . . and will not be invalidated where any state of facts reasonably may be conceived to justify it.” (Citations omitted.) Dickerson v. Attorney Gen.,
It is reasonable for the Legislature to treat defendants facing a charge of murder in the first degree differently from other defendants. Although the death penalty is no longer available, a conviction of murder in the first degree still carries a uniquely severe penalty, a sentence of life imprisonment without the possibility of parole. See G. L. c. 265, § 2. The State may not kill the defendant literally; nevertheless, his life is at stake in a case
The defendant also argues that a case cannot be considered a “capital” one for jury waiver purposes until after trial. His contention is that, although charged with murder in the first degree, he could be convicted of a lesser, noncapital offense. In other words, his claim is that one can only ascertain that a case is a capital one after the verdict. Our rules define “capital crime” as “a charge of murder in the first degree.” Mass. R. Crim. P. 2 (b) (3),
The defendant’s argument that he should be permitted to waive a jury trial in a capital case was considered and rejected by this court in Commonwealth v. O’Brien, supra. There, we concluded that “the Legislature has classified that type of crime in which a jury waiver may not be accepted, and we are not disposed to engage in a reform of G. L. c. 263, § 6, along the lines which the defendant seeks. Any change in this conclusion must await action by the Legislature.” Id. at 607. We continue to believe that there is no State constitutional right to waive a jury in capital cases. Whether a nonjury trial is available is a result of numerous policy considerations appropriate for the Legislature. As the defendant cannot identify a constitutional right to waive a jury, most of his arguments are policy matters suitable for legislative consideration.
The defendant argues that the judge’s insistence that the entire record be admitted was based on a misunderstanding of the medical records statute, G. L. c. 233, § 79. Any error has not been preserved. The defendant ultimately indicated that he was “content” with the medical records submitted to the jury. Thus, we review to determine whether the admission of the evidence created a substantial likelihood of a miscarriage of justice. Commonwealth v. Murphy,
The defendant has, however, pointed us neither to a specific item of inadmissible evidence that was given to the jury, nor to an item of admissible evidence that the jury were not allowed to see. His claim is rather that the jury, faced with a large amount of documentary evidence, simply disregarded the medical records.
3. The prosecutor’s closing argument. The defendant maintains that the prosecutor’s use of the phrase “justice delayed is justice denied” in his closing argument was improper. The defendant did not object to the phrase during trial; therefore, we review the argument to determine whether it created a substantial likelihood of a miscarriage of justice. Commonwealth v. Mello,
It is improper for a prosecutor to equate a guilty verdict with justice. See Commonwealth v. Degro,
We review other aspects of the prosecutor’s closing, to which the defendant did object, for prejudicial error. See Commonwealth v. Rosario,
The defendant also objected to what he alleges was burden-shifting language regarding the lack of eyewitness testimony to refute the defendant’s version of the shooting and to the absence of “real” evidence of any mental illness. We see no impropriety. The first comment, that the defendant “killed the only other person there to contradict him,” simply highlighted the inconsistencies in the defendant’s accounts of his memory of the shooting. Furthermore, given that what was at issue was the defendant’s state of mind, it is unlikely that this statement had any significant effect on the verdict. See Commonwealth v. Viriyahiranpaiboon,
As for the prosecutor’s assertion that there was no real evidence of the defendant’s mental illness, in context, this statement was merely comment on the evidence put before the jury, not a reflection on the absence of evidence, which might be improper, see Commonwealth v. Silanskas,
That the defendant was not mentally ill on the night in question is a fair inference from the evidence, and the prosecutor was entitled to invite the jury to draw that inference. Testimony showed that the defendant concealed the gun from the victim before he shot her, fled after the murder, and hid the gun during his flight. Shortly after the murder, he called a colleague to explain that he would be absent from work for some time and to ask him to inform his mother that he was all right. He later made a plan to surrender to authorities and disposed of the gun before surrendering. In addition, several witnesses testified that the defendant appeared completely normal in the hours just before the murder. Furthermore, the judge’s instructions made clear that it was the Commonwealth’s burden to prove that the defendant was criminally responsible, and that the defendant was not required to prove anything.
Finally, the defendant maintains that the prosecutor misstated the law of criminal responsibility and thereby improperly shifted the burden of proof. In what appears to have been an attempt to provide a shorthand definition of criminal responsibility, the prosecutor made the following comment:
“If he’s got such a serious mental illness — and that’s what it’s got to be for him to be found not guilty by reason of insanity — serious mental disease or defect. Not just some mental problems. Serious to the point where he is incapacitated. He is not responsible for his actions.”
The defendant objected immediately, and the judge told the jury, “Members of the jury, I will be instructing you on the exact wording of this definition.” The prosecutor then defined criminal responsibility fully. Later, in her charge, the judge gave an extensive and accurate instruction on the law of criminal
The defendant claims also that the prosecutor’s statement on criminal responsibility shifted the burden of proof. The defect in the remark was that it was a truncated statement of the criteria for determining criminal responsibility. It suggested nothing regarding the Commonwealth’s burden of proof. In any event, the judge’s criminal responsibility instruction repeatedly placed the burden of proof on the Commonwealth.
4. Relief pursuant to G. L. c. 278, § 33E. We have considered the entire record pursuant to our obligation under G. L. c. 278, § 33E. We see no reason to exercise our authority to reduce the jury’s verdict or to order a new trial. The defendant received a fair trial; the jury were warranted in finding that the Commonwealth had proved beyond a reasonable doubt that the defendant was criminally responsible, and that he acted with deliberate premeditation and with extreme atrocity and cruelty.
Judgment affirmed.
Notes
The motion judge ruled that, by equating the degree of certainty needed for a guilty verdict with the certainty jurors would require in making important decisions in their own lives, the trial judge had “impermissibly detracted from the seriousness of the issues facing the jury and from the Commonwealth’s burden of proof.” Commonwealth v. Francis,
Article III, § 2, of the United States Constitution guarantees jury trial in all criminal cases “except in cases of impeachment.” See Sixth Amendment to the United States Constitution (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed”). However, there is no requirement of a jury for the trial of petty offenses. Schick v. United States,
“Capital” denominates those cases in which upon conviction a sentence of life without the possibility of parole will be imposed. See Dickerson v. Attorney Gen.,
The defendant suggests that judges may be “more receptive [than juries] to a [criminal] responsibility defense.” The solution is to implement safeguards attempting to ensure that the jury in such a case will not be swayed by any such prejudices. We have attempted to do this. See, e.g., Commonwealth v. Seguin,
To the extent this court appeared to state otherwise in Commonwealth v. O’Brien,
At the time the O’Brien case was decided, G. L. c. 278, § 33E, applied in cases where there was a conviction of murder in the second degree as well as in the first degree. The statute has since been amended to apply only when there is a conviction of murder in the first degree. See St. 1979, c. 346, § 2. The amendment does not alter our analysis.
General Laws c. 233, § 79, provides in relevant part:
“Records kept by hospitals, dispensaries or clinics . . . may be admitted by the court, in its discretion, as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases and the court may, in its discretion, admit copies of such records, if certified by the persons in custody thereof to be true and complete; but nothing therein contained shall be admissible as evidence which has reference to the question of liability.”
For example, at one point, the judge asked defense counsel, “[Are you]
The medical records submitted comprised approximately 1,000 pages. They were not submitted until after the jury had begun their deliberations. The jury returned a guilty verdict less than one hour after receiving the exhibits. The jury deliberated only two hours in total.