Commonwealth v. JohnsonCommonwealth v. Johnson
Lead Opinion
The defendant filed an application in the county court under G. L. c. 278, § 33E, for leave to appeal from the denial of his second motion for a new trial. A single justice reserved and reported the case to the full court on the question whether a so-called Acevedo error in the jury instructions on the burden of proof on provocation presents a “new and substantial” question under the statute, Commonwealth v. Acevedo,
“An issue is not ‘new’ within the meaning of G. L. c. 278, § 33E, where either it has already been addressed, or where it could have been addressed had the defendant properly raised it at trial or on direct review.” Commonwealth v. Ambers,
The defendant argues that the question is new and substantial because in his direct appeal, decided five months before Acevedo, the court was “not yet prepared to adopt” the Acevedo analysis, and therefore “his argument was never properly considered.” See Mains v. Commonwealth,
The defendant next argues that even if “in its most literal sense the present claim... is not ‘new,’ ” it was wrongly decided in his direct appeal. “The statute’s ‘new and substantial’ test does not contemplate revisiting the decision in a capital appeal merely to reconsider issues that were decided in the direct appeal, which the defendant claims were incorrectly decided . . . .” Commonwealth v. Gunter,
Even if the question were new and substantial, the defendant would not prevail. Where the only evidence of provocation in this case was provided by the testimony of the defendant, and where the jury convicted him of murder in the first degree under the theory of extreme atrocity or cruelty as well as deliberate premeditation, they necessarily rejected his version of events and his theory of provocation, i.e., fright. Commonwealth v. Johnson, supra at 618. Thus, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, supra at 301. See also Commonwealth v. Vinton,
We conclude that the defendant’s claims are not new and substantial within the meaning of G. L. c. 278, § 33E. We continue to adhere to the principle that single justices, whose decisions under § 33E are final and unreviewable, see Commonwealth v. Gunter,
So ordered.
Concurrence Opinion
(concurring in the judgment, with whom Botsford and Lenk, JJ., join.) I agree with the court that, evaluating this claim on the merits, the court must affirm the defendant’s conviction. In the circumstances of this case, there was no substantial risk of a miscarriage of justice arising from the judge’s error in instructing the jury that, to prove voluntary manslaughter, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant injured the victim in the heat of passion or by using excessive use of force in self-defense. By finding the defendant guilty of murder in the first degree under the theory of extreme atrocity or cruelty, the jury essentially rejected the defendant’s version of events beyond a reasonable doubt, including the version that suggested that the killing occurred in the heat of passion on a reasonable provocation or through excessive use of force in self-defense. I write separately because I do not agree with the court’s conclusion that this issue is not “new” and therefore need not be decided on the merits.
In his closing instructions, the judge told the jury:
“The factor that distinguishes voluntary manslaughter from murder is not the absence of intent but rather the absence of malice aforethought. So in order to prove a defendant guilty of voluntary manslaughter, . . . the Commonwealth must prove three elements beyond a reasonable doubt, first that the defendant inflicted an injury upon the victim . . . from which he died; secondly, that the defendant injured [the victim] ... in the heat of passion or using excessive force in self-defense and, thirdly, that the homicide was committed unlawfully without legal excuse or justification.”
Later in his instructions, the judge said: “The Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in the heat of passion or sudden provocation and that there was a causal relation between any such provocation and the killing.” The first instruction is error because it incorrectly told the jury that they could not convict the defendant of voluntary manslaughter unless the Commonwealth proved beyond a reasonable doubt the absence of malice, which here meant that the defendant acted in the heat
On direct review, after rejecting the defendant’s claim that the judge’s instruction on self-defense resulted in a substantial likelihood of a miscarriage of justice, the court characterized as a “somewhat more plausible claim” that the defendant acted in the heat of passion and therefore was guilty of voluntary manslaughter. Commonwealth v. Johnson,
“But the judge twice stated in his charge that the Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in the heat of passion or on sudden provocation. Once again, the defendant did not object to these instructions, and viewing them as a whole we see nothing approaching a substantial likelihood of a miscarriage of justice.”
Id. The court’s characterization of the judge’s charge was factually incorrect. Not only did it fail to acknowledge that the judge had erred in instructing that, to prove voluntary manslaughter, the Commonwealth has the burden of proving heat of passion on reasonable provocation beyond a reasonable doubt, but the court declared that the judge had twice provided the correct instruction, where the judge had only once provided a proper instruction and even that was later infected with error.
Under G. L. c. 278, § 33E, after a defendant’s conviction of
The first question, then, is whether an issue is “new and substantial” under G. L. c. 278, § 33E, where the issue was briefed and addressed by the court on direct appeal, but where the court misstated the essential facts underlying the claim of error and therefore never truly confronted the issue. If we are to remain true to the spirit of § 33E, we must recognize that the issue here is “new and substantial” under § 33E, and should be decided on the merits.
Under § 33E, we review the entire record of a conviction of murder in the first degree, examining both the law and the evidence, considering the issues raised on appeal, the issues raised through objections at trial, and the issues that reasonably should have been raised on appeal and objected to at trial, to ensure that there has not been a miscarriage of justice. See Commonwealth v. Gunter,
I agree that an issue is generally not “new” under § 33E, where it has been raised by the defendant and addressed by the court in its opinion on direct appeal. See Commonwealth v. Gunter, supra at 487. I also agree that an issue is generally not “new” under § 33E, where it is not specifically addressed by the court in its opinion on direct appeal but where there is reason to be confident that the issue has been considered and rejected by the court under applicable law through its plenary review. See Commonwealth v. Smith,
A few months ago, we stated, “Regardless of the nuances of the ‘new and substantial’ standard and its application in different contexts, the court in the past has expressed confidence — and we remain confident today — that single justices faced with gatekeeper applications under § 33E will allow cases to proceed to the full court in all meaningful matters . . . and will correctly screen out those that do not warrant another appeal.” Commonwealth v. Smith, supra at 322. See Leaster v. Commonwealth,
Section 33E was amended twelve years after the execution of Nicola Sacco and Bartolomeo Vanzetti following their convictions of murder in the first degree. The spirit of the new legislation was succinctly summarized in a report of the Judicial Council of Massachusetts in 1927, which proposed the statutory language that was ultimately enacted into law: “It is vital that our Courts do justice; it is also vital that people know that they do justice.” Third Report of the Judicial Council of Massachusetts, Pub. Doc. No. 144, at 40 (1927). We neither ensure that we do justice in a case of murder in the first degree nor ensure the public’s confidence that justice is done where we fail to address on the merits an issue that was never fairly considered because the underlying facts were mistakenly presented by the court on direct appeal. Where, as here, a judge’s error potentially may create a meaningful risk of a miscarriage of justice, we ensure that justice is done only by confronting the error and
I join in the court’s judgment because I agree that, in view of the evidence in the case and the jury’s finding of extreme atrocity or cruelty, the error here did not produce a substantial risk of a miscarriage of justice. But I do not agree that justice would be done in this case if the full court had not made such a determination after fairly considering the error in the judge’s charge.
Notes
I will focus only on whether the issue is “new” because it is plain that the issue is “substantial,” as that term has been defined in the context of the gatekeeper provision of G. L. c. 278, § 33E. In Commonwealth v. Gunter,
We would not open the door to a plethora of frivolous collateral appeals if we were to conclude that the issue here is “new and substantial.” Because of the care we take in cases of murder in the first degree, I have no reason to believe there are many cases with a factual inaccuracy central to a legal claim as significant as that found here.