Com. v. Harrington

• Citation: 399 N.E.2d 475,379 Mass. 446
• Parties: COMMONWEALTH v. John J. HARRINGTON.
• Decision Date: 09 January 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 475

399 N.E.2d 475

379 Mass. 446

COMMONWEALTH v. John J. HARRINGTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 11, 1979.

Decided Jan. 9, 1980.

David J. Fine, Cambridge, for defendant.

Michael J. Traft, Sp. Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

This is an appeal by the defendant from the denial of his motions for a new trial on two indictments charging the crimes of murder and armed assault with intent to rob. The appeal was heard by the Appeals Court which reversed the conviction of murder on a ground not theretofore raised by the defendant either at his trial or in his assignment of errors. Commonwealth v. Harrington, --- Mass.App. --- ^a, 389 N.E.2d 772 (1979). We granted the Commonwealth's request for further appellate review. G.L. c. 211A, § 11. For the same reasons stated by the Appeals Court in its opinion, supra, we reverse the judgment and vacate the verdict of guilty of murder against the defendant. We also set aside the verdict of guilty of armed assault with intent to rob.

We review the prior proceedings in this case to the extent necessary for an understanding of the issue on which we base our decisions and the reasons for the conclusions which we reach.

On June 15, 1973, the defendant was indicted for the crimes of murder and assault with intent to rob, being armed with a dangerous weapon, to wit, a knife, both crimes being alleged to have been committed against Alfred Mott on May 2, 1973. On November 17, 1973, he was convicted of murder in the second degree, for which he was sentenced to life imprisonment at the Massachusetts Correctional Institution at Walpole, and of the armed assault, this charge being placed on file.

With the assistance of different counsel the defendant appealed the murder conviction to this court pursuant to G.L. c. 278, §§ 33A-33G, originally alleging numerous errors but ultimately arguing only those relating to capital punishment and the exclusion of five jurors and expressly waiving all others. We affirmed the judgments in Commonwealth v. Harrington, 367 Mass. 13, 323 N.E.2d 895 (1975), by an opinion which concluded, at 24, 323 N.E.2d at 902: "On appraisal of the whole record, we find no occasion to disturb the conviction under G.L. c. 278, § 33E."

On June 2, 1977, the defendant with the assistance of still other counsel filed a motion for a new trial on both indictments, and on October 11, 1977, acting pro se, he filed what was treated as a supplement to the previous motion. We refer to the two combined as a single motion for a new trial. Before filing this motion the defendant obtained leave to do so from a single justice of this court as required by the final sentence of G.L. c. 278, § 33E, in view of the prior review of his case by this court under the statute in Commonwealth v. Harrington, supra at 24, 323 N.E.2d 895. We do not construe the granting of leave to file the motion for a new trial as once again bringing to this court "the whole case for (our) consideration of the law and the evidence." G.L. c. 278, § 33E.

The motion for a new trial was heard by the trial judge and on November 7, 1977, it was denied by him without his filing any findings, rulings or decision thereon. The appeal from that denial is the vehicle which started this case on its route to this court. Since our ultimate disposition of this appeal does not rest on the issues raised by the motion, we summarize them briefly in the margin below for information only. ¹

Before leaving the subject of the motion for a new trial we note that the defendant attempted thereby to raise a number of issues which he could have raised at the original trial or in the course of his direct appeal, but which he did not raise at either point. While trial judges may have discretionary power to permit a motion for a new trial to be used as the vehicle by which to recoup or resurrect opportunities for appellate review previously lost by waiver or otherwise, on issues which could have been but which were not seasonably raised, the exercise of that power should be reserved for deserving situations. See Commonwealth v. DiPietro, 373 Mass. 369, --- - --- ^b, 367 N.E.2d 811 (1977) and cases cited. It should not be exercised routinely to afford parties a substitute for or supplement to appellate opportunities previously available to them but not recognized or not exercised. The indiscriminate exercise of this power effectively circumvents the long-standing rule that issues not raised at trial or pursued in available appellate proceedings are treated as waived. Commonwealth v. Grace, --- Mass. ---, --- ^c, 381 N.E.2d 139 (1978); Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973), and cases cited. The trial judge's discretionary power to give relief from such a waiver by permitting such issues to be raised for the first time by a motion for a new trial should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.

The Appeals Court reversed the conviction of the defendant on the ground that the judge's instruction on the burden of proof on self-defense was constitutionally inadequate, Commonwealth v. Harrington, --- Mass.App. ---, --- ^d, 389 N.E.2d 772 (1979), a ground perceived after the hearing on the new trial motion based on our decisions in Commonwealth v. Stokes, --- Mass. --- ^e, 374 N.E.2d 87 (1978) and later cases on the same subject. While a defendant is usually required first to raise such an issue at trial or by a motion for a new trial, and not for the first time in an appellate court, Commonwealth v. McLaughlin, 364 Mass. 211, 235, 303 N.E.2d 338 (1973), because this issue presents only an issue of law and not of fact, and also because the trial judge has since retired, we conclude as did the Appeals Court that judicial economy would best be served by our passing on the question in its present posture, rather than by requiring a new proceeding seeking postconviction relief. Cf. Commonwealth v. Harrington, --- Mass.App. ---, --- n.3 ^f, 389 N.E.2d 772 (1979). Because the defendant was tried before Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and its progeny, we review this issue on the basis of the principles stated in Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976), and Stokes, supra. We do so notwithstanding the failure of defense trial counsel to request any instructions on self-defense or to object to the instructions given thereon, to the end that an alleged error of constitutional dimension, if we so conclude it to be, shall not go uncorrected.

1. Did evidence fairly raise the issue of self-defense? A defendant is entitled to have the jury at his trial instructed on the law relating to self-defense if the evidence, viewed in its light most favorable to him, is sufficient to raise the issue. Commonwealth v. Monico, 373 Mass. 298, --- ^g, 366 N.E.2d 1241 (1977). There must be evidence warranting at least a reasonable doubt that the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force that was reasonably necessary in all the circumstances of the case. Commonwealth v. Harris, --- Mass. ---, --- - --- ^h, 380 N.E.2d 642 (1978), and cases cited. Absent the latter two elements, an instruction on manslaughter because of reasonable provocation or because of the use of excessive force in self-defense may be warranted.

In summarizing the evidence in the light most favorable to the defendant, we look first to that part of his own testimony relating to the events leading up to the homicide. ² The defendant and one Rosemarie LaTerza went to the rooming house of the victim, Alfred Mott, for the purpose of finding a certain youth named Jimmy, believed to have been in Mott's company a short time earlier. After ringing the bell they were admitted to the building and shown to Mott's room by another roomer who knocked on Mott's door. Mott answered that he would "be there in a minute." When Mott opened the door, the defendant and LaTerza, neither of whom knew Mott, stepped into the room and the door closed behind them. Mott asked what they wanted and the defendant asked whether Jimmy was there. When Mott responded, "Jimmy who," the defendant said, "You know, Jimmy, the little sixteen-year old kid. I just saw him leave. Did he come back?" Mott said, "No, no, Jimmy is not here," and, without saying more, he immediately threw himself on the defendant, causing the latter to fall backwards over a piece of furniture. Mott came down on top of the defendant, and punching and kicking him "like he's gone completely crazy." After a few seconds and five or six punches, the defendant reached for a hunting knife which he habitually kept concealed in his waist band. As soon as he grasped his knife, Mott grabbed his hand and they struggled for possession of the weapon, each trying to turn it on the other. In the course of the struggle the defendant received a serious cut on his leg requiring hospitalization for over two weeks. Only after the defendant had been stabbed did he attempt to stab Mott with the knife. The defendant was scared and he did not know what was happening when Mott attacked him.

Other witnesses testified that after the fracas the defendant's watch was found, detached from the band, on the floor of the room, and that dishes and small statutes were found broken and strewn about the room. The room was small and contained a bed, a rocking chair, a desk, a small table with a television on it, a dresser, and a bookcase which was found partially crushed. The door to the...