Com. v. Bray

• Decision Date: 09 May 1990
• Parties: COMMONWEALTH v. Kevin BRAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 538

553 N.E.2d 538

407 Mass. 296

COMMONWEALTH v. Kevin BRAY.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 6, 1989.

Decided May 9, 1990.

Brownlow M. Speer, Committee for Public Counsel Services, for defendant.

Wendy Murphy, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

On May 13, 1983, a jury found the defendant guilty of murder in the second degree and of assault by means of a dangerous weapon (two counts). After sentences were imposed, the defendant appealed, and on May 1, 1985, the Appeals Court affirmed the convictions. Commonwealth v. Bray, 19 Mass.App.Ct. 751, 477 N.E.2d 596 (1985). Subsequently, the defendant filed a pro se motion, later amended with the assistance of counsel, for a new trial of the murder indictment. The trial judge denied the amended motion, and the defendant appealed. We granted the defendant's application for direct appellate review. We now affirm the denial of the motion for a new trial.

The defendant's motion was grounded on two claims of error in the judge's jury instructions, only one of which is asserted on appeal. The defendant contends that the judge erred by instructing the jury that the evidence of a defendant's intoxication is irrelevant to the question of malice in murder. The defendant says that the judge should have instructed the jury in a manner consistent with the rule this court subsequently articulated in Commonwealth v. Grey, 399 Mass. 469, 505 N.E.2d 171 (1987), and that counsel's failure to raise that issue either at trial or in the first appeal constituted ineffective assistance of counsel. ¹ In Grey, we held that evidence of a defendant's mental impairment is relevant and admissible on the question of malice, id. at 470-471, 505 N.E.2d 171, and in Commonwealth v. Glass, 401 Mass. 799, 809-810, 519 N.E.2d 1311 (1988), we made clear that mental impairment includes impairment due to intoxication.

In denying the motion for a new trial, the judge addressed the defendant's challenge to the intoxication instruction, and thus, for that reason alone, the question is properly before us. Commonwealth v. McLaughlin, 364 Mass. 211, 229-231, 303 N.E.2d 338 (1973). The judge acknowledged that, according to the law declared in Grey subsequent to the trial, the jury instruction was incorrect, but he concluded that the Grey rule should not be applied retroactively to the defendant's trial. We agree.

In Commonwealth v. Breese, 389 Mass. 540, 451 N.E.2d 413 (1983), relying on United States Supreme Court decisions, we laid out an analytical framework for determining whether decisional law should apply retroactively to earlier trials or should operate prospectively only. We stated that decisional law is usually retroactive, but, if the decision announces a new rule, it may apply prospectively only. Id. at 541, 451 N.E.2d 413. Whether a new rule will apply prospectively only, we said, depends on a three-part test. Id. That test, which originated in Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965), implicates the following criteria: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967). Brown v. Louisiana, 447 U.S. 323, 328, 100 S.Ct. 2214, 2219, 65 L.Ed.2d 159 (1980) (plurality opinion of Brennan, J.). Breese, supra 389 Mass. at 548, 451 N.E.2d 413.

We made no suggestion in Breese, which was an appeal from the denial of a motion for a new trial after final judgment (collateral review), that application of the three-part retroactivity test was limited to collateral appeals. In fact, the Supreme Court had declared in Stovall v. Denno, supra 388 U.S. at 300, 87 S.Ct. at 1971, that "no distinction is justified between convictions now final ... and convictions at various stages of trial and direct review." The Court characterized such a distinction as "unsupportable." Id. at 300-301, 87 S.Ct. at 1971-1972. See Griffith v. Kentucky, 479 U.S. 314, 329, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (White, J., with whom Rehnquist, C.J., and O'Connor, J., joined, dissenting).

In cases subsequent to Breese, the Supreme Court has sharply distinguished between cases on direct review or in which the conviction has not become final and cases on collateral review. In Griffith v. Kentucky, supra, which involved two cases in which the defendants' convictions had not become final, the Supreme Court was asked to decide whether the petitioners, one of whom had been convicted in a State court proceeding and the other of whom had been convicted in a Federal District Court, should receive the benefit of the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After the convictions in Griffith, but before the time for appellate review had expired, Batson overruled a portion of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), thereby making it much easier for a criminal defendant to establish a prima facie case of racial discrimination by a prosecutor in jury selection than it had been under Swain. The Court held in Griffith that a new criminal rule, such as the rule announced in Batson, applies retroactively to all cases, State and Federal, pending on direct review or in which the conviction is not yet final. Griffith, supra 479 U.S. at 320-328, 107 S.Ct. at 712-716. The Court reasoned that, after it has declared a new rule in a particular case, "the integrity of judicial review" requires that that rule be applied by the Supreme Court and all lower courts to all similar cases which have not gone to final judgment. Id. at 323, 107 S.Ct. at 713. "[S]elective application of new rules," the Court concluded, "violates the principle of treating similarly situated defendants the same." Id. Thus, the Court moved away from the Linkletter- Stovall three-part test in its resolution of the retroactivity question in cases in which judgment had not become final.

Then came Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a case involving collateral review. After an unsuccessful State court appeal, the defendant filed a habeas corpus petition in the Federal District Court. Among other things, he argued that the rule of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), holding that the Sixth Amendment to the United States Constitution requires that the jury venire be drawn from a cross section of the community, should be extended to the petit jury as well. The District Court denied the petition, and the Court of Appeals for the Seventh Circuit affirmed. The Supreme Court affirmed without addressing the Sixth Amendment question, concluding that a rule that would extend the fair cross section requirement to the petit jury should in no event be applied retroactively to cases on collateral review. The Court did not apply the three-part test.

In Teague, supra 109 S.Ct. at 1070-1072, Justice O'Connor, joined by the Chief Justice, Justice Scalia, and Justice Kennedy, discussed the inconsistent and unsatisfactory results produced by the three-part test approach. The Court also focused on the importance of the "principle of finality which is essential to the operation of our criminal justice system." Id. at 1074. "Without finality," Justice O'Connor wrote, "the criminal law is deprived of much of its deterrent effect." Id. Justice O'Connor then announced the adoption, with one modification, of Justice Harlan's view of retroactivity for cases on collateral review. Id. at 1075. That view, which had been expressed earlier by Justice Harlan in separate opinions in Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 1164, 28 L.Ed.2d 404 (1971), and Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248 (1969), was that new constitutional rules should not be applied retroactively to criminal cases on collateral review unless they fall within either of two very limited exceptions. "The first exception [is] that a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.' ... The second exception [is] that a new rule should be applied retroactively if it requires the observance of 'those procedures that ... are implicit in the concept of ordered liberty.' " Teague, supra 109 S.Ct. at 1075, quoting Mackey, supra 401 U.S. at 692-693, 91 S.Ct. at 1180. The plurality in Teague modified the second Harlan exception by limiting its scope "to those new procedures [of fundamental fairness] without which the likelihood of an accurate conviction is seriously diminished." Teague, supra 109 S.Ct. at 1076-1077.

Since Teague was decided, the Supreme Court has twice reiterated the retroactivity rule that that decision announced. In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989), a capital case, the Court stated: "Because Penry is before us on collateral review, we must determine, as a threshold matter, whether granting him the relief he seeks would create a 'new rule.' Teague v. Lane, [supra ]. Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions. Id. [109 S.Ct.] at [1075]...." See Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990).

It is appropriate for us to consider whether in Commonwealth v. Grey, supra, we announced a new criminal rule and, if so, whether that rule falls within one of the exceptions discussed in Teague. In Grey, supra 399 Mass. at 470-471, 505 N.E.2d 171, we held that evidence of a defendant's mental impairment (including impairment due to...