Com. v. Adrey

• Decision Date: 16 June 1986
• Citation: 397 Mass. 751,493 N.E.2d 875
• Parties: COMMONWEALTH v. Jerry G. ADREY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 875

493 N.E.2d 875

397 Mass. 751

COMMONWEALTH v. Jerry G. ADREY.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Feb. 4, 1986.

Decided June 16, 1986.

Peter G. DeGelleke, Bedford, for defendant.

Robert J. Bender, Asst. Dist. Atty., for Com.

Before WILKINS, LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

On December 11, 1974, a jury convicted the defendant of murder in the second degree on an indictment charging him with murder in the first degree. In 1978, this court affirmed the conviction after plenary review under G.L. c. 278, § 33E, as amended through St.1974, c. 457. ¹ Commonwealth v. Adrey, 376 Mass. 747, 383 N.E.2d 1110 (1978).

In 1982, the defendant filed a motion for postconviction relief under Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979), alleging that the judge's instructions to the jury erroneously relieved the Commonwealth of its burden of proving every essential element of the crime charged. The trial judge treated this motion as a motion for a new trial, and denied it. The defendant appealed. We granted the Commonwealth's application for direct appellate review and now affirm the order denying the postconviction motion for a new trial.

We announced in Greene v. Commonwealth, 385 Mass. 1008, 1009, 432 N.E.2d 706 (1982), that one convicted of murder in the second degree on an indictment charging murder in the first degree need not seek from a single justice of this court leave to appeal the denial of a motion for a new trial. We said that this is true even if the crime had been committed before July 1, 1979, and the conviction had received the full review required by G.L. c. 278, § 33E. Since our decision in Greene v. Commonwealth, supra, we have applied that rule in other cases. See Commonwealth v. Festa, supra 388 Mass. at 514 n. 2, 447 N.E.2d 1; Commonwealth v. Zezima, 387 Mass. 748, 749, 443 N.E.2d 1282 (1982); Commonwealth v. Hodge, 386 Mass. 165, 166 n. 3, 434 N.E.2d 1246 (1982). We reject the Commonwealth's argument that we should now abandon that rule, and we consider the defendant's appeal despite his failure to seek leave to appeal.

The defendant's sole challenge to the jury instructions focuses on the instruction, twice given, that " [w]here the fact of killing is shown and there are no circumstances disclosed tending to show justification or excuse, then there is nothing to rebut the natural presumption of malice." " [T]he defendant is not entitled to our determination whether the instructions were erroneous if the issues presented could have been raised at trial or on direct appeal but were not.... However, that rule is not without qualification. We have excused the failure to raise a constitutional issue at trial or on direct appeal when the constitutional theory on which the defendant has relied was not sufficiently developed at the time of trial or direct appeal to afford the defendant a genuine opportunity to raise his claim at those junctures of the case.... When we excuse a defendant's failure to raise a constitutional issue at trial or on direct appeal, we consider the issue 'as if it were here for review in the regular course.' Commonwealth v. Kater, 388 Mass. 519, 533, 447 N.E.2d 1190 (1983). If constitutional error has occurred, we reverse the conviction unless the error was harmless beyond a reasonable doubt...." Commonwealth v. Rembiszewski, 391 Mass. 123, 126, 461 N.E.2d 201 (1984) (citations omitted).

The issue now presented by the defendant was not raised at his trial in 1974 nor on appeal in 1978. The defendant argues now for the first time that the reference in the jury instructions to the "natural presumption of malice" resulted in the instructions being constitutionally defective. That reference, it is argued, reasonably could have been understood by the jury as meaning that, if the jury were satisfied that the defendant killed the victim and there was no evidence of justification or excuse, then either malice was conclusively established or the burden of disproving malice was on the defendant. We have previously held that these constitutional theories were not sufficiently developed for a defendant to be chargeable with knowledge about them until the Supreme Court's decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Commonwealth v. Lee, 383 Mass. 507, 510-511, 419 N.E.2d 1378 (1981). DeJoinville v. Commonwealth, 381 Mass. 246, 248-251, 408 N.E.2d 1353 (1980). Because the defendant's trial and earlier appeal predated Sandstrom, we consider his argument on the merits despite his failure to present it heretofore.

We must consider the instruction in question in the context in which it was delivered, in order that we might determine its probable effect on the jury's understanding of their function. Commonwealth v. Nieves, 394 Mass. 355, 360, 476 N.E.2d 179 (1985). Commonwealth v. Doucette, 391 Mass. 443, 450, 462 N.E.2d 1084 (1984). Commonwealth v. Richards, 384 Mass. 396, 399-400, 425 N.E.2d 305 (1981). The judge instructed the jury at length about the presumption of the defendant's innocence and the Commonwealth's burden of proving beyond a reasonable doubt every essential element of the crime charged. He emphasized that "the defendant, of course, does not have to prove that he is not guilty. Quite the reverse is true."

The judge then discussed murder in the first and second degree and manslaughter. He defined murder as "the unlawful...