Com. v. Arsenault

• Decision Date: 02 March 1972
• Citation: 361 Mass. 287,280 N.E.2d 129
• Parties: COMMONWEALTH v. Henry P. ARSENAULT, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 129

280 N.E.2d 129

361 Mass. 287

COMMONWEALTH v. Henry P. ARSENAULT, Jr.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 4, 1971.

Decided March 2, 1972.

William P. Homans, Jr., Boston (Thomas G. Shapiro, Boston, with him), for defendant.

Terence M. Troyer, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO, and HENNESSEY, JJ.

QUIRICO, Justice.

This is an appeal under the provisions of G.L. c. 278, §§ 33A--33G, from the defendant's second conviction of murder in the first degree after reversal of his earlier conviction. A brief summary of the prior proceedings in this case will be helpful in understanding some of the issues raised by the present appeal. On February 9, 1955, the defendant, along with two other persons was indicted for first degree murder. In June, 1955, he was tried and convicted of murder in the first degree with no recommendation by the jury that the death sentence not be imposed and thereupon he was sentenced to death. G.L. c. 265, § 2, as amended through St.1951, c. 203. That conviction was affirmed by this court on March 20, 1957, in Commonwealth v. Devlin, 335 Mass. 555, 141 N.E.2d 269. On December 3, 1957, the Governor, acting by and with the advice of the Council, commuted the sentence to life imprisonment. Part II, c. 2, § 1, art. 8, of the Constitution of the Commonwealth.

In 1966, the defendant sought a writ of error claiming that the intervening decision of the United States Supreme Court in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, applied retroactively and voided his conviction. On February 2, 1968, this court held that White v. Maryland, supra, did not apply retroactively and accordingly the defendant's conviction was affirmed. Arsenault v. Commonwealth, 353 Mass. 575, 233 N.E.2d 730. That decision was reversed by the United States Supreme Court on October 14, 1968, in Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5. The defendant was tried a second time in February, 1970. The jury again found him guilty of murder in the first degree, but this time they recommended that the death sentence be not imposed. G.L. c. 265, § 2, as amended.

Before the jury were impanelled for the second trial, the defendant moved 'for an order directing the jury, in the event of a verdict to (guilty of) murder in the first degree, to include in its verdict as a part thereto, its recommendation that the sentence of death be not imposed.' The trial judge denied this motion. In impanelling the jury the judge interrogated each prospective juror as to whether he had any opinion that would prevent or preclude him or her from finding the defendant guilty of a crime punishable by death, and he excused a number of prospective jurors because of their opinions on this issue. At the close of the evidence the defendant requested the judge to instruct the jury that if they returned a verdict of guilty of murder in the first degree, they must also recommend that the sentence of death be not imposed. The judge refused to give such an instruction. The defendant duly excepted to the denial of his motion and request for instruction on this subject. The judge submitted the case to the jury with instructions that they were permitted, but not required, to recommend that the sentence of death be not imposed. As noted above they did so recommend.

The defendant contends that because of the Governor's commutation of his death sentence after the first trial, he could not lawfully be subjected a second time to the possibility of a death sentence. Relying on the recent decision of the United States Supreme Court in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300, he contends that the trial judge's denial of his pre-trial motion and refusal to instruct the jury as requested by him subjected him to double jeopardy in violation of the Fifth Amendment to the Constitution of the United States. ¹

In Price v. Georgia, supra, the defendant was tried for murder and found guilty of the lesser included crime of voluntary manslaughter. Upon reversal of that conviction he was once again tried for murder. The court held that this procedure subjected the defendant to double jeopardy, reasoning that the verdict of guilty of voluntary manslaughter, returned in Price's first trial constituted an implied acquittal on the 'greater charge' of murder. 398 U.S. at 329, 90 S.Ct. 1757, 26 L.Ed.2d 300.

It is worth noting at this point that the decision of Price v. Georgia, supra, decided in 1970, added nothing to the law of this Commonwealth, since this court had reached the same conclusion in Commonwealth v. Burke, 342 Mass. 144, 172 N.E.2d 605, decided in 1961. In that case the defendant was first tried on an indictment charging the crime of murder in the second degree and was found guilty of manslaughter. We reversed this conviction in 339 Mass. 521, 159 N.E.2d 856, and before he was tried a second time the trial judge reported for our decision the question whether the defendant should be tried on the full indictment charging murder in the second degree, or only on so much of the indictment as charged manslaughter. We held that the second trial should be limited to the charge of manslaughter on substantially the same reasoning used in the later decision in Price v. Georgia, supra. ²

It is obvious from our brief statement of the holdings in the Price and Burke cases that they arose from a factual background materially different from that in the case now before us. In both the Price and the Burke cases there were prior judicial determinations, implied or expressed, that the defendants were not guilty of the greater crime charged in the indictments. Each case held that the reversal of the defendant's conviction of the lesser crime included in the same indictment entitled him to a new trial on the charge of that lesser crime, but left undisturbed the prior acquittal of the greater crime. In the present case all we have by way of prior judicial action is the defendant's conviction for the highest crime charged in the indictment, viz., murder in the first degree. The jury in the first trial, although permitted to do so, did not make a recommendation that the death penalty be not imposed on the defendant. The reduction in penalty from a sentence of death to life imprisonment was not the result of any judicial action, but rather resulted from intervention by the Governor after the conviction and death sentence had been upheld by this court.

Although it has sometimes been said that the Governor's power to commute sentences is derived from his 'power of pardoning offences' contained in Part II, c. 2, § 1, art. 8, of the Constitution of the Commonwealth (Opinion of Justices, 190 Mass. 616, 621, 78 N.E. 311; Opinion of Justices, 210 Mass. 609, 610--611, 98 N.E. 101; 4 Op.Atty.Gen. 119, 120--121; 8 Op.Atty.Gen. 6), a commutation is not the same as a pardon. Perkins v. Stevens, 24 Pick, 277, 280. 'A commutation of sentence . . . is the substitution of a lighter for a more severe punishment . . ..' Opinion of Justices, 210 Mass. 609, 611, 98 N.E. 101, 102. 'The commutation of the sentence did not do away with the conviction. . . . The effect of the commutation was simply to remit a portion of the sentence. The conviction remained undisturbed by the commutation . . ..' Rittenberg v. Smith, 214 Mass. 343, 347, 101 N.E. 989, 990. ³ We do not agree with the defendant's contention that the Governor's commutation of his original sentence from death to life imprisonment operated to put him 'in the same position as if he had received a sentence of life imprisonment by a verdict of the jury or judgment of the court.' We conclude that the act of executive clemency which reduced the sentence imposed on the defendant after his first trial did not operate as an acquittal of so much of the crime charged against him which required or permitted the imposition of the death penalty. For this reason we hold that there was no error by the judge in refusing to either direct or instruct the jury that if they found the defendant guilty of murder in the first degree they were required to recommend that the death sentence be not imposed.

The defendant concedes that his case differs from the Price case in that he was convicted of the same crime, viz., murder in the first degree, at each of his trials, whereas Price, although charged with murder at his first trial, was convicted only of manslaughter, which implied his acquittal on the charge of murder. Despite these admitted differences, the defendant sought to profit from the Price decision by the ingenious argument that under G.L. c. 265, § 2, as amended through St.1951, c. 203, we now have two different crimes of murder in the first degree, the greater being that punishable by death, and the lesser being that punishable by life imprisonment. Since we have already held that the Governor's commutation of the defendant's death sentence was not equivalent to a jury recommendation that the death penalty be not imposed, it may not be necessary for us to address ourselves to this second aspect of the defendant's argument. However, since the subject of the legal effect of such a jury recommendation has been fully argued, we shall treat it as an alternate ground for rejecting the defendant's claim of double jeopardy.

General Laws c. 265, § 2, recognizes only one crime identifiable as murder in the first degree, and it specifies that the penalty for that crime is death unless the jury recommends that the death sentence be not imposed. In the latter event, it specifies a punishment of life imprisonment. It is clear under our decisions that the jury must first decide whether the defendant charged with murder in the first degree is guilty or not guilty of that crime. If the jury decide that he is guilty, they then consider a second question, viz., whether they shall recommend that the death penalty be not...