Com. v. Breese

• Decision Date: 21 June 1983
• Citation: 451 N.E.2d 413,389 Mass. 540
• Parties: COMMONWEALTH v. Glen J. BREESE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 413

451 N.E.2d 413

389 Mass. 540

COMMONWEALTH v. Glen J. BREESE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 8, 1983.

Decided June 21, 1983.

Daniel F. Featherston, Jr., Boston, for defendant.

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

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

Glen J. Breese was convicted of murder in the first degree on February 1, 1979, after being tried on theories of deliberate premeditation and extreme atrocity or cruelty. We affirmed the conviction in a decision rendered June 26, 1980. See Commonwealth v. Breese, 381 Mass. 13, 406 N.E.2d 1292 (1980). Breese now appeals from the denial of his motion for a new trial, filed after rescript. See G.L. c. 278, § 33E. He argues that the trial judge erred in instructing the jury that they should not consider evidence of the defendant's intoxication in determining whether the murder was committed with extreme atrocity or cruelty. Since the challenged instructions accurately reflected the law as revealed by our decisions prior to Breese's trial, see e.g., Commonwealth v. Monsen, 377 Mass. 245, 254, 385 N.E.2d 984 (1979); Commonwealth v. Appleby, 358 Mass. 407, 415-416 & n. 5, 265 N.E.2d 485 (1970), the validity of Breese's claim of error depends on whether our holding in Commonwealth v. Perry, 385 Mass. 639, 648-649, 433 N.E.2d 446 (1982), applies retroactively to his trial. In Perry, which was decided more than three years after Breese's trial, we held that the jury must be permitted to consider the defendant's intoxication in determining whether he murdered with extreme atrocity or cruelty. Id. There was evidence that Breese was intoxicated at the time of the killing.

We hold that Perry is the law only in cases tried after our decision in Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980). Since Breese was tried before Gould was decided, the judge's instructions on extreme atrocity or cruelty were not erroneous. Finding no error, we affirm the denial of Breese's motion for a new trial. The defendant's appeal does not bring to the court "the whole case for its consideration of the law and the evidence." G.L. c. 278, § 33E, as amended through St.1979, c. 346, § 2. See Commonwealth v. Smith, 381 Mass. 141, 146, 407 N.E.2d 1291 (1980); Commonwealth v. Harrington, 379 Mass. 446, 448, 399 N.E.2d 475 (1980); Commonwealth v. Nolin, 373 Mass. 45, 52, 364 N.E.2d 1224 (1977). Consequently, we do not inquire whether, even in the absence of error, justice requires a new trial or the entry of a verdict of a lesser degree of guilt.

In deciding whether Perry is retroactive, we first must resolve whether the decision announced a new rule. Decisional law usually is retroactive. When a decision announces a new rule, however, the issue arises whether it will be applied only prospectively. The issue is resolved by the application of a three part test which we discuss later in this opinion. That test is not triggered, however, unless the rule announced is new. The requirement of newness has been stated in various ways. In Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971), the Supreme Court declared that in order for one of its decisions "to be applied nonretroactively [it] must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed...." See Desist v. United States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1032, 22 L.Ed.2d 248 (1969) (for decision to be applied prospectively only, it must be "a clear break with the past"); Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 499, 88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231 (1968) (question of nonretroactive application of decision not presented unless decision "constitute[d] a sharp break in the line of earlier authority or an avulsive change which caused the current of the law thereafter to flow between new banks").

Perry did not announce a new rule. The decision was "clearly foreshadowed" by Gould. In Gould, supra 380 Mass. at 684-685, 405 N.E.2d 927, we reasoned that, "if a malicious mind may be considered as evidence that a defendant committed a murder with extreme atrocity or cruelty, then fairness requires that an impaired mind may also be considered as evidence bearing on whether or not the defendant committed the murder with extreme atrocity or cruelty." We reasoned further that "[t]he jurors' broad discretion [in determining whether a murder was committed with extreme atrocity or cruelty] will more accurately reflect the community's conscience, goals, and norms, if the jurors are ... permitted to consider the defendant's peculiar mental state ...." Id. at 685, 405 N.E.2d 927. Finally, we remarked that "[i]mpairment of a defendant's ability to make a decision in a normal manner may have a direct bearing on the degree of murder, and consequently, on the issue of extreme atrocity or cruelty." Id. at 686, 405 N.E.2d 927. In Perry, we recognized that a defendant's mental state may be affected by intoxication as well as by mental illness. Our holding that the jury must be permitted to consider the defendant's intoxication in determining his degree of culpability was based exclusively on Gould.

Since Perry did not announce a new rule, but was clearly foreshadowed by Gould, we hold that the law as stated in Perry applies retroactively to all trials conducted after the date of the Gould decision. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 97-98, 390 N.E.2d 243 (1979). Reaching this conclusion, however, does not help Breese, who was tried before Gould was decided. Consequently, we must consider whether Perry is retroactive to cases tried prior to Gould. In making this determination, we consider whether Gould is retroactive. Perry was a mere application of principles set forth in Gould. The issue of their retroactive effect should be resolved consistently.

In determining whether Gould is retroactive, we first examine the opinion. In Gould, we reversed the first degree murder conviction of a mentally impaired defendant who had been tried under a theory of extreme atrocity or cruelty. We did so, not because the judge's instructions on extreme atrocity or cruelty were erroneous, but pursuant to our duty under G.L. c. 278, § 33E, "to consider broadly the whole case on the law and the facts to determine whether the verdict is 'consonant with justice.' " Gould, 380 Mass. at 680, 405 N.E.2d 927, quoting from Commonwealth v. Davis, 380 Mass. 1, 15 n. 20, 401 N.E.2d 811 (1980). We noted that "General Laws c. 278, § 33E, 'operates as a type of "safety valve" by ensuring review as to all aspects of cases regardless of the absence of claim of error.' Commonwealth v. Brown, 376 Mass. 156, 168 (1978)." Gould, supra, quoting from Commonwealth v. Cole, 380 Mass. 30, 38-39, 402 N.E.2d 55 (1980). Thus, the principle that a defendant is entitled to have the jury consider his mental impairment on the issue of extreme atrocity or cruelty was not applied retroactively even to Gould.

In five direct appeals argued subsequent to Gould, defendants convicted prior to Gould sought either a reversal or a modification of their convictions on the ground that the instructions at their trials on deliberate premeditation or extreme atrocity or cruelty were not consistent with the principles announced in Gould. In Commonwealth v. Cunneen, 389 Mass. 216, 449 N.E.2d 658 (1983), Commonwealth v. Brown, 387 Mass. 220, 225-227, 439 N.E.2d 296 (1982), and Commonwealth v. Shelley, 381 Mass. 340, 354-355, 409 N.E.2d 732 (1980), the defendants did not assert that the failure to give instructions consistent with Gould was error. Instead, the defendants sought relief only under G.L. c. 278, § 33E. As a consequence, the question whether Gould was retroactive was not presented. We reviewed the defendants' claims only to determine whether the verdicts were consonant with justice, using the facts of Gould as a benchmark. We concluded in those cases that, since the evidence of mental impairment was weaker than it was in Gould, the judges' failure to instruct the jury in terms consistent with Gould created no likelihood of a miscarriage of justice. Those cases shed no light on the retroactivity of Gould. In Commonwealth v. Brown, 386 Mass. 17, 32-33, 434 N.E.2d 973 (1982), and Commonwealth v. Chubbuck, 384 Mass. 746, --- - ---, Mass.Adv.Sh. (1981) 2380, 2390-2391, 429 N.E.2d 1002, the defendants asserted that the failure to give jury instructions in accordance with Gould was error, and requested relief under G.L. c. 278, § 33E. We did not apply Gould retroactively, and we denied relief under c. 278, § 33E.

We have never given retroactive effect to Gould. This case requires us to decide whether the law as stated in Gould applies retroactively to the defendant's trial. If Gould is retroactive to any date before it was decided, it must be retroactive to all trials that took place on or after that date.

As the first step in our analysis, we consider whether Gould, in holding that the jury may consider a defendant's mental illness in determining whether a murder was committed with extreme atrocity or cruelty, announced a new rule. Prior to Gould, the court long had held that neither specific intent nor a knowledge of the nature of one's acts was necessary for conviction of murder with extreme atrocity or cruelty. In 1858, the Legislature classified the three types of murder in the first degree in language substantially the same as that now appearing in G.L. c. 265, § 1. See St.1858, c. 154, § 1. Two years later, this court held that proof of murder committed "with extreme atrocity or cruelty" did not require proof of premeditation. Commonwealth v. Desmarteau, 16 Gray 1, 9-10 (1860).

In Commonwealth v. Gilbert, 165 Mass. 45, 42 N.E. 336 (1895), the court considered in...