Com. v. Colon-Cruz

Decision Date18 October 1984
Docket NumberCOLON-CRUZ
Citation393 Mass. 150,470 N.E.2d 116
Parties, 53 USLW 2259 COMMONWEALTH v. Abimael1 (and two companion cases 2 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Donald D. Deren, Dudley, for Miguel Angel Rosado.

Dennis J. Brennan, Worcester, for Jose Anibal Colon.

Milton H. Raphaelson, Worcester, for Abimael Colon-Cruz.

Daniel F. Toomey, Asst. Dist. Atty. (Harry D. Quick, III, Asst. Dist. Atty. with him), for the Commonwealth.

William D. Delahunt, Dist. Atty. for the Norfolk Dist., amicus curiae.

Patricia A. O'Neill, Boston, and Richard Zorza, Brookline, for Massachusetts Defenders Committee, amicus curiae.

Newman Flanagan, Dist. Atty., for the Suffolk Dist., & others, amici curiae.

Francis X. Bellotti, Atty. Gen., Barbara A.H. Smith and Paul A. Lazour, Asst. Attys. Gen., for the Atty. Gen., amicus curiae.

John A. Perkins, Allan van Gestel, Margaret R. Hinkle and Paul E. Nemser, Boston, for Boston Bar Ass'n, amicus curiae.

John Reinstein, Max D. Stern, Ann Lambert Greenblatt, Alan J. Rom, Geraldine S. Hines, Boston, and Judith Farris Bowman, Cambridge, for Massachusetts Citizens Against the Death Penalty & others, amici curiae.


LIACOS, Justice.

In District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980), this court declared unconstitutional the capital punishment statute, c. 488 of the Acts of 1979. The court held that the penalty of death was impermissibly cruel under art. 26 of the Declaration of Rights of the Massachusetts Constitution. 3 That article then provided, in its entirety: "No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments."

On November 2, 1982, the voters approved a constitutional amendment which added a second and third sentence to art. 26: "No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death." Art. 116 of the Amendments to the Massachusetts Constitution. This amendment had been adopted by joint sessions of the General Court in the years 1980 and 1982.

On December 15, 1982, both houses of the General Court enacted c. 554 of the Acts of 1982, providing for capital punishment in certain cases of murder in the first degree. The act was approved by the Governor on December 22, 1982, and took effect on January 1, 1983, to apply to offenses committed on or after the effective date. St.1982, c. 554, § 8.

On the evening of February 26, 1983, State trooper George L. Hanna was found on Route 20 in Auburn, injured by multiple gunshot wounds. He was taken to St. Vincent Hospital in Worcester, where he died later that evening as a result of the wounds. Complaints accusing the three defendants of the murder of Hanna issued shortly thereafter from the Worcester District Court. On April 4, 1983, the Commonwealth filed notice in the Worcester District Court that it would present evidence in accordance with the provisions of c. 554 of the Acts of 1982, and that the defendants "may suffer the punishment of death" pursuant to the procedures provided for by that chapter. In June, 1983, a Worcester County grand jury indicted each of the defendants for Hanna's murder. The Commonwealth has indicated that these indictments will be tried separately. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

On November 15, 1983, after hearings on a series of pretrial motions in the Superior Court, the Commonwealth moved, in each case, to report to the Appeals Court, pursuant to Mass.R.Crim.P. 34, 378 Mass. 905 (1979), two questions of law:

"A. Whether G.L. c. 265, S. 2 and G.L. c. 279, Sections 4, 57-71, as most recently amended by St.1982, c. 554, S. 3-8, is in compliance with the Constitution of the United States.

"B. Whether G.L. c. 265, S. 2 and G.L. c. 279, Sections 4, 57-71, as most recently amended by St.1982, c. 554, S. 3-8, is in compliance with the Constitution of the Commonwealth of Massachusetts."

The Superior Court judge allowed the motion in each case over the defendants' objections. From the evidence which he had received in connection with the pretrial motions and from the notice filed by the Commonwealth, the judge found that each defendant, if convicted, might be sentenced to death. He stated in each report that the question of the constitutionality of the death penalty statute was "so important ... as to require the decision of the Appeals Court." Mass.R.Crim.P. 34. After the reports were entered in the Appeals Court, the Commonwealth applied to this court for direct appellate review, and we allowed the application. 4 We answer question B, "No," on the ground that the statutory sections referred to in the question violate art. 12 of the Declaration of Rights of the Massachusetts Constitution by impermissibly burdening a defendant's right against self-incrimination and right to trial by jury. In view of our answer to question B, we need not answer question A. 5 The propriety of deciding the constitutionality of the questioned provisions at this time. In our order allowing the application for direct appellate review, we noted that "[b]riefs may discuss the question whether this court should at this time decide any issue concerning the constitutionality of G.L. c. 265, § 2, and G.L. c. 279, §§ 4, 57-71, as amended by St.1982, c. 554." It is in this court's discretion to postpone decision of issues reported before trial until appellate review after trial, "where such action seems more appropriate as a matter of judicial administration." Commonwealth v. Benjamin, 358 Mass. 672, 673 n. 1, 266 N.E.2d 662 (1971) (court, however, answered the questions reported). We recently discharged a report raising several constitutional questions because of our view that there was a preliminary question, not briefed, which should be decided before any constitutional issue was reached. Commonwealth v. Paasche, 391 Mass. 18, 21-22, 459 N.E.2d 1223 (1984). There we stated that we do not decide constitutional questions unless they necessarily must be reached. Id. at 21, 459 N.E.2d 1223. 6

The parties have briefed and argued the question whether we should discharge the reports without decision. Both the Commonwealth and the defendants urge us to decide the reported questions now, in so far as they concern the facial validity of the provisions at issue. 7 Although the defendants opposed the motions for report below because of the delay which would be occasioned in the commencement of their trials, their position now is that, since their trials already have been delayed by the reports, we should not render that delay useless by discharging the reported questions without decision.

"Interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision, and that subsequent proceedings in the trial court will be substantially facilitated by so doing." Commonwealth v. Henry's Drywall Co., 362 Mass. 552, 557, 289 N.E.2d 852 (1972), quoting John Gilbert Jr. Co. v. C.M. Fauci Co., 309 Mass. 271, 273, 34 N.E.2d 685 (1941). Interlocutory reports, however, may be appropriate when the alternative is a prolonged, expensive, involved, or unduly burdensome trial. See Commonwealth v. Cavanaugh, 366 Mass. 277, 279, 317 N.E.2d 480 (1974).

We believe that the present case meets the criteria of appropriateness for an interlocutory report. The question of the constitutionality of the new death penalty legislation is one of substantial significance; indeed, it is one of public importance. See Commonwealth v. Haddad, 364 Mass. 795, 797, 308 N.E.2d 899 (1974). It is true that, if we declined to decide either of the reported questions at this stage of the proceedings, we might not have to decide them with respect to these three defendants. See District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 673, 411 N.E.2d 1274 (1980) (Wilkins, J., concurring). However, if we waited to decide the constitutionality of the death penalty legislation until the question had to be answered, the consequence would be prolonged, expensive, involved, and unduly burdensome trials 8 for both the Commonwealth and the defense, not only in the case of each of these defendants, but also in every case arising in the meantime where the Commonwealth sought the death penalty, regardless of the eventual outcome of the case. 9 Whether or not the constitutionality of the death penalty legislation would have been a material question in the ultimate decision in the case of any particular defendant, proceedings in the trial court in all cases where the death penalty would have been sought will be substantially facilitated by our entertaining the interlocutory reports.

As the Commonwealth points out, by deciding as we do in the context of a pretrial report rather than after a sentence of death has been imposed, we spare a defendant the hardships which inevitably attend incarceration pending execution of a death sentence. See District Attorney for the Suffolk Dist. v. Watson, supra at 664-665, 411 N.E.2d 1274. See also id. at 677, 678-679 n. 5, 681, 684-685, 411 N.E.2d 1274 (Liacos, J., concurring). We also avoid the necessity of that defendant's having to be resentenced or perhaps even retried.

Finally, it is to be remembered that in District Attorney for the Suffolk Dist. v. Watson, supra, we decided the constitutionality of this capital punishment statute's predecessor in a proceeding begun by the district attorney by means of a complaint for a declaratory judgment. Four men who were awaiting trial...

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