Com. v. Curtis

• Decision Date: 02 May 1994
• Citation: 417 Mass. 619,632 N.E.2d 821
• Parties: COMMONWEALTH v. Daniel J. CURTIS (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 821

632 N.E.2d 821

417 Mass. 619

COMMONWEALTH v. Daniel J. CURTIS (and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Jan. 3, 1994.

Decided May 2, 1994.

Wendy Sibbison, Greenfield, for Daniel J. Curtis.

John A. Amabile, Boston, for Mark J. Giglio.

Paul B. Linn, Asst. Dist. Atty., for Com.

Before WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

On July 14, 1980, Michael Robinson was fatally injured in a senseless attack in East Boston. On December 30, 1980, a jury found each defendant guilty of murder in the second degree. This court affirmed those convictions on April 7, 1983. Commonwealth v. Curtis, 388 Mass. 637, 448 N.E.2d 345 (1983). On June 28, 1989, the defendants moved for a new trial on their own. Counsel was appointed. Amended motions for a new trial were filed, and on June 11, 1992, a judge other than the trial judge, who had retired, denied the motions and filed an explanatory memorandum. We granted Curtis's application for direct appellate review and transferred Giglio's appeal here on our own motion.

Each issue that the defendants argue here in support of their challenges to the denial of their new trial motions could have been, but was not, argued on their direct appeals. The motion judge considered and rejected each argument on its merits. In this opinion, before discussing the defendants' various claims, we shall discuss the standard of review that an appellate court generally should apply in a postconviction, collateral attack on convictions such as are before us. But first, we set forth the basic facts of the case, borrowing heavily from our earlier opinion but interrupting that narrative at one point to provide facts bearing on issues argued in this appeal.

"On the evening of July 14, 1980, Michael Robinson, a sailor assigned to the U.S.S. Edson, a ship under repair in the General Shipyard in East Boston, was beaten by a group of East Boston youths on Border Street in a brawl between some sailors and the youths. Robinson died eight days later from head injuries inflicted in that beating. The incident which precipitated the fray is a matter of dispute. Lenny T. Curtis, the brother of the defendant, Daniel Curtis, testified at the trial that on that evening he had been jostled and struck by one of the black sailors sitting outside the General Shipyard fence when he refused to give him a cigarette. A sailor who testified stated that Curtis walked by undisturbed by the sailors.

"Curtis testified that after this alleged attack he told his friend, Eddie Colon, to '[g]o get my two brothers.' Colon rode his bicycle toward the Central Square area of East Boston and saw the defendant, Mark Giglio, and two other friends, Michael Brulport and Joseph DeDominicis. Colon told them that 'Lennie needs some help down there. Some sailors [are] bothering him.' The four youths proceeded back to the place where the sailors were sitting.

"The youths approached the sailors and began making abusive comments. [Footnote omitted.] Some white sailors, including Michael Robinson, joined the other sailors and told the youths to leave the sailors alone. At this point, a red Cadillac automobile driven by Louis Lepore arrived at the scene and stopped. Daniel Curtis was a passenger in this car. Giglio ran over to the car and told Curtis that his brother Lenny Curtis had been beaten 'by those sailors over there.' According to Giglio's testimony, some of the youths then ran over to Lepore's car and began taking bats from the trunk.

"Sensing imminent trouble, the sailors began walking back to the shipyard. A gang of youths began chasing them. While fleeing, Michael Robinson either tripped and fell or was pushed to the ground. Two sailors, Seaman Tony Webb and Petty Officer Rickie Brandford, testified that they saw a number of the youths attack Robinson with baseball bats and a bottle. During the attack, Seaman Webb concentrated on one assailant. Webb later identified Daniel Curtis as this assailant from a police photo identification book, and subsequently repeated this identification at a District Court hearing, and at the trial. Eddie Colon, who had originally summoned the other youths, testified that he saw Mark Giglio strike Robinson with a bottle while Robinson was on the ground." Commonwealth v. Curtis, supra at 639-640, 448 N.E.2d 345.

Lenny Curtis testified that, when his brother, the defendant Daniel Curtis, went toward Robinson, Robinson "had a bottle in his hand raised up, and my brother went towards him, and Mr. Robinson was ready to hit my brother." Robinson swung the bottle at Curtis, who ducked. "[M]y brother came up with a punch" and backed off. The defendant Giglio testified that the group he was with advanced toward the sailors before Giglio punched Robinson in the face and ran away. He said he only hit Robinson with a fist.

"After attacking Robinson, the youths retreated and Webb and Brandford returned to help Robinson. The sailors found Robinson unconscious and bleeding from his head.... [T]he chief resident of neurosurgery [at Massachusetts General Hospital] ... testified that the victim had sustained severe head injuries resulting in a minimum of ten fractures which were caused by at least five 'very considerable' blows. The object that caused the injuries, the doctor stated, 'was a blunt instrument wielded with an awful lot of force ... many times.' These injuries, he stated, were consistent with those that could be inflicted with a baseball bat or a full bottle." Commonwealth v. Curtis, supra at 640, 448 N.E.2d 345.

1. Because the defendants' motions for a new trial were filed many years after the trial, presenting issues that could have been raised during their direct appeals, and because the Commonwealth may not be able to reassemble its case against the defendants and, even if it could, witnesses' memories would at best be considerably challenged, we are prompted to discuss and reassess the standards that we should apply in reviewing non-constitutionally based issues of the type now argued to us. The desirability of finality in the adjudication of cases and the Commonwealth's interest in the fair and efficient administration of justice are factors to be considered along with the ever-present concern that justice not miscarry for the defendant. Our attention here is on the denial of a new trial motion filed after a conviction has received appellate review, and not with new trial motions considered before a conviction has been reviewed.

In direct review in a noncapital case, ² an appellate court considers an issue not properly preserved for appellate review only on the "substantial risk of a miscarriage of justice" standard first expressed in those words in Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). Once the final decision on direct review has been made, any further challenge to the conviction must be made on a motion for a new trial. See Mass.R.Crim.P. 30, 378 Mass. 900 (1979). ³ Any non-constitutionally based issue that could have been argued on direct appeal, and was not, may not be argued on appeal from the denial of a motion for a new trial unless the motion judge elected to consider the merits of the issue. ⁴ It has been a principle of long standing, however, that any issue that the motion judge considered on its substantive merits on a motion for a new trial and decided against a defendant will come before an appellate court as it would have if it had been raised on direct appeal. See Commonwealth v. McGrath, 361 Mass. 431, 435 n. 2, 280 N.E.2d 681 (1972); Commonwealth v. Blondin, 324 Mass. 564, 567, 87 N.E.2d 455 (1949), cert. denied, 339 U.S. 984, 70 S.Ct. 234, 94 L.Ed. 1387 (1950); Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 18-19, 490 N.E.2d 1195 (1986). Until the Freeman case adopted an alternative standard of review, issues resuscitated by a motion judge could only be considered as if appellate rights had been fully preserved on that issue in the trial court. After the Freeman decision, an alternative exists.

We have not considered, since the Freeman case was decided, whether a defendant should be entitled to appellate review of an issue on a more favorable standard than that expressed in the Freeman case if, in a collateral attack on the conviction, the judge opened up the issue in denying a motion for a new trial but appellate review of that issue had not been preserved at trial. In other words, does a defendant who would have received review of an issue only on the Freeman standard, if he had raised it on direct review, receive the benefit of a more favorable standard on review (that is, as if his appellate rights had been preserved), if the motion judge considered that issue on the merits in denying the motion for a new trial? We think not.

We conclude that the proper standard for review in an appellate court of an issue considered on its merits by a new trial motion judge, after there has been appellate review of the conviction, is the same standard that we have said that motion judges should use in deciding whether to exercise their power of resuscitation. "The indiscriminate exercise of this power effectively circumvents the long-standing rule that issues not raised at trial or pursued in available appellate proceedings are treated as waived. Commonwealth v. Grace, 376 Mass. 499, 500, 381 N.E.2d 139 (1978). Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973), and cases cited. The trial judge's discretionary power to give relief from such a waiver by permitting such issues to be raised for the first time by a motion for a new trial should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Harrington, 379 Mass. 446, 449, 399 N.E.2d 475 (1980). If the motion judge was also the trial judge, we will give special consideration to that judge's decision to open an...