Com. v. Doherty

• Decision Date: 12 September 1991
• Citation: 578 N.E.2d 411,411 Mass. 95
• Parties: COMMONWEALTH v. Stephen DOHERTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 411

578 N.E.2d 411

411 Mass. 95

COMMONWEALTH v. Stephen DOHERTY.

Supreme Judicial Court of Massachusetts Norfolk.

Argued May 7, 1991.

Decided Sept. 12, 1991.

Robert L. Sheketoff (Anthony M. Cardinale with him), Boston, for defendant.

James Lang, Asst. Dist. Atty., for Com.

Stephen Doherty, pro se, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

On August 7, 1979, this court affirmed the conviction of Stephen Doherty (defendant), John Campbell, Jr., and Arthur Keigney of the November 25, 1976, murder in the first degree of Robert A. Perrotta (victim) in his cell at the Massachusetts Correctional Institution at Walpole. Commonwealth v. Campbell, 378 Mass. 680, 393 N.E.2d 820 (1979). After that date, but before the Supreme Court's decision in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), the defendant on three occasions unsuccessfully sought postconviction relief by way of motions for a new trial and unsuccessfully sought habeas corpus relief in the Federal courts. See Campbell v. Fair, 838 F.2d 1 (1st Cir.), cert. denied, 488 U.S. 847, 109 S.Ct. 126, 102 L.Ed.2d 100 (1988).

We deal here with the defendant's fourth motion for a new trial. A judge of the Superior Court denied that motion on the ground that "[t]he issues being presently raised by the defendant have been hashed and re-hashed by state and federal trial courts and appellate courts over a period of some thirteen years." He denied the motion for a new trial because "it presents no issue which has not already been adjudicated."

A single justice of this court, acting under the "gatekeeper" provision of G.L. c. 278, § 33E (1990 ed.), allowed the defendant to appeal to this court from the rejection of his contention that the jury charge contained constitutionally infirm language concerning presumptions of malice and intent. ¹ We conclude that the defendant has not waived or otherwise lost his right to a determination on the merits of his challenge to the jury instructions, but that he is not entitled to a new trial.

The evidence justifying the defendant's conviction is set forth in our opinion on the defendant's appeal. Commonwealth v. Campbell, supra, 378 Mass. at 682-685 393 N.E.2d 820. To make the issues now before us understandable, we need only summarize the general circumstances of the Commonwealth's case. The Commonwealth sought to prove, based primarily on the testimony of an inmate named Thomas Carden, that the defendants Campbell and Keigney killed the victim in his cell by strangulation, after tearing his penis from his body. This court characterized the evidence against these two defendants as "somewhat thin" but sufficient to warrant submitting the case to the jury. Id. at 688, 393 N.E.2d 820. The case against the defendant, called "a somewhat closer question," was based on the theory that the defendant had acted as a lookout for Campbell and Keigney. Id. at 688-689, 393 N.E.2d 820. ²

1. We reject the Commonwealth's claim, accepted by the motion judge, that the defendant has already had appellate review of his challenge to the jury instructions. We also reject the Commonwealth's argument that the defendant has waived his right to such a review. The defendant relies on principles expressed in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 1979), decided on June 18, 1979, after oral argument of his appeal but before it was decided on August 7, 1979. This court's opinion on the defendant's appeal did not discuss the jury instructions in light of the Sandstrom opinion. The significant force of the defendant's argument arises not from the Sandstrom case itself, however, but from the standard for testing the consequences of a Sandstrom violation that was first expressed in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). In deciding what a reasonable juror could have understood, a constitutionally infirm jury instruction containing impermissible burden-shifting language is not cured by "[l]anguage that merely contradicts and does not explain [the] constitutionally infirm instruction." Id. at 322, 105 S.Ct. at 1975.

The importance of Francis v. Franklin to the defendant's argument is pointed up significantly in this Commonwealth by the differing results in Commonwealth v. Repoza, 382 Mass. 119, 414 N.E.2d 591 (1980) (Repoza I ), and in Commonwealth v. Repoza, 400 Mass. 516, 510 N.E.2d 755 (1987) (Repoza II ). In Repoza I, on our own motion, we reviewed the jury instructions under G.L. c. 278, § 33E, and concluded that the instruction that the intentional use of a deadly weapon created a presumption of malice violated Sandstrom principles. Repoza I, supra, 382 Mass. at 132-133, 414 N.E.2d 591. We concluded, however, that the judge's error was "vitiated by his repeated and careful instructions reinforcing the principle that the burden of proof on every essential element of the crime invariably remains with the Commonwealth." Id. at 134, 414 N.E.2d 591. After the Supreme Court decided Francis v. Franklin, we considered the Sandstrom issue again in Repoza's challenge to the denial of his postappeal motion for a new trial. We ordered a new trial (Repoza II, supra, 400 Mass. at 522, 510 N.E.2d 755), concluding that the "saving" language of the charge, which we had identified in Repoza I, did not meet the standard of Francis v. Franklin. It "did not cure the possibility that, '[i]n light of the instructions on intent given in this case, a reasonable juror could thus have thought that, although intent must be proved beyond a reasonable doubt, proof of [stabbing the victim] and its ordinary consequences constituted proof of intent beyond a reasonable doubt unless the defendant persuaded the jury otherwise.' Francis, supra [471 U.S.] at 319 . Clearly, the instructions at trial do not meet the requirements of Francis." Repoza II, supra, 400 Mass. at 521-522, 510 N.E.2d 755. See Commonwealth v. Sires, 405 Mass. 598, 600-601, 542 N.E.2d 580 (1989), applying Francis v. Franklin to a charge given prior to the Sandstrom opinion and ordering a new trial, years after an unsuccessful appeal of a conviction of murder in the first degree in Commonwealth v. Sires, 370 Mass. 541, 350 N.E.2d 460 (1976).

The defendant argues that his situation is substantially the same as that of Repoza. Repoza was not denied postappeal relief on the ground that he should have raised the point earlier, even though this court had identified and discussed a Sandstrom error on Repoza's appeal. ³ Although there are differences, as we shall see, between Repoza's case and this one in the nature and significance of the alleged errors in the jury instructions, Repoza II demonstrates the significance of Francis v. Franklin and shows why we must conclude that the defendant has not waived his right to argue the alleged Sandstrom error as reinforced by the principles expressed in Francis v. Franklin, unless for some reason he has waived that right by inaction after Francis v. Franklin was decided.

The defendant's March, 1989, motion for a new trial for the first time raised the Sandstrom issue in the context of Francis v. Franklin. The Commonwealth does not argue that the delay in filing that motion following the decision in Francis v. Franklin warrants a ruling that the defendant waived his right to advance the argument when he did. No case of this court has held that a delay of that sort results in the loss of rights. See Commonwealth v. Burkett, 396 Mass. 509, 512, 487 N.E.2d 478 (1986). We must, therefore, consider the merits of the defendant's objections to the jury charge.

2. We start with the language contained in the following paragraph, with the assertedly improper language appearing in italics:

"Our Supreme Judicial Court has said that every unlawful motive may be inferred from an unlawful killing and if there are no circumstances tending to show justification or excuse, there is nothing to rebut the natural presumption of malice. And they go on to say that malice does not necessarily imply ill will towards the person killed but it has a more comprehensive meaning, including any intent to inflict injury upon another without legal excuse. So if a defendant or defendants in this case intentionally, unlawfully killed the deceased, malice is presumed in this case."

The question is whether a reasonable juror could have understood the challenged language to direct him or her in the circumstances of this case to accept or presume conclusively the existence of malice solely from the fact that there was a killing. See Francis v. Franklin, supra, 471 U.S. at 325, 105 S.Ct. at 1977. We think not.

The trial judge summed up his statements in the last sentence of the quoted paragraph, explaining his earlier ones. He says that, if the killing was done intentionally and unlawfully, "malice is presumed in this case." Because there was no evidence warranting a manslaughter verdict, the judge's conclusional statement was correct in this case. In other words, because there was no basis for a manslaughter verdict, if the jury were to find that the killing was intentional and unlawful, the killing was committed with malice as a matter of law. "The jury in this case reasonably could not have understood from the judge's instructions that, if they found that the defendant killed the victim, and if there was no evidence of justification or excuse, either malice had been established conclusively or the defendant had the burden to prove lack of malice. The jury reasonably could have understood the statement in question only to refer to an intentional killing. An intentional killing without justification or excuse is indeed an unlawful killing with malice aforethought and is murder." Commonwealth v. Adrey, 397 Mass. 751, 755, 493 N.E.2d 875 (1986).

The word "presumed" in the charge does not have an unconstitutional quality in a Sandstrom sense because,...