Com. v. Festa

• Decision Date: 22 March 1983
• Citation: 447 N.E.2d 1,388 Mass. 513
• Parties: COMMONWEALTH v. John L. FESTA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

447 N.E.2d 1

388 Mass. 513

COMMONWEALTH v. John L. FESTA.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 6, 1982.

Decided March 22, 1983.

Donald A. Harwood, for defendant.

Pamela L. Hunt, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

The defendant appeals ¹ from the denial of his second motion for a new trial. ² See Commonwealth v. Festa, 369 Mass. 419, 341 N.E.2d 276 (1976). Festa alleges error in the jury instructions and claims that he was denied the effective assistance of counsel. On appeal, Festa asks us again to consider his case pursuant to G.L. c. 278, § 33E, and grant him a new trial or direct the entry of a verdict of a lesser degree of guilt. ³ We affirm the order denying the second motion for a new trial.

Festa argues that the instructions by the judge pertaining to malice were prejudicially erroneous in light of decisions of this court and the Supreme Court of the United States, issued after the defendant's trial, direct appeal, or his first motion for a new trial. He claims that conflicting instructions on the effect to be given the use of a deadly weapon require reversal. Specifically, he asserts that in one portion of the supplemental instructions, the judge told the jurors that "[w]hen the killing is caused by the intentional use of a deadly weapon there arises a presumption of malice, at least in a situation where it is plain that the defendant had the victim in sight." However, in his main instruction, the judge had already told the jurors that they could "infer malice from the use of a deadly weapon, such as a revolver, at least in the situation where the victim is in the view of the person charged." ⁴ The defendant asserts that the word "presumption" in the charge automatically requires reversal of his conviction. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Commonwealth v. Callahan, 380 Mass. 821, Mass.Adv.Sh. (1980) 1411, 406 N.E.2d 385. Since no objection to the charge was lodged at trial, the question is whether the instructions, read as a whole, created a substantial likelihood of a miscarriage of justice. Commonwealth v. Tavares, 385 Mass. 140, 148, 430 N.E.2d 1198 (1982). We conclude that the charge did not create a substantial likelihood of a miscarriage of justice.

On appeal, we "view the charge in its entirety since the adequacy of instructions must be determined in light of their overall impact on the jury." Commonwealth v. Sellon, 380 Mass. 220, 231-232, 402 N.E.2d 1329 (1980). "The fact that on [one occasion] the judge lapsed into the use of the word 'presumption' when he obviously meant 'inference' [does] not detract from the otherwise thorough, accurate, and precise instructions on [malice]." Commonwealth v. McInerney, 373 Mass. 136, 150, 365 N.E.2d 815 (1977). As we read the charge, it did not impose on the defendant the duty to disprove malice.

Further, Festa's case was tried and argued by both parties solely on the issue of the identity of the perpetrator. In such circumstances a flaw in the malice instructions is less significant. "[T]he use of the word presumption in the malice instructions [has] no bearing on [Festa's] guilt, and ... the instructions [do] not create a danger of grave prejudice or a substantial likelihood of a miscarriage of justice." Commonwealth v. Pisa, 384 Mass. 362, ---, Mass.Adv.Sh. (1981) 1927, 1929, 425 N.E.2d 290. Festa's claim therefore fails. See Commonwealth v. Greco, --- Mass. ---, Mass.Adv.Sh. (1981) 1939, 425 N.E.2d 287; Commonwealth v. Tameleo, --- Mass. --- , --- - ---, Mass.Adv.Sh. (1981) 1934, 1935-1936, 425 N.E.2d 287; Commonwealth v. Lee, 383 Mass. 507, ---, 419 N.E.2d 1378 (1981). See also Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983).

In this court Festa also claims error in the instructions because the judge failed to charge on provocation. Festa failed to raise this issue at trial or on his first appeal. "Issues not raised at trial or pursued in available appellate proceedings are waived." Commonwealth v. Pisa, 384 Mass. 362, ---, Mass.Adv.Sh. (1981) 1927, 1931, 425 N.E.2d 290. A motion for new trial may not be used as "a vehicle to compel a trial judge to review and reconsider questions of law ... which could have been raised at the trial and in appellate review after trial but which were not so raised." Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973). ⁵

In this appeal, Festa further alleges he was denied the effective assistance of counsel since his counsel failed to move to suppress statements Festa made at the scene of the homicide, on the ground that the statements were involuntary because Festa was intoxicated and in shock. ⁶ The defendant concedes that there was no police coercion, and the defendant does not claim any physical or psychological coercion by civilians. Cf. Commonwealth v. Mahnke, 368 Mass. 662, 679-681, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). ⁷ The short answer is that the record does not disclose any basis to suppress the statements, and the authorities cited by the defendant do not support his claim. Since there is no apparent basis for the filing of a motion to suppress, there was no "serious incompetency, inefficiency, or inattention of counsel ... falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974).

The defendant alleges that his counsel was ineffective because in his summation his counsel stated that "the defendant didn't present much of a case here." That statement, however, must be viewed in context. Festa's attorney went on to point out that Festa's "statement was already in, what he told the police, so that covers that part of it." He then went on to criticize the Commonwealth for not offering in evidence the victim's statement exculpating the defendant. ⁸ Considered in the context of the closing argument, this sentence does not demonstrate that the defendant had ineffective assistance of counsel. Compare Commonwealth v. Street, 388 Mass. 281, 446 N.E.2d 670 (1983); Commonwealth v. Westmoreland, 388 Mass. 269, 446 N.E.2d 663 (1983).

Consistent with our duty under § 33E, we reviewed the entire case on the law and the evidence and concluded that the interests of justice did not require a new trial or the entry of a verdict of a lesser degree of guilt than that found by the jury. Commonwealth v. Festa, 369 Mass. 419, 420, 341 N.E.2d 276 (1976). ⁹ The defendant requests that we reconsider his case pursuant to G.L. c. 278, § 33E, and either grant him a new trial or reduce the verdict of murder in the second degree to manslaughter. We again decline to exercise our power under § 33E in favor of the defendant.

Order denying motion for new trial affirmed.

1 The record contains the first motion for a new trial and the judge's findings and rulings. No appeal from the denial of that motion was perfected. In this appeal, the issues raised by the first motion have not been briefed or argued. We deem Festa's failure to brief these issues as a waiver. An "appellate court need not pass upon questions or issues not argued in the brief." Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 919 (1975). See Commonwealth v. Cundriff, 382 Mass. 137, ---, --- n. 22, 415 N.E.2d 172 (1980), cert. denied. 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981).

2 Since Festa was convicted of murder in the second degree, leave of the single justice is not required to appeal the denial of his motion. Commonwealth v. Zezima, 387 Mass. 748, 749, 443 N.E.2d 1282 (1982). Greene v. Commonwealth, 385 Mass. 1008, 1009, 432 N.E.2d 706 (1982). Leaster v. Commonwealth, 385 Mass. 547, 549, 432 N.E.2d 708 (1982).

3 Since Festa's offense "resulting in a second degree murder conviction upon an indictment in the first degree was committed before July 1, 1979," he was entitled to G.L. c. 278, § 33E, review. Commonwealth v. Davis, 380 Mass. 1, ---, 401 N.E.2d 811 (1980).

4 Festa does not challenge the general instructions on the Commonwealth's burden of proof and the presumption of innocence.

5 Provocation as a mitigating circumstance was not adequately raised in the evidence, and the judge indicated he was submitting voluntary manslaughter to the jury out of an abundance of caution. Further, "[t]he repeated failures of counsel [at trial, on appeal, and in the two motions for new trial] to raise the point suggest that it was not thought to be critical." Commonwealth v. Grace, 381 Mass. 753, ---, 412 N.E.2d 354 (1980). We agree with counsel's prior assessment.

6 At the scene, the defendant placed a pillow under the victim's head and said, "You'll be all right. ...