Com. v. Gagliardi

• Citation: 418 Mass. 562,638 N.E.2d 20
• Parties: COMMONWEALTH v. Philip J. GAGLIARDI, Sr.
• Decision Date: 09 January 1995
• Court: United States State Supreme Judicial Court of Massachusetts

Page 20

638 N.E.2d 20

418 Mass. 562

COMMONWEALTH v. Philip J. GAGLIARDI, Sr.

Supreme Judicial Court of Massachusetts Middlesex.

Argued March 8, 1994.

Decided Aug. 4, 1994.

Certiorari Denied Jan. 9, 1995.

See 115 S.Ct. 753.

Paul J. Haley, for defendant.

James W. Sahakian, Asst. Dist. Atty., for the Com.

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

LIACOS, Chief Justice.

The defendant appeals from the denial of his motion for a new trial following his conviction of murder in the second degree. On appeal, the defendant argues that the judge erred in denying that motion. The defendant repeats to us the arguments he put before the judge below. We affirm.

On April 5, 1984, after a jury trial in the Superior Court on an indictment charging him with murder in the first degree, the defendant was convicted of murder in the second degree. On April 10, 1984, the defendant filed a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). After that motion was allowed by the trial judge, the Commonwealth appealed. The Appeals Court affirmed the granting of the motion for a new trial. Commonwealth v. Gagliardi, 21 Mass.App.Ct. 439, 488 N.E.2d 10 (1986) (Gagliardi I ).

The defendant was retried before a jury in a trial presided over by another judge in the Superior Court. On October 30, 1987, the defendant again was convicted of murder in the second degree and was sentenced to life imprisonment at the Massachusetts Correctional Institution at Cedar Junction. The defendant appealed and was represented by new appellate counsel, who was not trial counsel at the second trial. After considering the numerous issues raised by the defendant, the Appeals Court affirmed the defendant's conviction on September 19, 1990. Commonwealth v. Gagliardi, 29 Mass.App.Ct. 225, 559 N.E.2d 1234 (1990) (Gagliardi II ). We denied the defendant's application for further appellate review. 408 Mass. 1103 (1990).

Represented by other counsel, the defendant, pursuant to rule 30(b), filed a motion for a new trial, accompanied by a sixty-five page memorandum of law dated November 20, 1992. The judge who considered the motion for a new trial had presided over the defendant's second trial. The judge denied the defendant's motion on waiver grounds without a hearing, relying on Commonwealth v. Watson, 409 Mass. 110, 112, 565 N.E.2d 408 (1991), and Commonwealth v. Sowell, 34 Mass.App.Ct. 229, 230, 609 N.E.2d 492 (1993). ¹

Again represented by new counsel, the defendant has appealed from the Superior Court judge's denial of his motion for a new trial. We granted the defendant's application for direct appellate review. We affirm. The judge having denied the motion for a new trial without considering the issues raised by the defendant, we need, in a noncapital case, to consider only those issues that have some constitutional basis, or which were not open to the defendant on direct appeal. See Commonwealth v. Curtis, 417 Mass. 619, 623-625, 632 N.E.2d 821 (1994).

1. Jury instructions on intoxication and malice aforethought. The first argument asserted by the defendant in his motion for a new trial was that the trial judge committed error amounting to a substantial risk of a miscarriage of justice in instructing the jury on the issue of intoxication as it relates to the mental element of the charge of murder, that is, the issue of the defendant's malice aforethought. See Commonwealth v. Sama, 411 Mass. 293, 298-299, 582 N.E.2d 498 (1991). The defendant also argues that his trial counsel's failure to object when the judge did not give the instruction requested on this issue, and his appellate counsel's failure to raise this issue on appeal both amounted to ineffective assistance of counsel.

Rule 30(b) provides that a "trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done." See Commonwealth v. Stewart, 383 Mass. 253, 257, 418 N.E.2d 1219 (1981). The decision whether to grant a new trial is left to the discretion of the judge unless the "original trial was infected with prejudicial constitutional error." Id., quoting Earl v. Commonwealth, 356 Mass. 181, 184, 248 N.E.2d 498 (1969). The denial of a motion for a new trial will not be reversed unless the defendant demonstrates that the decision denying a new trial, if not reversed, will result in "manifest injustice." Commonwealth v. Watson, 409 Mass. 110, 114, 565 N.E.2d 408 (1991).

In Watson, supra at 112, 565 N.E.2d 408, we described the waiver rule, which prevents the defendant from raising issues in a motion for new trial that he could have raised during a direct appeal:

" ' "[A] motion for new trial may not be used as a vehicle to compel ... review and [consideration of] questions of law," on which a defendant has had his day in an appellate court, or [on which he has] forgone that opportunity. Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973). While a judge does have the discretion to rehear such questions, this court has recommended restricting the exercise of that power to "those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Harrington, 379 Mass. 446, 449 (1980).' Fogarty v. Commonwealth, 406 Mass. 103, 107-108 (1989). The rule of waiver 'applies equally to constitutional claims which could have been raised, but were not raised' on direct appeal or in a prior motion for a new trial. Commonwealth v. Deeran, 397 Mass. 136, 139 (1986)."

The defendant has the burden of demonstrating why "this is a truly extraordinary case where consideration of the merits of [his motion for a new trial] is required." Watson, supra 409 Mass. at 114, 565 N.E.2d 408.

The defendant asserts that there is no waiver issue here because his trial counsel requested an instruction consistent with the holding in Commonwealth v. Grey, 399 Mass. 469, 471-472, 505 N.E.2d 171 (1987), but failed to object when that instruction was not given. The defendant argues that there is no issue of the retroactivity of Commonwealth v. Sama, supra 411 Mass. at 299, 582 N.E.2d 498, because the issue was brought up at trial through counsel's request for an instruction consistent with Grey.

Commonwealth v. Grey, 399 Mass. 469, 505 N.E.2d 171 (1987), was decided before the defendant's second trial, and Commonwealth v. Sama, 411 Mass. 293, 582 N.E.2d 498 (1991), was decided after the defendant's appeal from his conviction was decided. As was the case with the rule announced in Grey, supra 399 Mass. at 471-472, 505 N.E.2d 171, the rule announced in Sama, supra 411 Mass. at 299, 582 N.E.2d 498, will not be applied retroactively when raised in a collateral appeal. See Commonwealth v. Bray, 407 Mass. 296, 297, 303, 553 N.E.2d 538 (1990). See also Commonwealth v. Robinson, 408 Mass. 245, 248 & n. 3, 557 N.E.2d 752 (1990). The trial judge did not err in denying the defendant's motion for a new trial based on this ground. ²

2. Ineffective assistance of trial counsel and appellate counsel. The defendant makes the argument that several failures by trial counsel, not raised on appeal by appellate counsel, constituted ineffective assistance of both. These are (1) failure to object to the judge's instructions on intoxication and malice aforethought (discussed above) and the judge's instruction on reasonable doubt (discussed separately below); (2) failure to request an alibi instruction; and (3) failure to request reopening of the suppression hearing.

As with the argument regarding the judge's instructions on intoxication and malice aforethought, the defendant has failed to demonstrate why this is an extraordinary case in which we should not apply the waiver rule to the issue of ineffective assistance of counsel. The attempt to argue failure of appellate counsel is meritless. Indeed, it seems to us that the defendant has already had his day in court as to these issues.

We already have commented on argument (1) in the preceding section, and here we comment briefly on arguments (2) and (3). As for argument (2), the failure to request an alibi instruction, we note that the defendant raised this issue in his brief on direct appeal, although he did not use the term "alibi." Instead, he asserted the failure of the trial judge to instruct on "his [the defendant's] theory of the case," and, in doing so, discussed the evidence at trial which the defendant now points to as supporting an "alibi." The Appeals Court addressed this issue thoroughly, and we agree with its conclusion that there was no reversible error on this point. Gagliardi II, supra 29 Mass.App.Ct. at 242-243, 559 N.E.2d 1234.

As for argument (3), the failure to request reopening of the suppression hearing, we note that the defendant argued to the Appeals Court, in the section of his brief discussing the late production or nonproduction of evidence, that the case should be remanded for a rehearing of the suppression hearing. The Appeals Court rejected this argument, a conclusion we also support. Id. at 232 n. 5, 559 N.E.2d 1234.

We conclude that the defendant either has had his day in appellate court or has made no persuasive argument that (1) the judge committed reversible error in the instructions as to intoxication and malice aforethought, (2) or as to refusal to give an alibi instruction, and (3) or in declining to order the reopening of the suppression hearing. We discuss the failure to object to the reasonable doubt instruction below.

3. Instruction on reasonable doubt. The defendant's final argument in favor of granting his motion for a new trial is that the judge's instructions on reasonable doubt were constitutionally defective. The defendant cites to us the recent decision of the United States Supreme Court in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). We choose not to apply the waiver rule of Watson, supra 409 Mass. at 112, 565 N.E.2d 408, because...