Com. v. Gilbert

• Citation: 849 N.E.2d 1246,447 Mass. 161
• Parties: COMMONWEALTH v. Preston Lee GILBERT.
• Decision Date: 05 July 2006
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1246

849 N.E.2d 1246

447 Mass. 161

COMMONWEALTH v. Preston Lee GILBERT.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 6, 2006.

Decided July 5, 2006.

Richard J. Fallon, West Acton, for the defendant.

Peter D'Angelo, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

At issue in this appeal is whether a judge in the trial court, presented with a postappeal motion for a new trial filed pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), has the authority to order the entry of a finding of guilty of a lesser offense than found by the jury under Mass. R.Crim. P. 25(b)(2), 378 Mass. 896 (1979), rather than ordering a new trial. We conclude that he does. We affirm the judge's order setting aside the verdict of murder in the first degree and reducing the verdict to murder in the second degree.

1. Background. After a jury trial in 1992, the defendant was convicted of murder in the first degree on a theory of deliberate premeditation. Following plenary review under G.L. c. 278, § 33E, we affirmed the conviction and rejected the defendant's request for a new trial or the entry of a lesser degree of guilt. Commonwealth v. Gilbert, 423 Mass. 863, 873, 673 N.E.2d 46 (1996). Some twelve years after the homicide,¹ the defendant filed a motion in the Superior Court, pursuant to Mass. R.Crim. P. 30(b),² seeking a new trial on the ground that the jury instructions on premeditation and malice were flawed.³ In a carefully reasoned memorandum and decision, a judge other than the original trial judge⁴ concluded that the instructions were erroneous, and that the erroneous instructions created a substantial risk of a miscarriage of justice. He set aside the jury's verdict of murder in the first degree, but rather than ordering a new trial as the defendant had requested, he sua sponte offered the Commonwealth the opportunity to elect whether it would accept a reduction in the verdict to murder in the second degree or whether it would seek a new trial on the original indictment. Over the defendant's objection, the Commonwealth accepted the verdict reduction. The judge denied the defendant's motion for reconsideration and ordered that the jury's verdict be reduced to murder in the second degree. The judge cited Mass. R.Crim. P. 25(b)(2) as the source of his authority to do so.⁵

The defendant petitioned a single justice of this court, pursuant to the "gatekeeper" provision of G.L. c. 278, § 33E, for leave to appeal. Responding to the Commonwealth's suggestion that the gatekeeper provision of § 33E did not apply in the circumstances of this case, the single justice allowed the defendant's petition under § 33E and transferred the appeal to this court pursuant to G.L. c. 211, § 4A.

2. Facts. The facts concerning the homicide are described in Commonwealth v. Gilbert, supra, and we need not detail them here. We note those additional facts that are relevant to the postconviction proceedings. As summarized in the amended bill of particulars, the Commonwealth's theory was that the victim "died as a result of her [carotid] arteries being crushed and torn. A hand, fist or cane, all could have inflicted the damage done to the deceased's carotid arteries, resulting in her death. . . ." At trial the Commonwealth's chief medical examiner, a forensic pathologist, opined that the victim died of "blunt neck trauma, which involved severe hemorrhages to her carotid arteries caused by blows or forceful pushes from thumbs, fingers, or a rounded edge," the result of a force "similar to . . . strangulation." See Commonwealth v. Gilbert, supra at 865, 673 N.E.2d 46. The medical examiner also testified concerning extensive injuries inflicted on other parts of the victim's body, some of which he characterized as "defensive wounds." Id.

The defense was that the victim died of "synergistic intoxication" after ingesting a toxic combination of aspirin and Tylenol, and that the injuries to her carotid arteries were caused by unsuccessful attempts to resuscitate her. The defendant, who testified at the trial, was the only person with the victim at the time of her death. He denied striking the deceased with his cane, his fists, or any other object, and denied kicking her, kneeling on her stomach, or battering her on the dates in question. A defense expert testified that there was an "absence of findings" consistent with strangulation, noting that there were no fingerprints on the victim's neck, no neck fractures, no petechial hemorrhages, and no evidence of hemorrhage in the strap muscles of the neck.

3. Application of the "gatekeeper" provision. The Commonwealth argues here, as it did in the county court, that the "gatekeeper" provision of G.L. c. 278, § 33E, does not apply when this court has affirmed a conviction of murder in the first degree on direct appeal, and a judge in the Superior Court thereafter sets aside the verdict of murder in the first degree and reduces the verdict under rule 25(b)(2). The plain language of the statute is to the contrary: in a capital case, G.L. c. 278, § 33E, directs "all appeals from postconviction motions to a single justice of this court." Commonwealth v. Francis, 411 Mass. 579, 583, 583 N.E.2d 849 (1992).⁶ In the Francis decision, a Superior Court judge had allowed a motion for a new trial some twenty years after this court had affirmed the defendant's conviction of murder in the first degree. This court rejected the Commonwealth's argument in that case that the Legislature had not intended the "gatekeeper" provision to apply to appeals by the Commonwealth. The "plain meaning" of the statute, this court ruled, was clear: "In a capital case, no appeal shall lie from a ruling on a postconviction motion without first having been allowed by a single justice of this court" (emphasis in original). Id. at 583-584, 583 N.E.2d 849. This, the court said, is not only consistent with the Legislature's intent, but "promotes efficient resolution of postconviction claims" in capital cases. Id. at 584, 583 N.E.2d 849. Until a Superior Court judge's postrescript order is reviewed on appeal (or the time for taking an appeal expires and there is no appeal), the Superior Court judge's order does not effect a final change in the defendant's conviction and the case remains a "capital case" for purposes of § 33E. The defendant stands convicted of murder in the first degree until this court says otherwise, or until the appellate period has run without an appeal being filed. See Commonwealth v. Davis, 410 Mass. 680, 683, 574 N.E.2d 1007 (1991) (G.L. c. 278, § 33E, "expressly prohibits an appeal from `any motion' filed in the Superior Court after § 33E review without the leave of a single justice of this court").⁷

Concluding that the motion judge's reduction of the verdict from murder in the first degree to murder in the second degree was a new and substantial question that ought to be determined by the full court, the single justice was correct to allow the defendant's appeal to proceed under G.L. c. 278, § 33E.

4. Authority to reduce the verdict. The defendant challenges the relief granted by the motion judge in two respects. He argues that the motion judge, having concluded that the jury instructions were both erroneous and prejudicial to the defendant, did not have the authority to reduce, sua sponte, the verdict to murder in the second degree, but was required by rule 30 to order a new trial. He next claims that, assuming the judge had such authority, the presence of malice cannot be "ineluctably inferred" from the evidence, Commonwealth v. Azar, 435 Mass. 675, 688, 760 N.E.2d 1224 (2002), S.C., 444 Mass. 72, 825 N.E.2d 999 (2005), quoting Commonwealth v. Vizcarrondo, 427 Mass. 392, 397, 693 N.E.2d 677 (1998), S.C., 431 Mass. 360, 727 N.E.2d 821 (2000), and that the only appropriate relief in this case is a new trial.⁸ We consider first the judge's authority to reduce the verdict, and then turn to consider whether the relief the judge actually granted was proper.

The motion judge carefully explained his reasons for offering the Commonwealth the choice of retrying the defendant for murder in the first degree or accepting a reduced verdict of murder in the second degree. Noting the length of time that had transpired between the homicide and the defendant's motion for new trial, he concluded that "simply ordering a new trial would be an undeserved windfall for the defendant because the jury was plainly unanimous in finding, at a minimum, that the defendant intended to inflict, at least, grievous bodily harm on [the victim] that resulted in her death, which is sufficient for a finding of murder in the second degree." Construing the rules of criminal procedure "to secure simplicity in procedure, fairness in administration, and the elimination of expense and delay," Mass. R.Crim. P. 2(a), 378 Mass. 844 (1979), we agree with the Commonwealth that the judge acted appropriately in ordering relief other than a new trial.

Rule 30(b) permits a judge to order a new trial "at any time if it appears that justice may not have been done." The second sentence of rule 25(b)(2) similarly provides that a judge "may on motion set aside the verdict and order a new trial." The latter rule also permits a judge to "order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint." Mass. R.Crim. P. 25(b)(2). The motion judge referred to the relief available under rule 30(b) as a "subset" of the relief available under rule 25(b)(2). The two rules do overlap in significant respects. Neither rule 30(b) nor rule 25(b)(2) provides an outer limit of time within which a defendant must file such a motion. See Commonwealth v. Keough, 385 Mass. 314, 318, 431 N.E.2d 915 (1982) (absence of time limit on filing of rule 25[b][2] motion "parallel...