Com. v. Gilday

• Decision Date: 07 January 1991
• Citation: 564 N.E.2d 577,409 Mass. 45
• Parties: COMMONWEALTH v. William Morrill GILDAY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 577

564 N.E.2d 577

409 Mass. 45

COMMONWEALTH v. William Morrill GILDAY, Jr.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 1, 1990.

Decided Jan. 7, 1991.

Wendy Sibbison, Greenfield, for defendant.

David B. Mark, Asst. Dist. Atty., for Com.

William C. Newman, Northampton, for Civ. Liberties Union of Massachusetts, et al., amici curiae, submitted a brief.

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

LIACOS, Chief Justice.

In 1972, the defendant, William M. Gilday, Jr., was convicted by a jury on an indictment charging murder in the first degree of a Boston police officer, and on two indictments for armed robbery. He received concurrent life sentences for the armed robbery convictions and a death sentence for the murder conviction, which was later reduced to life imprisonment in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See Commonwealth v. Gilday, 367 Mass. 474, 327 N.E.2d 851 (1975) (Gilday I ). After two unsuccessful motions for new trial following his conviction, the defendant filed a third motion for new trial pro se on January 11, 1979, but was represented by counsel prior to an order denying that motion. A judge in the Superior Court issued an order on February 11, 1980, denying the third motion for new trial. We affirmed the order. Commonwealth v. Gilday 382 Mass. 166, 415 N.E.2d 797 (1980) (Gilday II ). ¹ On June 1, 1987, the defendant filed a fourth motion for new trial pursuant to Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). This motion was denied. A motion for reconsideration was also denied. On October 24, 1989, a single justice of this court granted the defendant's application for leave to appeal the order denying his fourth motion for new trial and his motion for reconsideration. See G.L. c. 278, § 33E (1988 ed.). ²

On appeal, the defendant asserts several grounds for reversal of the order denying his fourth motion for new trial. Only the issue of the trial judge's instructions regarding intoxication is properly before us, however, as that was the only issue before the motion judge below. ³

The defendant claims that the judge's instructions at his trial in 1972 invalidly precluded the jury from considering evidence of his intoxication with respect to his capacity to form the requisite specific intent to commit murder in the first degree or, alternatively, armed robbery. While the judge's instructions were a correct statement of the law in 1972, our decision in Commonwealth v. Henson, 394 Mass. 584, 476 N.E.2d 947 (1985), announced a new rule. See Commonwealth v. Robinson, 408 Mass. 245, 247 n. 2, 557 N.E.2d 752 (1990). See also Commonwealth v. Sheehan, 376 Mass. 765, 774-75, 383 N.E.2d 1115 (1978). In Henson we stated that, "where proof of a crime requires proof of a specific criminal intent and there is evidence tending to show that the defendant was under the influence of alcohol or some other drug at the time of the crime, the judge should instruct the jury, if requested, that they may consider evidence of the defendant's intoxication at the time of the crime in deciding whether the Commonwealth has proved that specific intent beyond a reasonable doubt." Commonwealth v. Henson, supra 394 Mass. at 593, 476 N.E.2d 947. The defendant claims that this new rule should be applied retroactively to his case on collateral review. We disagree. In Commonwealth v. Robinson, supra, we held that the standard for retroactive application of a new rule to a case on collateral review, as announced in Commonwealth v. Bray, 407 Mass. 296, 300, 303, 553 N.E.2d 538 (1990), did not require the retroactive application of the Henson rule because the rule was not "central to an accurate determination of the defendant's innocence or guilt." Commonwealth v. Robinson, supra 408 Mass. at 248, 557 N.E.2d 752. The same is true of the case before us today. Therefore, we conclude that the defendant is not entitled to retroactive application of the Henson rule to his trial in 1972, and we affirm the denial of the defendant's fourth motion for new trial and his motion for reconsideration.

So ordered.

1 The significant facts of the case may be found in Gilday I, supra 367 Mass. at 477-485, 327 N.E.2d 851.

2 General Laws c. 278, § 33E (1988 ed.), provides in relevant part that: "[i]f any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court."

3 In his motion for reconsideration of the order denying the fourth motion for new trial, the defendant argued that the judge did not address all the issues set forth in the motion. We find this argument untenable. The judge's memorandum and order fully addressed the...