Com. v. Grace

• Decision Date: 12 November 1980
• Citation: Com. v. Grace, 412 N.E.2d 354, 381 Mass. 753 (Mass. 1980)
• Parties: COMMONWEALTH v. Frank GRACE (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 354

412 N.E.2d 354

381 Mass. 753

COMMONWEALTH v.Frank GRACE (and a companion case ¹ ).

Supreme Judicial Court of Massachusetts, Bristol.

Submitted Sept. 8, 1980.

Decided Nov. 12, 1980.

Daniel F. Featherston, Jr., for the defendants.

Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky and Barbara A. H. Smith, Asst. Attys.Gen., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS, and ABRAMS, JJ.

BRAUCHER, Justice.

Before the United States Court of Appeals for the First Circuitthe defendants claimed that this court, in Commonwealth v. Grace, 376 Mass. ---^a, 381 N.E.2d 139(1978), "violated the fourteenth amendment by failing to apply in appellants' case the same rules that were announced in a later case claimed to be essentially indistinguishable,"Commonwealth v. Garcia, --- Mass. ---^b, 399 N.E.2d 460(1980).SeeGrace v. Butterworth, 635 F.2d 1, (1st Cir.1980).At the suggestion of the Federal court, the defendants now present that claim to us by a petition for reconsideration.Upon full consideration of the claim, we adhere to our 1978 decision.

1.The procedural posture.The defendantbrothers were tried together in 1974 for a murder committed in 1972, and we affirmed their convictions and orders denying motions for new trial, considering the whole case on the law and the evidence pursuant to G.L. c. 278, § 33E.Commonwealth v. Grace, 370 Mass. 746, 758, 352 N.E.2d 175(1976).Commonwealth v. Grace, 370 Mass. 759, 762, 352 N.E.2d 183(1976).Habeas corpus petitions were dismissed by a Federal court, and the dismissals were affirmed.Grace v. Butterworth, 586 F.2d 878(1st Cir.1978).Meanwhile, the defendants filed second motions for a new trial on the basis of our decision in Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264(1977), and denial of those motions was affirmed in Commonwealth v. Grace, 376 Mass. ---^c, 381 N.E.2d 139(1978).A second habeas corpus petition was filed and denied in the Federal court, and the Court of Appeals affirmed.Grace v. Butterworth, 635 F.2d 1(1st Cir.1980). ^d

On the basis of our decision in Commonwealth v. Garcia, --- Mass. ---^e, 399 N.E.2d 460(1980), the defendants filed a petition for rehearing in the United States Court of Appeals.That Court granted a rehearing and decided "to retain jurisdiction while the Graces put their claim before the state courts."Grace v. Butterworth, 635 F.2d 1, 11(1st Cir.1980). ^f Later that Court adhered to that decision after the defendants had called its attention to our decision in Commonwealth v. Smith, --- Mass. ---^g, 407 N.E.2d 1291(1980).Grace v. Butterworth, 635 F.2d 1(1st Cir., 1980).We treated the defendants' petition as a petition for rehearing, and the parties have filed briefs.

2.The Ferreira and Garcia cases.The same trial judge who presided over the Grace trial also presided over the trials in the Ferreira and Garcia cases, and he used substantially similar language in these and presumably in numerous other cases in instructing the jury on reasonable doubt.See, e. g., Commonwealth v. Ferguson, 365 Mass. 1, 11, 309 N.E.2d 182(1974).In the Ferreira and Garcia cases, as in the Grace cases, counsel failed to object or except to this aspect of the charge.Both the Ferreira case and the Garcia case came to us on direct appeal, and we considered the issue pursuant to our powers under G.L. c. 278, § 33E.

The evidence in the Ferreira case"demonstrated clearly that a vicious and unprovoked murder was committed and that one of two men, the defendant or Silva, committed that murder."There was "a classic duel of credibility: Silva testified that the defendant fired the shots, and the defendant testified that Silva did the shooting."373 Mass. at 127, 364 N.E.2d 1264.We considered the charge on reasonable doubt "in light of the fact that, as emphasized supra, the evidence of the defendant's guilt was not overwhelming."Id. at 128, 364 N.E.2d 1264.We held that the judge's use of examples taken from the jurors' lives "understated and tended to trivialize" the jury's duty to determine whether guilt was proved beyond a reasonable doubt.We noted that we had "previously criticized the type of analogy drawn here."Id. at 129, 364 N.E.2d 1264, and cases cited.Without any reference to constitutional requirements, we ordered a new trial.After a second trial we affirmed the defendant's conviction of murder in the first degree.Commonwealth v. Ferreira, --- Mass. ---^h, 409 N.E.2d 188(1980).

In the Garcia casewe affirmed a conviction of second degree murder, holding that in view of the "overwhelming evidence of guilt" error in the charge on reasonable doubt was harmless.--- Mass. --- - ---ⁱ, 398 N.E.2d 743.One judge dissented on the ground that an erroneous charge on reasonable doubt cannot be harmless.Id. at --- - ---^j, 398 N.E.2d 743.We first noted that in the absence of objection or exception we would reverse under § 33E only upon a showing of grave prejudice or substantial likelihood that a miscarriage of justice has occurred.We distinguished our 1978 decision in the Grace cases as an appeal from the denial of a motion for a new trial rather than a direct appeal.We said that the charge in the Garcia case, like that in the Ferreira case, was "constitutionally inadequate," and that the Ferreira decision had retroactive application to a 1970 trial, emphasizing, however, that we would "scrutinize more carefully jury instructions given after the date of Ferreira."Id. at --- - ---^k, 399 N.E.2d 460.

3.Dispensing with exceptions.Before the effective date of Mass.R.Crim.P. 22, --- Mass. ---(effective July 1, 1979), we insisted in general that appellate review in criminal cases be based on a proper exception to the judge's ruling.We recognized, however, a "rarely used" power to set aside a verdict in order to prevent a miscarriage of justice when a decisive matter was not raised at the trial.Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3(1967).Commonwealth v. Hughes, --- Mass. ---, ---^l, 404 N.E.2d 1246(1980).We have exercised the same power on collateral attack by writ of error.Connolly v. Commonwealth, --- Mass. ---, --- n.9^m, 387 N.E.2d 519(1979).SeeCommonwealth v. Hughes, --- Mass. ---, --- n.1ⁿ, 404 N.E.2d 1246(1980)(Liacos, J., dissenting);cf.Gibson v. Commonwealth, --- Mass. ---, --- - ---^o, 387 N.E.2d 123(1979).Our decision in the present case applies the same standard to collateral attack by motion for new trial, pursuant to Earl v. Commonwealth, 356 Mass. 181, 184, 248 N.E.2d 498(1969).Commonwealth v. Grace, 376 Mass. ---, ---^p, 381 N.E.2d 139(1978).

In Commonwealth v. Stokes, 374 Mass. 583, 374 N.E.2d 87(1978), a case not subject to G.L. c. 278, § 33E, because both indictment and conviction were for second degree murder, we held that it was appropriate to review the constitutional sufficiency of the judge's charge notwithstanding the failure of counsel to request an instruction or to object or except to the charge given.The charge in question was given before the decisions in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508(1975), andCommonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203(1976);the Supreme Court had given the Mullaney case"complete retroactive effect" in Hankerson v. North Carolina, 432 U.S. 233, 241, 243, 97 S.Ct. 2339, 2344, 2345, 53 L.Ed.2d 306(1977); and we did not require "clairvoyance on the part of defense counsel."But we need not "apply a narrow and precise test"; the charge must "be examined in its entirety to determine whether the constitutional requirements have been met."We will "bring greater expectations, and consequently more careful scrutiny" to a charge given after the date of the Mullaney decision, and particularly after the date of the Rodriguez, decision.Stokes, supra at 588-591, 374 N.E.2d 87.

When an appeal is subject to G.L. c. 278, § 33E, we transfer to this court"the whole case for its consideration of the law and the evidence," and we may, "if satisfied that the verdict was against the law or the weight of the evidence, ... or for any other reason that justice may require," order a new trial or direct the entry of a verdict of a lesser degree of guilt.The quoted provisions stem from an amendment by St.1939, c. 341, enacted in part to broaden the scope of our review of "capital cases" beyond the narrow limits enforced in the controversial Sacco and Vanzetti trials.SeeCommonwealth v. Brown, 376 Mass. ---, --- - ---^q, 380 N.E.2d 113(1978).The result has been to give us a discretionary power broader than that of a trial judge, though one to be used "with restraint."Commonwealth v. Mazza, 366 Mass. 30, 33, 313 N.E.2d 875(1974);seeCommonwealth v. Gricus, 317 Mass. 403, 404-407, 58 N.E.2d 241(1944).In exercising that power we are not limited by the defendant's failure to object or except.See, e. g., Commonwealth v. Carballo, --- Mass. ---, ---^r, 407 N.E.2d 1295(1980);Commonwealth v. Corcione, 364 Mass. 611, 618, 307 N.E.2d 321(1974);Commonwealth v. Myers, 356 Mass. 343, 346-347, 252 N.E.2d 350(1969).

In the Ferreira and Garcia caseswe exercised our power under § 33E to review the charge on reasonable doubt in the absence of an objection or exception.In Gibson v. Commonwealth, --- Mass. ---, ---^s, 387 N.E.2d 123(1979), where we denied postconviction relief, we said, "Even without any objection or exception we might have taken the point on direct appeal as a basis for ordering a new trial under G.L. c. 278, § 33E."But the absence of an objection or exemption is not irrelevant in a case under § 33E; in Commonwealth v. Fluker, 377 Mass. 123, --- - ---^t, 385 N.E.2d 256(1979), we found that the state of the law on the issue argued was no longer uncertain at the time of trial, and we refused to review that issue in the absence of any requested instruction, objection or exception.

4.Discretion and consistency....