Com. v. Latimore

• Decision Date: 11 July 1996
• Parties: COMMONWEALTH v. Willie R. LATIMORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 818

667 N.E.2d 818

423 Mass. 129

COMMONWEALTH v. Willie R. LATIMORE.

Supreme Judicial Court of Massachusetts Bristol.

Argued Feb. 7, 1996.

Decided July 11, 1996.

Daniel F. Featherston, Jr., Boston, for defendant.

David B. Mark, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J. and WILKINS, ABRAMS, LYNCH and FRIED, JJ.

ABRAMS, Justice

After a trial by jury in 1976, the defendant, Willie R. Latimore, was convicted of murder in the first degree. We affirmed the conviction. See Commonwealth v. Latimore, 378 Mass. 671, 679, 393 N.E.2d 370 (1979) (hereinafter Latimore I ) In 1992, the defendant's motion for a new trial on the ground of constitutionally erroneous jury instructions was allowed. In 1993, his motion to dismiss the indictment on the ground of unreasonable delay was denied. On retrial, the defendant was convicted of murder in the second degree. The defendant appealed. We granted his application for direct appellate review. He claims that the motion judge erred by: (1) denying his motion to dismiss the indictment; (2) failing to conduct an evidentiary hearing on prosecutorial misconduct; (3) allowing the prosecutor's peremptory challenges; and (4) instructing the jury on the meaning of "proof beyond a reasonable doubt" improperly. We conclude that there was no error. We also decline to exercise our extraordinary power under G.L. c. 278, § 33E (1994 ed.), to reduce the conviction of murder in the second degree to a lesser degree of guilt or to order a new trial. ¹

Facts. On the evening of October 18, 1975, at a tavern in Taunton called the Canadian Club (club), Philip Poirier was stabbed in the chest with an eight to ten inch knife or similar weapon. He died shortly after. Earlier that evening, the defendant and his brother Van (the only black patrons of the club that night), and a white female companion became noisy while playing pool. Poirier asked them to "keep it down." The defendant told Poirier, "Keep your mouth shut, you're not behind the bar." The defendant and his party left the club a short time later.

They drove to a package store, then to Van's house to pick up Van's heart medication, then back to the club. The defendant reentered the club while his companions waited in the car. He approached the bar. Poirier said something to the defendant, to which the defendant responded, "When are you going to learn to keep your mouth shut?" Blows were exchanged. The two men grappled and "ended up on the floor ... and it got to the point where [the victim] was on top of [the defendant], he had him straddled right down on the ground, on the floor.... He had his knees astride him and he had [the defendant on his back, his] two arms down on the floor ... then ... [the defendant] gave up ... at that point [the victim] got up [and] helped [the defendant] up.... He gave him his hand and took [the defendant's] hand and helped him up.... While they were standing there [the victim] said [to the defendant], 'Well, I got the worst of it.' He said, 'Look my shirt's all torn.' " Moments later Poirier said, "Oh, you son of a bitch." He staggered, then fell to the floor, and died from a single stab wound to the chest. The defendant ran to the car, started the engine, and drove away at a high rate of speed. The four eyewitnesses to the fight stated that they had neither observed the actual stabbing nor seen a knife in either party's possession at any time. No knife or other weapon was ever found.

The defendant's version was that he had returned to the club to search for his wallet, which he discovered was missing while at the package store. As to the fight itself, the defendant said that Poirier "reached around behind him while he was on top of me, and he pulled a knife out.... I grabbed his hand, and we were wrestling over the knife.... I felt ... real nervous and scared ... he was trying to press the knife into me, and ... [the] only thing I could do is hold on. And then ... I had to make a break. So, what I did was just roll him over, like flip him over off of me, and I just ran out the door."

The first trial and appeal. The judge at the first trial explained the meaning of "reasonable doubt" to the jury by analogy to the level of certainty a person would require in making decisions in life such as whether to take a new job. While the case was pending on appeal, we held that it was unconstitutional to use examples from the jurors' lives in the definition of reasonable doubt. Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264 (1977). ² In Commonwealth v. Garcia, 379 Mass. 422, 440-441, 399 N.E.2d 460 (1980), we stated that retroactive application of Ferreira was mandated by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). ³ Error in defining reasonable doubt creates "structural defects" not subject to harmless error analysis. Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993). In the defendant's appeal from the first trial, counsel did not raise the applicability of Ferreira. We did not raise or discuss it in our review of the record pursuant to G.L. 278, § 33E.

Subsequent proceedings. In 1982, the defendant filed a motion for new trial based in part on the trial judge's reasonable doubt instruction. The motion was denied, and, in 1983, a single justice of this court denied the defendant's application for leave to appeal.

In 1989, ⁴ the defendant petitioned for Federal habeas corpus review. Because procedural default in State court precludes Federal habeas corpus review if "the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar," Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989), the Commonwealth moved the single justice to clarify his 1983 denial of leave to appeal. The question raised was whether the denial of leave to appeal was based on procedural default. The single justice reviewed the case, and in 1990, amended the 1983 order, nunc pro tunc, to state that leave to appeal had been denied for reasons of procedural default. The habeas corpus petition was accordingly withdrawn.

In 1992, the defendant's second motion for a new trial was allowed by a Superior Court judge. A single justice of this court denied the Commonwealth's application for leave to appeal. The second trial, from which this appeal is taken, took place in October, 1993. The jury returned a verdict of guilty of murder in the second degree.

1. Due process and speedy trial. The defendant draws our attention to the period beginning August 7, 1979, when we affirmed his first conviction, and ending November 18, 1992, when the single justice denied the Commonwealth's application to appeal the order for retrial. See Commonwealth v. Levin, 390 Mass. 857, 860-861, 460 N.E.2d 578 (1984) (reversal requiring new trial not final until appellate court issues rescript). He characterizes that interval as a "delay of the prospective retrial" which, he contends violated his rights to a speedy trial and to due process of law, as guaranteed by arts. 11 and 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments to the Constitution of the United States. We do not agree.

"[W]e have recognized on several occasions that 'deliberate blocking of appellate rights or inordinate and prejudicial delay [of an appeal] ... may rise to the level of constitutional error.' " Campiti v. Commonwealth, 417 Mass. 454, 456, 630 N.E.2d 596 (1994), quoting Commonwealth v. Hudson, 404 Mass. 282, 284, 535 N.E.2d 208 (1989). Accord Commonwealth v. Weichel, 403 Mass. 103, 109, 526 N.E.2d 760 (1988); United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990) ("extreme delay in the processing of an appeal may amount to a violation of due process"). To prevail on a claim that due process was violated due to nondeliberate delay in the appellate process, a defendant must affirmatively demonstrate that the delay at issue was prejudicial. See Commonwealth v. Libby, 411 Mass. 177, 181, 580 N.E.2d 1025 (1991); Hudson, supra at 285, 535 N.E.2d 208; Weichel, supra at 109, 526 N.E.2d 760. ⁵ This defendant has not met that burden. His reliance on a statement of the judge made prior to trial, that the delay would prejudice the trial, is misplaced. Now that the trial has taken place, the judge's pretrial speculations are irrelevant.

Furthermore, the period at issue here began with our decision in Latimore I, which concluded the appellate process. The defendant cites no case supporting the proposition that due process is violated simply because a long interval of time separated the conclusion of the appellate process from the subsequent order for a new trial. He argues, however, that Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), is analogous and should be applied in such circumstances. We do not agree.

In Doggett, the United States Supreme Court held that, regardless of its cause, excessive delay between indictment and prosecution "presumptively compromises the reliability of a trial." Id. at 655, 112 S.Ct. at 2693. The logic of Doggett does not apply here. Delay of an initial trial compromises reliability because of the risk that exculpatory evidence will be lost--either through the death, disappearance, or fading memory of witnesses, or through the loss or degradation of real evidence. See United States v. Mohawk, 20 F.3d 1480, 1487 (9th Cir.1994). At a second trial, however, "[i]f important witnesses have become, for one reason or another, unavailable, their former testimony may be introduced at the second trial.... If memories have faded, they can be refreshed, using the record compiled in the first trial .... If key testimony unaccountably changes, it can be impeached by the same means.... As for the opportunity to collect exculpatory evidence, a...