Com. v. McCarthy

• Decision Date: 19 June 1978
• Parties: COMMONWEALTH v. George E. McCARTHY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 429

378 N.E.2d 429

375 Mass. 409

COMMONWEALTH v. George E. McCARTHY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 7, 1978.

Decided June 19, 1978.

John J. Droney, Dist. Atty., and Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

Robert A. Stanziani, Boston, and Randolph M. Gioia, West Roxbury, for defendant.

Before HENNESSEY, C. J., and KAPLAN, WILKINS and LIACOS, JJ.

HENNESSEY, Chief Justice.

This is an appeal from an order of a single justice, which order dismissed a petition for extraordinary relief brought by the Commonwealth pursuant to G.L. c. 211, §§ 3, 4A. ¹ In this petition, the Commonwealth asserted that, in granting a motion for a new trial to one George E. McCarthy, a defendant who had been convicted of murder in the second degree, the trial judge based his decision not on a conclusion that there were errors at trial, but on the belief that the mandatory sentence of life imprisonment was inappropriate for this case. The Commonwealth thus argued that the judge either abused his discretion or, alternatively, exceeded his jurisdiction under G.L. c. 278, § 29, by usurping the power reserved to the legislative and executive departments under art. 30 of the Declaration of Rights of the Constitution of the Commonwealth (the power to fix punishment for crimes; the power to put an end to criminal prosecutions). The Commonwealth urged the single justice (1) to vacate the order granting a new trial, and (2) to reinstate the jury verdict of guilty of murder in the second degree. Alternatively, the Commonwealth asked the single justice either to retain jurisdiction of the case and remand to the Superior Court for further findings, or to reserve and report the questions of law to the full bench.

We agree with the single justice's conclusion that this is not an appropriate case in which to exercise our extraordinary powers under G.L. c. 211, § 3. Accordingly, we affirm the dismissal of the Commonwealth's petition.

At the defendant's trial, there was testimony as to the following facts. On April 16, 1976, after spending a social evening together, Richard Doherty (the victim), his younger brother Joseph, and a few friends drove to the Doherty residence at 8 Carter Terrace, Somerville. The group listened to records for a short time and then Richard and his friends returned to the car.

While the driver backed out of the street, Richard observed his parents' neighbors, Edward J. McCarthy (McCarthy) and his son George (the defendant) in a car heading toward the McCarthy residence at 10 Carter Terrace. Richard immediately told the driver to let him out of the car. He then ran down the street in the direction of the McCarthy residence. Moments later, at approximately 10:50 P.M., four shots were heard in the vicinity of the McCarthy driveway.

An officer called to the scene testified that, shortly after he arrived at 10 Carter Terrace, he observed the body of Richard Doherty lying on its side near the McCarthys' car. The victim's left hand was clutched in a fist and held a chain six to eight inches in length.

The defendant immediately volunteered to the officer that he had shot the victim, but insisted that he had had no choice. It was the defendant's testimony that, after the defendant's father backed the car into the driveway, Richard Doherty appeared suddenly, and, with a chain in his fist, began to punch the elder McCarthy. The defendant warned the victim to leave his father alone, and fired two warning shots. When the victim advanced toward him, the defendant fired directly at Doherty.

There was testimony that after the defendant admitted the shooting, the officer placed him under arrest. A pat-down search revealed that the defendant wore a shoulder holster carrying a .380 semi-automatic pistol. The weapon still contained two live rounds of ammunition marked ".380 automatic," the same variety as was later found in the victim's body.

At the close of the evidence, the defendant filed a motion for a directed verdict which motion was taken under advisement pursuant to G.L. c. 278, § 11. ² On March 17, 1977, the jury returned a verdict of guilty of murder in the second degree. The following day, after a hearing, the judge denied the defendant's motion for a directed verdict, but suggested that the defendant file a motion for a new trial. The defendant did so on March 21, 1977, and on March 25, 1977, the judge ruled: "After hearing, in the exercise of that discretionary power granted pursuant to General Laws, Chapter 278, Section 29, wherein it appears that justice may not have been done, the within motion is allowed, and a new trial granted." ³

During the course of the hearing on the motion for a new trial, the judge made the following comments: "You could say the day after tomorrow that if there was a plea (of guilty to manslaughter), that was obvious coercion, because he was under the gun. . . .

"I think the motion for a new trial is the only thing to do. I don't like to be substituting my judgment for somebody else. But you and I both know that there are guys up in Walpole that are there for second-degree murder, and if you put them in a line and put McCarthy with them and put the quantum I'm not I'm just looking at them as a group and you would be kind of surprised. . . .

"I am inclined to (allow the motion), because it seems to be disproportionate, when you take those people who are up there . . . I haven't had that many, but, say, enough and you must have, too plenty of cases of first degree murder and all of a sudden they come in on second degree, including some that you and I would both consider first-degree murder, and some manslaughter; had them in armed robbery, manslaughter that it just seems to be disproportionate. . . .

"I'm extremely reluctant to ever interfere, because when you tell . . . (the jury) it's theirs, it's theirs. I am, as is quite apparent, I am tempted in this case, because I know something they don't know the jury: I know the quantum of punishment. . . . I know that the penalty is life, mandatory. I know that he actually serves 15 years. I know if it's manslaughter, it can be a big spread." On the basis of these comments, the Commonwealth sought appellate review under G.L. c. 211, § 3.

1. We first observe that the order of the Superior Court judge which forms the basis of the Commonwealth's appeal is interlocutory in nature. See Fine v. Commonwealth, 312 Mass. 252, 256, 44 N.E.2d 659 (1942). Further, it is not the type of interlocutory ruling from which the Commonwealth may appeal pursuant to G.L. c. 278, § 28E, as amended by St.1972, c. 740, § 16. ⁴ Therefore, as the petitioner concedes the only means of review open to the Commonwealth is by way of invoking this court's general superintendence power under G.L. c. 211, § 3.

It is well settled that we will review interlocutory rulings in criminal cases under G.L. c. 211, § 3, "(o)nly in the most exceptional circumstances," Gilday v. Commonwealth, 360 Mass. 170, 171, 274 N.E.2d 589, 590 (1971), and only when "it becomes necessary to protect substantive rights." BLAISDELL V. COMMONWEALTH, ---MASS. ---, --- , 364 N.E.2D 191, 194.^A See generally, A JUVENILE V. COMMONWEALTH, ---MASS. --- , 374 N.E.2D 1351 (1978)^B; BURKE V. COMMONWEALTH, ---MASS. ---, --- , 365 N.E.2D 811 (1977)^C; COMMONWEALTH V. FRADO, ---MASS. --- , 362 N.E.2D 206 (1977)^D; Lataille v. District Court of E. Hampden, 366 Mass. 525, 526, 320 N.E.2d 877 (1974); Corey v. Commonwealth, 364 Mass. 137, 138, 301 N.E.2d 450 (1973); Myers v. Commonwealth, 363 Mass. 843, 844, 298 N.E.2d 819 (1973); Barber v. Commonwealth, 353 Mass. 236, 239, 230 N.E.2d 817 (1967). As to the Commonwealth's argument that the trial judge exceeded his jurisdiction in vacating a judgment of guilty, we assume without deciding that, under some circumstances, this may be the type of interlocutory ruling which results in "irremediable" prejudice, and which therefore may be reviewable under G.L. c. 211, § 3. See Gilday v. Commonwealth, supra. We further assume without deciding that under some circumstances the Commonwealth may assert substantive rights under G.L. c. 211, § 3. Commonwealth v. Frado,supra, ---MASS. AT --- , 362 N.E.2D 206.^E In the instant case, however, we are not persuaded that there has been any infringement of the Commonwealth's substantive rights.

First, we reject the Commonwealth's suggestion that, under G.L. c. 278, § 29, it was necessary for the judge to base his decision to order a new trial on the ground that a particular legal error occurred at trial. A motion for a new trial is addressed to the sound discretion of the trial judge. Commonwealth v. Gagne, 367 Mass. 519, 526, 326 N.E.2d 907 (1975). Commonwealth v. Rembiszewski, 363 Mass. 311, 322, 293 N.E.2d 919 (1973). Commonwealth v. Slaney, 345 Mass. 135, 142, 185 N.E.2d 919 (1962). Commonwealth v. Galvin, 323 Mass. 205, 220, 80 N.E.2d 825 (1948). While the proper exercise of this discretion under G.L. c. 278, § 29, of course does not include actions which are arbitrary, frivolous, or contrary to law, see Bartley v. Phillips, 317 Mass. 35, 42, 57 N.E.2d 26 (1944), it necessarily includes the flexibility to consider the case as a whole, to assess the weight of the evidence, and to bring the interest of justice to bear. ⁵ See generally, Commonwealth v. Stout, 356 Mass. 237, 242, 249 N.E.2d 12 (1969).

Second, we disagree with the Commonwealth's analysis that the judge's remarks during the hearing on the motion for a new trial show either an abuse of discretion or an intention to grant the motion in order to circumvent the legislative mandate of a life sentence. A careful reading of the judge's comments leads us to conclude that the judge did not exercise his discretion in an arbitrary or frivolous manner. ⁶ On the contrary, he expressed a general reluctance to interfere with the jury's verdict, and ordered a new trial only after what appears to be a...