Com. v. Miranda

• Decision Date: 07 April 1986
• Citation: 22 Mass.App.Ct. 10,490 N.E.2d 1195
• Parties: COMMONWEALTH v. Myles R. MIRANDA.
• Court: Appeals Court of Massachusetts

Page 1195

490 N.E.2d 1195

22 Mass.App.Ct. 10

COMMONWEALTH v. Myles R. MIRANDA.

Appeals Court of Massachusetts,

Barnstable.

Argued Dec. 18, 1985.

Decided April 7, 1986.

Thomas C. Federico, Committee for Public Counsel Services, Boston, for defendant.

Richard J. Piazza, Asst. Dist. Atty., for Com.

Before ARMSTRONG, CUTTER and KASS, JJ.

ARMSTRONG, Justice.

The defendant Miranda and two other prisoners in the Barnstable County house of correction were tried in May, 1976, before a judge sitting without a jury on several indictments for rape, sodomy, and assault and battery, the victims being other prisoners. The involved prisoners all testified, alleged perpetrators as well as one victim (the other victim had died, apparently for unrelated reasons, prior to trial). At the close of the evidence, the trial judge stated:

"Well, gentlemen, I don't think it is necessary to have arguments in this. I am actually giving no credibility whatsoever to the testimony of the three defendants. I don't believe a word they said. With that in mind, it would be superfluous to argue the case. I am finding them all guilty as charged."

None of the three defense counsel formally objected to this procedural shortcut, although counsel for Miranda did suggest in his remarks on sentencing that he had intended and would have preferred to give a summation before the judge's finding was rendered. ¹ Nevertheless, counsel for Miranda did not appeal, ² nor, so far as we have been able to ascertain from appellate dockets, did counsel for the other defendants.

In January, 1985, Miranda, represented by new counsel, filed a motion for a new trial, ³ based on a contention that the action of the trial judge in foreclosing summations by counsel deprived him of a fundamental constitutional right which had been announced in Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), about a year before his trial. The trial judge having resigned before the motion for a new trial was filed, the motion was heard by another judge, who denied it on the ground that defense counsel had taken no objection to the trial judge's action and thus the issue was not preserved.

In Herring v. New York, the Supreme Court invalidated a New York statute which was interpreted as giving a judge sitting without jury at a criminal trial discretion whether to entertain summations. In express reliance on that statute, the trial judge in Herring had denied defense counsel's request to be allowed to give a closing argument. The Herring case held that the right to make a summation is an integral part of a defendant's fundamental right to the assistance of counsel, ⁴ and that the right is not of less significance when the case is tried to a judge rather than to a jury. ⁵ The Herring case also suggested (422 U.S. at 863-864), 95 S.Ct. at 2555-2556, and is generally read as having held (see, e.g., Patty v. Bordenkircher, 603 F.2d 587, 589 [6th Cir.1979]; United States v. Spears, 671 F.2d 991, 992 [7th Cir.1982]; Adams v. Balkcom, 688 F.2d 734, 739 n. 1 [11th Cir.1982]; Thomas v. United States, 473 A.2d 378 [D.C.1984]; State v. Gilman, 489 A.2d 1100, 1103 [Me.1985] ), that a defendant who is denied the right to present closing argument will be entitled to reversal without making a showing of prejudice. ⁶

There can be no doubt that, if Miranda's counsel had registered an objection to the short-circuiting of closing arguments and, under the practice at that time (i.e., before Mass.R.Crim.P. 22, 378 Mass. 892 [1979] ), had taken an exception, Miranda's conviction would have been reversed on appeal. With substantial consensus, courts in other jurisdictions that have considered similar situations have arrived at the conclusion that an error of this type is difficult to remedy even if inadvertent and is irremediable where, as here, the judge has made remarks to the effect that argument would not cause him to change his mind. See United States v. Walls, 443 F.2d 1220, 1223-1224 (6th Cir.1971); United States v. King, 650 F.2d 534, 536-537 (4th Cir.1981); Grigsby v. State, 333 So.2d 891, 893 (Ala.Crim.App.) , cert. denied, 333 So.2d 894 (Ala.1976); In re William F., 11 Cal.3d 249, 255 n. 5, 113 Cal.Rptr. 170, 520 P.2d 986 (1974); State v. Gilman, 489 A.2d 1100 (Me.1985); Yopps v. State, 228 Md. 204, 207, 178 A.2d 879 (1962); Spence v. State 296 Md. 416, 423, 463 A.2d 808 (1983); Moore v. State, 7 Md.App. 330, 333-334, 254 A.2d 717 (1969); Jones v. State, 55 Md.App. 695, 700, 466 A.2d 55 (1983); Columbus v. Woodrick, 48 Ohio App.2d 274, 277-278, 357 N.E.2d 58 (1976); Commonwealth v. Miller, 236 Pa.Super.Ct. 253, 256-257, 344 A.2d 527 (1975); Commonwealth v. Dinkins, 272 Pa.Super.Ct. 387, 390-391, 416 A.2d 94 (1979). But see People v. Daniels, 51 Ill.App.3d 545, 548, 9 Ill.Dec. 574, 366 N.E.2d 1085 (1977); Commonwealth v. Cooper, 229 Pa.Super.Ct. 52, 55, 323 A.2d 255 (1974).

Unlike such cases as United States v. Spears, 671 F.2d 991, 994-995 (7th Cir.1982), Lee v. State, 175 Ind.App. 17, 21-22, 369 N.E.2d 1083 (1977) (Staton, J., concurring), State v. Mann, 361 A.2d 897, 905 (Me.1976), State v. Hale, 472 S.W.2d 365, 366 (Mo.1971), and State v. Rojewski, 202 Neb. 34, 38 (1979), there was no way for counsel in this case to anticipate that the judge was about to announce his finding. We cannot fairly imagine a time break between the judge's first sentence and those that followed. Contrast People v. Manning, 120 Cal.App.3d 421, 425-426, 174 Cal.Rptr. 625 (1981). Rather, his four sentences together constituted an unbroken thought--that argument was superfluous because he had already determined that the defendants were guilty. Counsel could, however, have made an objection after the finding and raised the point on appeal, but he did not do so.

In most cases a failure by a defendant to make his objection known to the trial judge and to raise the point on appeal, where he could have done so, will preclude his raising it later on in a motion for a new trial. This principle has been fundamental to our practice, both before and after the adoption of the rules of criminal procedure. See Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973); Commonwealth v. Pisa, 384 Mass. 362, 366, 425 N.E.2d 290 (1981); Commonwealth v. Turner, 393 Mass. 685, 689, 473 N.E.2d 679 (1985). It is a principle which has been held to limit the rule announced in Earl v. Commonwealth, 356 Mass. 181, 184, 248 N.E.2d 498 (1969), that if "the original trial was infected with prejudicial constitutional error the judge has no discretion to deny a new trial." See Commonwealth v. Underwood, 358 Mass. 506, 511-512, 265 N.E.2d 577 (1970); Commonwealth v. Antobenedetto, 366 Mass. 51, 58-59, 315 N.E.2d 530 (1974).

Traditionally this rule was subject to exception principally for matters relating to the jurisdiction of the court (including a failure of the indictment or complaint to charge an offense, ⁷ a conviction of an offense not charged, ⁸ or a sentence in excess of that provided for the offense found ⁹). Otherwise, a criminal judgment was treated as final unless, on a showing either on or beyond the record, it should be found that a waiver or plea was involuntary, or the defendant incompetent to stand trial, or, on a showing of newly discovered evidence, the trial court should exercise its discretion to grant a new trial. Compare Ciummei v. Commonwealth, 378 Mass. 504, 509 & n. 8, 392 N.E.2d 1186 (1979). Such matters by their nature would not normally be made the basis for objection at the trial, or, unless new counsel appears for the defendant at the appellate level, the subject of direct appeal.

In recent years five exceptions to the traditional rule have been applied with some frequency. One is review of a conviction under G.L. c. 278, § 33E, under a standard variously expressed as "only upon a showing of grave prejudice or substantial likelihood that a miscarriage of justice has occurred," ¹⁰ "where ... for some ... reason justice requires a new trial," ¹¹ or to achieve a result "more consonant with justice." ¹²

In cases subject to § 33E, review is said to be "obligatory", Commonwealth v. Davis, 380 Mass. 1, 15 n. 20, 401 N.E.2d 811 (1980), Commonwealth v. Cole, 380 Mass. 30, 38, 402 N.E.2d 55 (1980), but the standard is said to be "essentially discretionary", Commonwealth v. Grace, 381 Mass. 753, 759, 412 N.E.2d 354 (1980). Review encompasses matters of fact as well as law. Review under § 33E, however, is available only in the Supreme Judicial Court and applies only to convictions of murder in the first degree. ¹³

A second exception is that exercised in Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967), which recognized ¹⁴ the authority of a reviewing court to correct an error which "was of a type and seriousness which should lead [the court] to reverse in the absence of a proper exception. The test is whether there is a substantial risk of a miscarriage of justice." Id. The Freeman exception is more widely available than that under § 33E, applying, potentially, in any criminal case, whether reviewed in this court or the Supreme Judicial Court. The scope of review, however, is narrower, not extending to questions concerning the weight of the evidence, and applying, as to alleged errors of law, only the restrictive "miscarriage" standard, sometimes, but not always, applied in § 33E cases.

A third exception, which might be called the "clairvoyance" exception, applies to errors of constitutional dimension where the constitutional principle offended against "was [not] sufficiently developed at the time of the [defendant's] trial and appeal to afford the [defendant] a genuine opportunity to raise his claim," DeJoinville v. Commonwealth, 381 Mass. 246, 248, 408 N.E.2d 1353 (1980), and where the principle, when fully developed, is to be given retroactive application. Despite the retroactivity, State courts are free, under the Federal Constitution, to confine...