Com. v. Therrien

• Decision Date: 29 December 1998
• Citation: 703 N.E.2d 1175,428 Mass. 607
• Parties: COMMONWEALTH v. Armand R. THERRIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1175

703 N.E.2d 1175

428 Mass. 607

COMMONWEALTH v. Armand R. THERRIEN.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Nov. 2, 1998.

Decided Dec. 29, 1998.

Richard L. Goldman, Granby, for defendant.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

ABRAMS, Justice.

The defendant, Armand R. Therrien, appeals from a denial of his fifth motion for a new trial, which raises the issue of the judge's instructions in light of Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). A single justice allowed the defendant's application for leave to appeal from the order denying his motion for a new trial. See Commonwealth v. Ambers, 397 Mass. 705, 706, 493 N.E.2d 837 (1986). We affirm the order denying the motion for a new trial.

On September 17, 1975, the defendant was convicted of murder in the first degree (two indictments), of assault with intent to murder, of assault and battery by means of a dangerous weapon, and of unlawful possession of a weapon. A description of the facts surrounding these convictions is reported at Commonwealth v. Therrien, 371 Mass. 203, 355 N.E.2d 913 (1976).

In 1996, the defendant filed his fifth motion for a new trial, arguing that the jury instruction using "moral certainty" as the standard for defining reasonable doubt violated his constitutional right to a fair trial. ¹ The motion was denied. The defendant filed a motion for reconsideration asserting that recent developments in the law concerning the use of "moral certainty" in defining reasonable doubt entitled him to a new trial. After hearing, the defendant's motion was denied by a Superior Court judge. ² The defendant then petitioned a single justice of this court, pursuant to the "gatekeeper" provision, see G.L. c. 278, § 33E, for leave to appeal the denial of his postconviction motion. See Commonwealth v. Smith, 427 Mass. 245, 247, 692 N.E.2d 65 (1998); Ambers, supra at 706, 493 N.E.2d 837. The single justice allowed the defendant's appeal on the jury instructions in light of recent cases criticizing the use of "moral certainty" language. ³ We turn now to the defendant's appeal.

Moral certainty. The defendant contends that the judge erred in explaining reasonable doubt to the jury by employing the term "moral certainty" without adequately explaining or giving content to that phrase. The defendant asserts that the judge's use of the term "moral certainty" alone "failed to impress upon the jury the 'high degree of certainty' required to convict the defendant ... beyond a reasonable doubt." In reviewing the defendant's claim, we review the instructions on "moral certainty" to determine whether "a reasonable juror could have used the instruction incorrectly." Commonwealth v. Rosa, 422 Mass. 18, 27, 661 N.E.2d 56 (1996). See Commonwealth v. Smith, supra at 249 n. 6, 692 N.E.2d 65. The only issue now before us is whether the term "moral certainty" was explained adequately. ⁴

Relying in part on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), the defendant contends that the judge's instructions "failed to impress upon the jury the high degree of certainty required to find the defendant guilty beyond a reasonable doubt." In Cage, the trial judge defined reasonable doubt as "such doubt as would give rise to a grave uncertainty.... It is an actual substantial doubt.... What is required is ... a moral certainty." Cage, supra at 40, 111 S.Ct. 328. The United States Supreme Court held that the use of these statements could have suggested a "higher degree of doubt than is required for acquittal under the reasonable doubt standard." Id. at 41, 111 S.Ct. 328.

In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the United States Supreme Court criticized the use of "moral certainty" language in the abstract. Id. at 13-16, 114 S.Ct. 1239. However, the Supreme Court said that "moral certainty" language, if used with language which lends content and meaning to the phrase, is not reversible error. Id. at 14, 16, 114 S.Ct. 1239. In Victor, the jurors were told they needed "an abiding conviction, to a moral certainty, of the truth of the charge." Id. at 14, 114 S.Ct. 1239. The jurors were instructed that their conclusions had to be based "on the evidence in the case ... [and that they] must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." Id. at 16, 114 S.Ct. 1239. Because the jurors were so instructed in Victor, the Supreme Court held that "there [was] no reasonable likelihood that the jury would have understood moral certainty to be disassociated from the evidence. [The Court did] not think it reasonably likely that the jury understood the words 'moral certainty' ... as suggesting a standard of proof lower than due process requires." Id. at 16, 114 S.Ct. 1239.

We also have reversed a conviction for murder in the first degree based on a faulty "moral certainty" instruction. See Commonwealth v. Pinckney, 419 Mass. 341, 644 N.E.2d 973 (1995). In Pinckney, we said that the combination of moral certainty language, conflicting and incorrect definitions of reasonable doubt, and a misstatement of a disfavored charge from Commonwealth v. Madeiros, 255 Mass. 304, 151 N.E. 297 (1926), "lead us to the conclusion that the instruction failed to convey accurately to the jury the meaning of reasonable doubt." Pinckney, supra at 349, 644 N.E.2d 973. We noted, however, that use of "moral certainty" language "was not reversible error where it was used with an additional instruction which impressed upon the fact finder the need to reach a subjective state of near certitude of the guilt of the accused." Id. at 344, 644 N.E.2d 973.

Similarly, in Commonwealth v. Bonds, 424 Mass. 698, 703, 677 N.E.2d 1131 (1997), we reversed a conviction because the judge equated proof beyond a reasonable doubt with moral certainty, "and then [gave] no content to the phrase 'moral certainty' except to compare it with the certainty required to make important personal decisions." Again, we stressed that "moral certainty" language must be explained adequately. ⁵

The defendant contends that the instructions in his case were analogous to the unconstitutional instructions in Cage, Pinckney, and Bonds. He argues that the judge used moral certainty language without adding content or meaning to the phrase. ⁶ We disagree.

Contrary to the defendant's contention, the instructions at his trial were closer to those upheld in Victor than to those in Cage or Pinckney. The judge instructed the jurors that they "should evaluate the testimony and the exhibits, place them against each other, use [their] common sense and try to come to a determination of whether or not the Commonwealth has proven ... that the defendant is guilty of the crimes beyond a reasonable doubt." The judge stated that the defendant need not "prove that there is some other explanation of the evidence." The judge stated, "[I]f there is any other reasonable explanation of the evidence of what [the jurors] find happened, if that has caused [the jurors] to have serious unanswered questions about the guilt of the defendant, then he must be given the benefit of the doubt and acquitted." The judge added reasonable doubt "means in simple language that before [the jurors could] convict a person of a crime, [they] must be sure, sure to a moral certainty." The judge stated that the standard of proof required "that, when the case [was] all over, no matter which way it goes, that the twelve [jurors should] be able to live with each other and [them]selves." The judge then restated that the reasonable doubt standard required "evidence which would enable ... jurors to live with [them]selves and with one another." Finally, the judge warned the jurors that the reasonable doubt instruction did not mean "anything based on emotion or sympathy."

Taken as a whole, these instructions adequately conveyed the meaning and content of the phrase "moral certainty." Indeed, the judge's emphasis of the need for the jurors to be "sure" accords with our requirement that jurors reach a subjective state of near certitude of the guilt of the accused. See Pinckney, supra at 344, 644 N.E.2d 973. Unlike the erroneous instructions in Cage, nothing the judge said suggested a "higher degree of doubt than is required for acquittal under the reasonable-doubt standard." Cage, supra at 41, 111 S.Ct. 328. Therefore, we conclude that a reasonable juror could not have used the instruction incorrectly. See Rosa, supra at 27, 661 N.E.2d 56. ⁷

Order denying motion for a new trial affirmed.

1 The defendant first unsuccessfully moved for a new trial in September, 1975, arguing that the trial judge erred in charging the jury by citing to the Commonwealth's evidence when distinguishing between murder in the first degree and murder in the second degree. The defendant then challenged his convictions before this court, arguing that the judge erred by: (1) citing to the Commonwealth's evidence in the jury instructions; (2) giving instructions which invited an emotional verdict; and (3) explaining to the jurors that the defendant must be acquitted if the jurors had "serious unanswered questions" about the defendant's guilt. We affirmed the defendant's conviction. See Commonwealth v. Therrien, 371 Mass. 203, 209, 355 N.E.2d 913 (1976). In December, 1976, the defendant unsuccessfully moved for a new trial, based on alleged ineffective assistance of counsel. In November, 1980, the defendant filed a third motion for a new trial, arguing that the jury instructions regarding malice were erroneous. The motion was denied in September, 1981, and a single justice of this court denied leave to appeal to the full court in 1983. In March, 1985, the defendant was denied habeas corpus relief by a Federal District Court. The First Circuit affirmed,...