Commonwealth v. Chase

• Decision Date: 08 December 2000
• Citation: 433 Mass. 293,741 NE 2d 59
• Parties: COMMONWEALTH v. CHARLES M. CHASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

433 Mass. 293

741 NE 2d 59

COMMONWEALTH v. CHARLES M. CHASE.

Supreme Judicial Court of Massachusetts, Bristol.

December 8, 2000.

January 29, 2001.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

David J. Nathanson for the defendant.

David Keighley, Assistant District Attorney, for the Commonwealth.

GREANEY, J.

The defendant was indicted on charges of murder in the first degree, G. L. c. 265, § 1; motor vehicle homicide, G. L. c. 90, § 24G; larceny of a motor vehicle, G. L. c. 266, § 28; and larceny of property with a value of more than $250, G. L. c. 266, § 30. Prior to trial, the defendant entered guilty pleas to the larceny charges.¹ A jury in the Superior Court convicted him of murder in the second degree on a theory of felony-murder (with larceny of a motor vehicle as the underlying felony) and motor vehicle homicide. After sentencing the defendant on the murder and larceny convictions, the judge ordered the motor vehicle homicide indictment dismissed as duplicative of the murder conviction. See Commonwealth v. Jones, 382 Mass. 387, 392-393 (1981). The defendant's conviction of murder in the second degree was affirmed on direct appeal by the Appeals Court. Commonwealth v. Chase, 42 Mass. App. Ct. 749 (1997).

The defendant filed a pro se motion for a new trial on the ground that his trial counsel had furnished him with ineffective assistance of counsel when counsel objected to the prosecutor's request that the jury be instructed on involuntary manslaughter as a lesser included offense of the charge of murder in the first degree. In a supplemental brief, filed after our decision in Commonwealth v. Woodward, 427 Mass. 659 (1998), the defendant also raised, for the first time, claims that the judge committed reversible error by failing to accede to the Commonwealth's request to instruct the jury on involuntary manslaughter, and by doing so without first conducting a colloquy with the defendant to ascertain whether he had waived his right to the instruction. The judge did not consider the latter claims, but denied the motion on the original ineffective assistance claim, without an evidentiary hearing. She concluded in her memorandum of decision that: "It is clear that defense counsel made a strategic decision in objecting to [an instruction to the jury on] the lesser included charge of [involuntary] manslaughter where there existed in this case, an additional indictment charging motor vehicle homicide. The charge of motor vehicle homicide is not a lesser included offense of murder but it clearly gave the jury the option of considering a much less serious offense borne out of the evidence presented at trial."² The defendant appealed from the order denying the motion, and he was assigned counsel to brief and argue the appeal. We granted his application for direct appellate review to consider the defendant's arguments that (1) the judge erred by not instructing, despite his defense counsel's objection, on involuntary manslaughter; (2) his trial counsel provided him with ineffective assistance of counsel by objecting to the prosecutor's request for the instruction without the defendant's consent; and (3) the judge erred by not independently engaging the defendant in a colloquy to determine whether he had voluntarily and intelligently waived his right to the instruction. We affirm the order denying the motion for a new trial.

1. The threshold issue is whether the defendant's failure on direct appeal to raise the issues he now raises constitutes a waiver. The defendant was represented on that appeal by new counsel, not trial counsel. A determination of the waiver issue establishes the legal standard under which we assess the defendant's present claims. We shall first summarize the evidence at trial and the events concerning the omitted instruction on involuntary manslaughter. Then, we shall proceed to decide the waiver issue and the merits.

(a) On October 22, 1991, the defendant and a companion, Roy Farias, travelled to a shopping mall in Dartmouth. There, the defendant broke into Albert Renauld's truck, broke the ignition, and started the engine. According to eyewitnesses, he accelerated quickly with the tires squealing. Renauld emerged from the mall, and began to run toward the driver's side door of his truck. The defendant drove directly toward Renauld without slowing down. Renauld was struck in the chest and stomach by the door of the truck, thrown into the air, and left lying on the ground. The defendant did not stop, and the truck sped out of the mall. Renauld died of head injuries the next day.

The defendant was questioned by a State trooper and an officer with the Dartmouth police department on November 7, 1991, while he was being held in the Dartmouth house of correction on an unrelated matter. The defendant admitted that he and Farias had driven to the mall intending to steal a truck. They were looking for tools to steal as well, and chose the victim's truck because it had tool boxes on its side. The defendant broke the truck's window, unlocked the door, entered, broke the ignition off with a claw hammer and pliers, and started the engine. As he began to drive across the parking lot, he saw someone running toward him. He told the police officer, "I had a gun. I'd have shot him. I wasn't going to stop." As the man kept coming toward him, he yelled, "Get the fuck out of the way." The man kept coming and swung a shopping bag at the truck. The defendant hit him with the left front quarter of the truck, and the man rolled backward hitting "what [the defendant] termed the rear view, [which the police interviewer] took to mean the side view mirror of the truck." The defendant then told the police, "The son of a bitch ... [h]e didn't have to stay in front of the truck," and "I just hit the fucking guy. I think he was the owner of the truck." After hitting the victim, the defendant accelerated and drove around the corner, where he met with Farias. An acquaintance of the defendant testified that, two days after the incident, he told her that when the truck's owner came running toward him, he "just gunned it" and ran the victim down. The defendant did not testify at trial.

With respect to evidence of involuntary manslaughter, we describe an alternate hypothesis, which a reasonable juror could have found to be true, although the hypothesis was not argued to the jury. The defendant was in the process of stealing a truck when Renauld ran up to the truck in an attempt to stop the theft of his vehicle. The defendant yelled, "Get the fuck out of the way," and began to drive away, at all times remaining in the right hand side of the road. The driver's side view mirror of the truck struck the victim when he ran into the middle of the road, and the victim was killed by the resulting fall. The defendant later told the police that "he wasn't going that fast and didn't know that he hit him that hard." No skid marks were found anywhere along the road where the collision occurred.

At the close of the evidence, the Commonwealth requested an involuntary manslaughter instruction, and the judge agreed that the evidence warranted the instruction. After the defendant's trial counsel objected to the instruction, however, the judge ruled that she would defer to defense counsel's strategic decision that the instruction not be given.

(b) The defendant waived the issues he now raises by not presenting them in his direct appeal. A defendant generally may not raise any ground in a motion for a new trial that could have been, but was not, raised at trial or on direct appeal. Commonwealth v. Pisa, 384 Mass. 362, 366 (1981), and cases cited. This requirement ensures the finality of convictions by eliminating piecemeal litigation, which would "unfairly consume public resources without any corresponding benefit to the administration of justice." Id. It is neither unreasonable nor unduly burdensome to require a defendant to advance his contentions, even those with constitutional ramifications, at the first opportune time. Murch v. Mottram, 409 U.S. 41, 45 (1972). "We cannot retry every criminal [case] on the basis of what might have been." Commonwealth v. Stout, 356 Mass. 237, 243 (1969). Thus, even when a claim is one of constitutional dimension, a defendant who has had a fair opportunity to raise it may not "belatedly invoke that right to reopen a proceeding that has already run its course."³ Commonwealth v. Amirault, 424 Mass. 618, 639 (1997).

The defendant argues that he did not waive his claim that he was entitled to an involuntary manslaughter instruction, because it was not until our decision in Commonwealth v. Woodward, 427 Mass. 659 (1998), a year after the Appeals Court affirmed his murder conviction, that we definitively held that, on request by the Commonwealth, a judge must instruct the jury on a lesser included offense that is warranted by the evidence, despite a defendant's objection to the instruction. See id. at 662-663. We disagree.

A defendant cannot be held to have waived a claim, constitutional or otherwise, that had no legal support at the time of his trial and appeal. DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980) (waiver not applicable to constitutional [or nonconstitutional] claim not sufficiently developed to afford defendant "genuine opportunity to raise his claim"). The doctrine of waiver, however, is not so narrow as to require a decision that is squarely on point before a claim is deemed sufficient. Commonwealth v. Amirault, supra at 643-644. The test is whether "the theory on which [a defendant's] argument is premised has been sufficiently developed [at the time of the defendant's trial and prior appeal or appeals] to put him on notice that the issue is a live issue." Id. at 639, quoting Commonwealth v. Bowler, 407 Mass. 304, 307 (1990). See DeJoinville v. Commonwealth, supra at 251.

The principles expressed in the Woodward decision were far from novel at the time...