Commonwealth v. Gunter

• Decision Date: 19 April 2011
• Docket Number: SJC–10733.
• Parties: COMMONWEALTHv.Paul GUNTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 480

945 N.E.2d 386

COMMONWEALTH

v.Paul GUNTER.

SJC–10733.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 9, 2010.Decided April 19, 2011.

James M. Doyle, Boston, for the defendant.Kathleen Celio, Assistant District Attorney, for the Commonwealth.Present: SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹SPINA, J.

The defendant was convicted of murder in the first degree on a theory of felony-murder, G.L. c. 265, § 1; armed assault in a dwelling with intent to commit a felony, G.L. c. 265, § 18A; and illegal possession of a firearm, G.L. c. 269, § 10 ( a ). We affirmed the murder and firearm convictions but vacated the armed assault in a dwelling conviction for the reason that, as the predicate felony supporting the felony-murder conviction, it was duplicative. Commonwealth v. Gunter, 427 Mass. 259, 260–261, 275–276, 692 N.E.2d 515 (1998). We describe in some detail below the course that the case has traveled since then. In short, after unsuccessfully seeking habeas corpus relief in the Federal courts, the defendant returned to the State courts and filed a motion for a new trial in the Superior Court. His motion was denied. The defendant then filed an application in the county court, pursuant to G.L. c. 278, § 33E, seeking leave to appeal from that ruling. A single justice of this court initially denied the application, but, on reconsideration, reserved and reported the case to the full court. The case is now before us pursuant to the reservation and report.

1. Background. The relevant facts, as detailed in our earlier opinion, are straightforward:

“The Commonwealth presented evidence that Gunter and several other individuals were involved in selling drugs out of an apartment in the Dorchester section of Boston. Gunter's role included paying the apartment residents, Rosalie Mitchell and Derek Sealy, a ‘rental fee’ in cash or in drugs for the use of the apartment. On March 21, 1991, three men entered the apartment and stole cocaine from one of the drug dealers affiliated with the operation. Gunter, Corey ‘Floyd’ Selby, Mark Edwards, and Larricia McConnico, a woman who had brought the thieves to the apartment on an earlier night and knew where they might be found, went looking for the thieves. Gunter drove the three to another apartment in Dorchester. Selby and Edwards carried loaded guns. Gunter remained in the car while the others went into that apartment. Admitted to the apartment, Selby and Edwards pushed Jack Berry, Jr., down the hall toward the kitchen. Berry was visiting Anthony Madden and Annette Gilbert, the apartment residents. While Edwards held Berry, Madden, Gilbert, and Gwendolyn McKenzie, Gilbert's friend, in the kitchen at gunpoint, Selby searched the apartment and the other two floors of the residence. Selby failed to find either the thieves or the stolen drugs. Edwards and McConnico, followed by Selby, then left, but, as Berry was closing the door behind them, Selby pushed the door back open, said ‘give this message to [the thieves],’ and fatally shot Berry. They ran back to the vehicle where Gunter was waiting. Edwards testified that, when he told Gunter that Selby had shot someone, Gunter said words to the effect that ‘nobody will rob us no more.’ ” (Footnotes omitted.)

Commonwealth v. Gunter, supra at 261–262, 692 N.E.2d 515.

The procedural history of the case is more complicated, as we shall now describe, starting with the defendant's direct appeal. While the direct appeal was pending before us, as part of our plenary review of the case pursuant to G.L. c. 278, § 33E, we raised on our own initiative, and asked the parties to file supplemental briefs on, the following issue: “Whether, in light of the defendant's conviction as a joint venturer of murder in the first degree on a theory of felony-murder, where the underlying felony was armed assault in a dwelling with intent to commit a felony, G.L. c. 265, § 18A, the felony is sufficiently ‘independent’ of the murder itself to justify the first degree murder conviction.” Id. at 271, 692 N.E.2d 515. After receiving and reviewing the parties' supplemental briefs (and amicus briefs, see id. at 261 n. 1, 692 N.E.2d 515) on that question, we concluded that the armed assault on the homicide victim, Berry, was not sufficiently separate from his murder, and therefore could not properly serve as a basis for the felony-murder conviction. Id. at 271–274, 692 N.E.2d 515. We also determined, however, that the Commonwealth had presented ample evidence of assaults on three other individuals—Madden, Gilbert, and MacKenzie—that supported the felony-murder conviction, and we therefore held that there was no substantial likelihood of a miscarriage of justice in the defendant's conviction. Id. at 274, 692 N.E.2d 515.²

After we issued our opinion, the defendant filed a lengthy petition for rehearing. See Mass. R.A.P. 27, as amended, 410 Mass. 1602 (1991). He argued, among other things, that our decision denied him his right to due process by sustaining the felony-murder conviction on the basis of the assaults against Gilbert, Madden, and McKenzie, because the jury had not been asked to consider those assaults in deciding whether to find the defendant guilty of felony-murder. He also argued that he received ineffective assistance of counsel because his trial counsel had failed to challenge the theory, subsequently adopted in our decision, that the assaults on Gilbert, Madden, and McKenzie could form the basis of the felony-murder conviction. We denied the petition.

The defendant next sought habeas corpus relief in the Federal courts. Although a judge in the District Court initially granted the writ, the United States Court of Appeals for the First Circuit reversed that decision. See Gunter v. Maloney, 291 F.3d 74 (1st Cir.2002). The First Circuit noted that our raising the merger doctrine issue on our own initiative as part of the plenary review of the case did not excuse the defendant's failure to raise it himself, and that our determination that the defendant had procedurally defaulted on the issue (i.e., waived the issue by not raising it) constituted an adequate and independent State ground for our decision. Id. at 79–80. ^,34 The court also considered the defendant's argument, as a cause for the procedural default, that he received ineffective assistance of counsel. See id. at 81. The court held that where he had raised that issue for the first time in his petition for rehearing, he had not exhausted, in the State courts, his ineffectiveness claim. Id. (“Raising a claim for the first time to the state's highest court on discretionary review is not fair presentation for purposes of exhaustion”). See generally Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir.1997) (“the exhaustion principle holds, in general, that a federal court will not entertain an application for habeas relief unless the petitioner first has fully exhausted his state remedies in respect to each and every claim contained within the application”). Finally, the First Circuit held that even if the claim was exhausted, the defendant still had no “habeas-worthy constitutional claim,” and expressed its doubt that the defendant could meet the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), such that any ineffective assistance of counsel would constitute cause for the procedural default (of the merger issue). Gunter v. Maloney, supra at 82–83 & n. 2.

After the First Circuit dismissed the defendant's habeas corpus petition, he filed a motion for a new trial in the Superior Court. He alleged that he received ineffective assistance of both trial and appellate counsel because his attorneys had failed to recognize and challenge the legal adequacy of the felony-murder conviction (i.e., they did not raise the merger issue) and to recognize and defend against any so-called bystander theory of felony-murder. He also argued that, in this context, his trial counsel should have raised—so that the jury could have considered—the question whether Selby shot Berry while engaged in the joint venture to look for the thieves and stolen drugs, or as an act that was wholly separate and apart from the joint venture. Additionally, he argued that his rights to a jury trial and to due process were violated because the jury were never presented with the opportunity to consider whether the shooting of Berry occurred while the defendant, as a joint venturer, was engaged in the so-called bystander assaults.

The motion for a new trial was denied by a judge other than the trial judge, who had since retired. The judge ruled that this court had already considered the issues being raised by the defendant. The defendant thereafter, pursuant to G.L. c. 278, § 33E, filed an application in the county court for leave to appeal from the adverse ruling. A single justice of this court initially denied the application and the defendant sought to appeal from that ruling to the full court. We dismissed his appeal. Commonwealth v. Gunter, 456 Mass. 1017, 924 N.E.2d 687 (2010). As stated in our opinion—indeed, as the defendant himself recognized—the decision of a single justice, acting as a gatekeeper pursuant to G.L. c. 278, § 33E, is final and unreviewable. See id., and cases cited. We noted that the only remedy for someone in the defendant's position was to seek reconsideration from the single justice, id. at 1018, 924 N.E.2d 687, which the defendant then proceeded to do. On reconsideration, the single justice reserved and reported the case to the full court.

In reserving and reporting the entire case, the single justice did not himself decide the threshold question raised by the gatekeeper application, whether the defendant is pursuing a “new and substantial” issue. Rather, the single justice indicated that the parties were to brief that question as well as the substantive merits of the underlying issues before the full court. Consistent with the...