Commonwealth v. Randolph

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation438 Mass. 290,780 NE 2d 58
Decision Date19 December 2002

438 Mass. 290
780 NE 2d 58


Supreme Judicial Court of Massachusetts, Suffolk.

September 4, 2002.

December 19, 2002.


438 Mass. 291
Mary T. Rogers for the defendant

Kajal K. Chattopadhyay, Assistant District Attorney, for the Commonwealth.


In 1986, the defendant was convicted by a jury of murder in the first degree based on deliberate premeditation. He was also convicted of armed assault in a dwelling with intent to commit a felony and assault and battery by means of a dangerous weapon. We affirmed his convictions, denied relief after a review of the entire record pursuant to G. L. c. 278, § 33E, and affirmed the denial of a motion for a new trial.1 Commonwealth v. Randolph, 415 Mass. 364 (1993). In January, 2000, the defendant filed a second motion for a new trial challenging his conviction on multiple grounds, which motion was denied.2 The defendant sought leave to appeal from the denial of the motion by petitioning a single justice of this court pursuant to the "gatekeeper" provision of G. L. c. 278, § 33E. A single justice allowed the defendant's petition with regard to allegations of possible error in the trial judge's instructions to the jury on murder (in both the first and second degrees), voluntary manslaughter, and intoxication, including questions of waiver and ineffective assistance of counsel relating to those instructions. We now affirm the denial of the motion.3

438 Mass. 292
I. Facts.

On August 2, 1984, Brian Golden and several other residents of Vallar Road in the East Boston section of Boston were involved in a dispute with the defendant and his brother, Leroy, about their reckless driving in the neighborhood. Shortly thereafter, the defendant threw a knife that pierced Brian Golden's eye. Golden died as a result of his injury. The sequence of events connecting these two incidents is hotly disputed, and, because this dispute is central to our resolution of the defendant's current claims and was not described in his original appeal, we detail both the Commonwealth's and defendant's versions of the facts.

A. The Commonwealth's Case.

Linda Golden (victim's wife) testified that, shortly after the confrontation between the neighbors and the defendant and his brother, the latter two individuals burst into the Goldens' second-floor apartment armed with a bat and a board.4 The defendant and his brother attacked Linda Golden, striking her repeatedly on the back and legs with the bat and board while threatening to kill her. Brian Golden eventually arrived in response to his wife's screams for help and chased the attackers out of his apartment, at some point arming himself with a kitchen knife. The defendant and his brother (and one or two other relatives, although the evidence is conflicting as to who arrived when) retreated up to the third floor where their mother lived. Some members of the Randolph family, including the defendant, threw household objects down toward the Goldens, who were still on the second-floor landing. Shortly afterward the defendant threw the knife that inflicted the fatal wound.

B. The Defendant's Version.

According to the defendant's witnesses, the defendant, accompanied by his brother, Leroy, and his teenaged nephew, "Little Leroy," were attempting to reach the third floor. As they

438 Mass. 293
climbed past the second-floor landing, Brian Golden emerged from his doorway, grabbed Leroy, and proceeded to drag him inside the Goldens' apartment. Leroy managed to escape with the help of his relatives, but not before Brian Golden had punched him several times in the face. Next, according to the defendant's version of events, Brian Golden grabbed a knife (or, in one account, a bat) and proceeded to chase the defendant and members of his family up toward the third floor, all the while threatening to kill them. The defendant, his brother, and his nephew all threw objects down the stairs to discourage pursuit. One of these objects was the knife that killed Brian Golden

II. Defendant's Motion for a New Trial.

A. Waiver.

The defendant challenges the judge's jury instructions on murder in the first and second degrees, voluntary manslaughter, and intoxication.5 The defendant did not object to these instructions at trial, and did not challenge them on direct appeal. Commonwealth v. Randolph, supra at 365. His claims are therefore waived. See Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000), and cases cited ("If a defendant fails to raise a claim that is generally known and available at the time of trial or direct appeal or in the first motion for postconviction relief, the claim is waived"); Mass. R. Crim. P. 30 (c) (2), 378 Mass. 900 (1979).6 A finding of waiver does not end the analysis, however. All claims, waived or not, must be considered.7 The difference

438 Mass. 294
lies in the standard of review that we apply when we consider the merits of an unpreserved claim

At its core, the waiver doctrine states that a defendant must raise a claim of error at the first available opportunity. This requirement serves a dual purpose: it protects society's interest in the finality of its judicial decisions, Commonwealth v. Amirault, 424 Mass. 618, 637 (1997) ("The regular course of justice may be long, but it must not be endless"), and promotes judicial efficiency, Commonwealth v. Pisa, 384 Mass. 362, 366 (1981).

Although the public's interest in the finality of criminal convictions is weighty, it is not always paramount. "[W]e cannot rid ourselves by process alone of the possibility of error and of grave and lingering injustice." Commonwealth v. Amirault, supra. The doctrine of waiver incorporates a number of exceptions, which the Appeals Court, in a decision by Justice Armstrong, suggested may be divided into five categories. See Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 14-19 (1986). The first exception is review under G. L. c. 278, § 33E. When reviewing a conviction of murder in the first degree we are obligated to consider all issues apparent from the record, whether preserved or not, in order to determine whether there is a substantial likelihood of a miscarriage of justice in the verdict.8 See Commonwealth v. Ciampa, 406 Mass. 257, 267-268 (1989).

The second exception is said to apply when the error creates "a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). This is actually not an exception, but a default standard of review. In all cases where a defendant fails to preserve his claim for review we must still grant relief when "we are left with uncertainty that the

438 Mass. 295
defendant's guilt has been fairly adjudicated." Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. Chase, 433 Mass. 293, 299 (2001). The third is known as the "clairvoyance" exception, and applies to errors of a constitutional dimension "when the constitutional theory on which the defendant has relied was not sufficiently developed at the time of trial or direct appeal to afford the defendant a genuine opportunity to raise his claim at those junctures of the case." Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). In these circumstances we review the claim as if it had been properly preserved. Id.

A fourth exception comes into play when a defendant alleges (as this defendant has done) that his failure to preserve an issue stems from ineffective assistance of counsel, whether at trial or on appeal. See Commonwealth v. Egardo, 426 Mass. 48, 49-50 (1997). We have, at times, reviewed such claims under the standard of review normally applicable to ordinary ineffective assistance of counsel claims, rather than applying the "substantial risk" standard discussed previously.9 Id. at 52. Breese v. Commonwealth, 415 Mass. 249, 252 (1993).

The arguably more lenient standard of review for waived claims alleging ineffective assistance of counsel has the potential to produce awkward results. Because virtually any omitted objection or argument can, at least on its face, be attributed to ineffective assistance of counsel, a wise defendant could in most cases opt for a more favorable standard of review simply by couching his waived claim in the language of ineffective assistance.10 Our recent opinions have eliminated this problem by equating the ineffective assistance of counsel standard to the substantial risk standard in cases where waiver stems from an

438 Mass. 296
omission by defense counsel. See Commonwealth v. Azar, supra at 686; Commonwealth v. Peters, 429 Mass. 22, 31 n.12 (1999) ("These two doctrines, in a case like this, are virtually coextensive ..."). Thus, when a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel, as this defendant has, we do not evaluate the ineffectiveness claim separately. If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice — ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not.

The final exception, referred to as the "resurrection" exception, arises when the trial judge, on a motion for a new trial filed and considered before direct appeal, decides to consider an issue on the merits despite the defendant's failure to raise it at the proper time. In these circumstances we consider the issue as if it had been properly preserved. See Commonwealth v. Hallet, 427 Mass. 552, 554-555 (1998).

To summarize, when a trial judge addresses an unpreserved claim in a preappeal motion for a new trial, or when we determine that the "clairvoyance" exception applies because the state of the law was such that the defendant had no genuine opportunity to challenge the issue during prior proceedings, we review the claim as if it had been properly preserved. When we review an unpreserved claim on...

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