Commonwealth v. Smith

• Decision Date: 03 August 2011
• Docket Number: SJC–10827.
• Citation: 460 Mass. 318,951 N.E.2d 322
• Parties: COMMONWEALTHv.Edwin F. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 318

951 N.E.2d 322

COMMONWEALTH

v.Edwin F. SMITH.

SJC–10827.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued May 5, 2011.Decided Aug. 3, 2011.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.David Keighley, Fairhaven, for the defendant.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.SPINA, J.

The defendant was convicted in 1995 of murder in the first degree on the theory of extreme atrocity or cruelty. That conviction was affirmed on appeal. See Commonwealth v. Smith, 426 Mass. 76, 686 N.E.2d 983 (1997). In 2009, the defendant filed a motion for a new trial that challenged, inter alia, the instruction on extreme atrocity or cruelty, and the instruction on reasonable provocation as it relates to both murder and manslaughter. The judge, who also was the trial judge, did not think the issues had been carefully considered on plenary review under G.L. c. 278, § 33E, and granted the motion for a new trial. The Commonwealth filed an application pursuant to G.L. c. 278, § 33E, for leave to appeal. The single justice granted leave to appeal. We now vacate the order granting the defendant's new trial.

1. Background. The facts set forth in the court's opinion on the defendant's direct appeal are summarized as follows, supplemented by facts in the trial record that the jury could have found. Id. We reserve other details for discussion of specific issues. The defendant and the victim had been in a dating relationship for about six weeks at the time of the murder. They were not living together. On the afternoon of May 20, 1994, they went to the house of a friend of the defendant and to some bars, where the defendant consumed both alcohol and cocaine. At one point he walked outside one bar and discovered the victim in a car engaged in oral sex with another man. A fight ensued between the men. The defendant and the victim then went to the defendant's apartment in Brockton.

Later that night the defendant went out alone. Two women he knew noticed scratches on his face. When asked about the victim, he explained that she had passed out in his apartment. Early the next morning he was talking with some people from his apartment building. When they asked about the victim, he said she was “home passed out.”

On the afternoon of May 21, 1994, the defendant spoke with his sister and told her that he saw the victim having oral sex with another man, that he fought with the man, and that after he and the victim returned to his apartment, he choked her. He also said he checked her for a pulse. He told one of his brothers a similar version of events, but added that the victim was at his apartment and he feared something might be wrong with her. At about 6:00 p.m. that day the defendant's brother flagged down a Brockton police officer, directed him to the defendant's apartment, and let him in. The victim's body was in the bedroom. The cause of death was manual strangulation.

At 6:10 p.m. on May 21, 1994, the defendant walked into the Brockton police station and told police he was there to “confess” to the murder of “his girl friend down at 664 Warren Avenue.”

2. Standard of review. A brief discussion of plenary review and the gatekeeper provision of G.L. c. 278, § 33E, is in order. It is not uncommon for a Superior Court judge considering a motion for a new trial in a capital case, after this court already has affirmed the defendant's conviction of murder in the first degree in the direct appeal, to reject summarily any basis for the motion that could have been raised in the direct appeal or considered on plenary review. Indeed that is a typical approach. See, e.g., Commonwealth v. Lao, 450 Mass. 215, 216 n. 1, 877 N.E.2d 557 (2007), S.C., 460 Mass. 12, 948 N.E.2d 1209 (2011). A judge acting in this fashion would be mindful that, in hearing the direct appeal, this court would have already provided the defendant with plenary review of the appeal, as we are required to do under § 33E. The statute imposes on this court an obligation to review the entire record of the case, a most solemn obligation warranted by the infamy of the crime and the severity of the sentence. We are charged with considering “the whole case, [on] the law and the evidence,” G.L. c. 278, § 33E, to ensure that there has been no substantial likelihood of a miscarriage of justice and that no other result is more consonant with justice. Toward that end we consider not only the preserved and unpreserved claims of error argued by the defendant on appeal, but also other grounds for reversal or a reduction of the verdict that we may discover as a result of our independent review of the entire record. See generally Commonwealth v. Angiulo, 415 Mass. 502, 508–509, 615 N.E.2d 155 (1993); Dickerson v. Attorney Gen., 396 Mass. 740, 741–742, 743–744, 488 N.E.2d 757 (1986), and cases cited; Commonwealth v. Cole, 380 Mass. 30, 38–39, 402 N.E.2d 55 (1980), and cases cited. See also Commonwealth v. Wright, 411 Mass. 678, 681–682 & n. 1, 584 N.E.2d 621 (1992); Commonwealth v. Ciampa, 406 Mass. 257, 267–269, 547 N.E.2d 314 (1989). Given the thoroughness of this unique form of review contemplated by the statute, it should be a very rare situation where, following the direct appeal, relief is granted based on a claim of error that either was or could have been raised at the trial or in the direct appeal. The judge in this case thought this to be such a situation, but for reasons explained in Parts 3 and 4 below, we conclude that it is not. ¹

Moreover, in a capital case, issues raised in a postappeal motion for a new trial that were or could have been raised at trial or in the direct appeal are to be measured by the substantial risk of a miscarriage of justice standard. We have said that “[e]rrors of this magnitude are extraordinary events and relief is seldom granted,” Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002), citing Commonwealth v. Amirault, 424 Mass. 618, 646–647, 677 N.E.2d 652 (1997), and that “[s]uch errors are particularly unlikely where, as here, the defendant's conviction ... has undergone the exacting scrutiny of plenary review under § 33E.” Commonwealth v. Randolph, supra. See Commonwealth v. Drew, 447 Mass. 635, 638–639, 856 N.E.2d 808 (2006), cert. denied, 550 U.S. 943, 127 S.Ct. 2269, 167 L.Ed.2d 1106 (2007).²

If a motion for a new trial is denied in the trial court, the defendant cannot appeal as a matter of right. The statute, in recognition of the fact that the defendant already has received plenary review in the direct appeal, states that “no appeal shall lie from the decision ... upon such motion unless the appeal is allowed by a single justice of [this] court on the ground that it presents a new and substantial question which ought to be determined by the full court.” G.L. c. 278, § 33E. “In this manner, a full quorum of the Supreme Judicial Court is spared the task of hearing frivolous or duplicative claims.” Dickerson v. Attorney Gen., supra at 744–745, 488 N.E.2d 757. See Commonwealth v. Gunter, 459 Mass. 480, 485–489, 945 N.E.2d 386 (2011). Likewise, when a motion for a new trial is allowed, the Commonwealth has no automatic right of appeal. It too is required to obtain leave from a single justice gatekeeper before it may prosecute an appeal. Commonwealth v. Francis, 411 Mass. 579, 582–585, 583 N.E.2d 849 (1992). In evaluating an application by the Commonwealth for leave to appeal from allowance of a motion, however, the single justice's primary focus should be on the meritoriousness or “substantiality” of the Commonwealth's position on appeal and less on the newness of the underlying issue. See id. at 583–585, 583 N.E.2d 849; Commonwealth v. Lanoue, 409 Mass. 1, 8, 563 N.E.2d 1367 (1990) (O'Connor, J., concurring). It would make little sense to deny the Commonwealth an opportunity for appellate review if it appears that the judge below erred or abused her discretion in granting a new trial on an issue that was not, technically speaking, new.

Regardless of the nuances of the “new and substantial” standard and its application in different contexts, the court in the past has expressed confidence—and we remain confident today—that single justices faced with gatekeeper applications under § 33E will allow cases to proceed to the full court in all meaningful matters (as the single justice in this case has done), and will correctly screen out those that do not warrant another appeal. See Commonwealth v. Francis, supra at 584–585, 583 N.E.2d 849 (“We remain confident that a single justice will allow those appeals which warrant review by the full court”); Leaster v. Commonwealth, 385 Mass. 547, 550, 432 N.E.2d 708 (1982) (“We have every confidence that the single justices in all such cases will allow access to the full court in meaningful matters and, similarly, will bar further proceedings in matters which do not meet the ‘new and substantial’ test of § 33E”). See also Commonwealth v. Latimore, 423 Mass. 129, 140, 667 N.E.2d 818 (1996) (Wilkins, J., concurring). And the single justice's decision, whether it is to permit or prohibit an appeal, is final and unreviewable. Napolitano v. Attorney General, 432 Mass. 240, 241, 733 N.E.2d 80 (2000), and cases cited. See Leaster v. Commonwealth, supra at 549–550. See also, e.g., Commonwealth v. Scott, 437 Mass. 1008, 770 N.E.2d 474 (2002) (dismissing purported appeal from single justice's denial of gatekeeper application pursuant to G.L. c. 278, § 33E).

The single justice having allowed the Commonwealth's application for leave to appeal here, we now turn to the merits of the appeal.

3. Instruction on extreme atrocity or cruelty. The jury were instructed that they could consider certain factors (set forth in Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 [1983] ) when deciding if murder was committed with extreme atrocity or cruelty. However, they were further instructed that they were not limited to those...