DeJoinville v. Com.

• Decision Date: 04 August 1980
• Citation: 408 N.E.2d 1353,381 Mass. 246
• Parties: Dennis M. DeJOINVILLE v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1353

408 N.E.2d 1353

381 Mass. 246

Dennis M. DeJOINVILLE v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1980.

Decided Aug. 4, 1980.

Ellen A. Howard, Boston, for petitioner.

Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The petitioner, Dennis M. DeJoinville, was convicted of murder in the second degree and arson by a jury of the Superior Court in Worcester County on May 23, 1973. He was sentenced on the murder indictment to life imprisonment at the Massachusetts Correctional Institution at Walpole and on the arson indictment to a term of three to five years to be served concurrently. The judgments were affirmed by the Appeals Court on March 8, 1976. Commonwealth v. DeJoinville, 4 Mass.App. 790, 343 N.E.2d 431 (1976). A petition for writ of error was filed in the county court on December 21, 1978. The case was reserved and reported here without decision on the original petition and on a substitute petition for a writ of error filed May 22, 1979.

We briefly summarize the pertinent facts. The petitioner's uncle, Charles DeJoinville, died in a fire at his home on December 30 1972. In a pretrial statement, which was admitted in evidence at trial, the petitioner admitted setting the fire. The petitioner testified at trial, however, that he had no recollection of his actions on the evening of December 30, 1972. There was testimony that the petitioner and his uncle had a good relationship, that they frequently spent time together, and that they had been drinking together for much of the day on which the fire occurred.

The petitioner's sole assignment of error relates to a portion of the judge's charge in which he instructed the jury that a person "is presumed to have intended the natural or probable consequences of his voluntary acts . . . in the absence of evidence to the contrary." ¹ The petitioner contends that this instruction denied him due process of law because it shifted the burden of proof on the issue of intent to him and relieved the Commonwealth of its burden of proving such element of the crime charged beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

The petitioner did not take an exception to any portion of the charge at trial, nor did he raise the issue he argues here in his appeal before the Appeals Court. Commonwealth v. DeJoinville, 4 Mass.App. 790, 343 N.E.2d 431 (1976). A writ of error cannot be used to review issues that could have been raised at trial and thereafter on appeal. LeBlanc v. Commonwealth, 363 Mass. 171, 173, 293 N.E.2d 260 (1973). This rule, however, "does not bar the petitioner from raising claims whose constitutional significance was not established until after the petitioner's trial and appeal." Id. at 173-174, 293 N.E.2d at 261. See Lannon v. Commonwealth, --- Mass. ---, --- ^a, 400 N.E.2d 862 (1980). ² Thus, prior to reaching the merits of the petitioner's claim, we must determine whether the constitutional theory upon which the petitioner now relies is a theory which was sufficiently developed at the time of the petitioner's trial ³ and appeal to afford the petitioner a genuine opportunity to raise his claim.

The plaintiff's claim that the "presumed intent" charge deprived him of due process of law is built, in part, upon principles enunciated in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-1073, 25 L.Ed.2d 368 [381 Mass. 249] (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); ⁴ and, in part, upon principles enunciated in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), and United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). ⁵ The United States Supreme Court also relied upon the principles enunciated in these cases in holding unconstitutional a presumed intent charge similar to the charge at bar. Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979). ⁶ The Court stated: "Because David Sandstrom's jury may have interpreted the judge's instruction as constituting either a burden-shifting-presumption like that in Mullaney, or a conclusive presumption like those in Morissette and United States Gypsum Co., and because either interpretation would have deprived defendant of his right to the due process of law, we hold the instruction given in this case unconstitutional." Sandstrom, supra.

In reaching this result in Sandstrom, the Court discussed the interface between burden-shifting principles and conclusive presumption principles: "As in Morissette and United States Gypsum Co., a conclusive presumption in this case would 'conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime,' and would 'invade (the) factfinding function' which in a criminal case the law assigns solely to the jury. . . . Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and 'ordinary consequences' of defendant's action), Sandstrom's jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove 'beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged,' 397 U.S., at 364, 90 S.Ct., at 1073 and defendant was deprived of his constitutional rights as explicated in Winship.'' Sandstrom, supra, at 523, 99 S.Ct., at 2459.

We believe that in so far as the teaching of Sandstrom relative to a "presumed intent" charge draws upon not only the burden-shifting principles of Winship and Mullaney, but also the conclusive presumption principles of Morissette and United States Gypsum Co., that the Mullaney decision alone does not, as the Commonwealth urges, provided a benchmark for determining whether the petitioner's claim is one "whose constitutional significance was not established until after the petitioner's trial and appeal." LeBlanc, supra 363 Mass. at 173-174, 293 N.E.2d at 261. ⁷ It is the Sandstrom case, decided June 18, 1979, which sets forth the constitutional theory upon which the petitioner now relies. The first case decided by this court where we reversed the judgment of the trial court on the ground that a "presumed intent" charge denied the defendant due process of law was Commonwealth v. Callahan, --- Mass. --- ^b, 406 N.E.2d 385 (1980). ⁸ While other cases decided by this court prior to Sandstrom provide some guidance on the issue, none of the cases decided prior to the petitioner's appeal on March 8, 1976, provides sufficient guidance so that the petitioner can be said to have had a genuine opportunity to raise his claim at that time. See, e. g., Commonwealth v. Gagne, 367 Mass. 519, 326 N.E.2d 907 (1975), petition for habeas corpus denied sub nom. Gagne v. Meacham, 423 F.Supp. 1177 (D. Mass. 1976), Gagne v. Commonwealth, --- Mass. --- ^c, 377 N.E.2d 919 (1978), petition for habeas corpus denied sub nom. Gagne v. Meachum, 460 F.Supp. 1213 (D. Mass. 1978), aff'd 602 F.2d 471 (1st Cir. 1979), cert. denied, 444 U.S. 992, 100 S.Ct. 524, 62 L.Ed.2d 422 (1980). ⁹ We, therefore, conclude that the petitioner's failure to raise the instant claim during his trial and appeal does not preclude him from raising the claim here. See LeBlanc, supra 363 Mass. at 173-174, 293 N.E.2d 260. See also Commonwealth v. Hughes, supra at --- n.1 (Liacos, J., dissenting) ^d, 404 N.E.2d 1246 citing Gibson v. Commonwealth, --- Mass. ---, --- ^e, 387 N.E.2d 123 (1979).

We now turn to the merits of the petitioner's claim. The petitioner first argues that the judge's charge, ¹⁰ like the charge in Sandstrom, could have been viewed by the jury as establishing a conclusive presumption, "which testimony could not overthrow (and which would) effectively eliminate intent as an ingredient of the offense." Sandstrom, supra, 442 U.S. at 522, 99 S.Ct. at 2458, quoting from Morissette, supra, 342 U.S. at 275, 72 S.Ct. at 256. Second, the petitioner argues that the judge's charge, like the Sandstrom charge, could have been viewed by the jury as establishing a mandatory presumption, "which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant." Sandstrom, supra, 442 U.S., at 524, 99 S.Ct., at 2459.

We agree with the petitioner that a charge which the jury could reasonably have interpreted as establishing either a conclusive presumption ¹¹ or a mandatory presumption ¹² cannot stand. As the Court stated in Sandstrom, supra, "a conclusive presumption in this case would 'conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime,' and would 'invade (the) factfinding function' which in a criminal case the law assigns solely to the jury." Sandstrom, supra at 523, 99 S.Ct. at 2459, quoting from Morissette, supra, 342 U.S. at 275, 72 S.Ct. at 256 and United States Gypsum Co., supra, 438 U.S. at 446, 98 S.Ct. at 2878. A mandatory presumption in this case would be constitutionally deficient because the jury "could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state. Such a presumption was found constitutionally deficient in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)." Sandstrom, supra, 442 U.S. at 524, 99 S.Ct. at 2459. See Commonwealth v. Callahan, supra at --- - --- ^f, 406 N.E.2d 385.

However, there is no constitutional infirmity in a charge which creates only a permissive presumption, or as it is commonly termed, an inference. ¹³ "An inference of a necessary element of a crime from proof of another fact...