Mains v. Commonwealth

• Decision Date: 05 October 2000
• Citation: 433 Mass. 30,739 NE 2d 1125
• Parties: ROBERT MAINS v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

433 Mass. 30

739 NE 2d 1125

ROBERT MAINS v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

October 5, 2000.

December 13, 2000.

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

Matthew S. Robinowitz for the defendant.

Karen A. Palumbo, Assistant District Attorney, for the Commonwealth.

John F. Palmer, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

ABRAMS, J.

At issue is whether Robert Mains (defendant) waived his claim challenging the reasonable doubt instructions at his trial in 1974. See Commonwealth v. Mains, 374 Mass. 733 (1978). A single justice of this court allowed the defendant's application for leave to appeal from an order denying his fifth motion for a new trial on two issues: (1) whether the defendant waived his claim challenging the trial judge's reasonable doubt instructions in light of Cage v. Louisiana, 498 U.S. 39 (1990), and (2) if the defendant did not waive this claim, whether the instructions require a new trial. We conclude that the defendant has waived this claim. Thus, we do not reach the merits of the defendant's challenge to the jury instructions.

1. Background. The defendant was convicted on charges of murder in the first degree and unlawfully carrying a firearm. The defendant's first motion for a new trial, filed in 1974, asserted that the verdict was against the weight of the evidence and contrary to law. In 1976, the defendant filed a second motion for a new trial, claiming ineffective assistance of counsel, prosecutorial misconduct, and newly discovered evidence. Both motions were denied by a judge in the Superior Court, and the appeals from those denials were consolidated with the defendant's direct appeal to this court. A recitation of the facts of that case can be found in Commonwealth v. Mains, 374 Mass. 733 (1978), in which this court found no error and affirmed the judgment of conviction.

In 1983, the defendant filed his third motion for a new trial,¹ contending, among other things, that the trial judge's instruction on reasonable doubt did not adequately communicate to the jury the high degree of certainty required for conviction. The third motion was denied. The defendant sought leave to appeal from the denial of the third motion from a single justice of this court. See G. L. c. 278, § 33E. The single justice denied the defendant's request for leave to appeal.

In 1997, the defendant filed his fourth motion for a new trial, raising for the first time his contention that the reasonable doubt instructions were defective because the term "moral certainty" was used without sufficient accompanying clarification. See Victor v. Nebraska, 511 U.S. 1 (1994) (use of "moral certainty" language reversible error unless coupled with language that lends content and meaning to phrase); Cage v. Louisiana, supra at 41 (jury instructions which included "moral certainty" language suggested "higher degree of doubt than is required under the reasonable doubt standard"); Commonwealth v. Pinckney, 419 Mass. 341 (1995) (reversal of conviction of murder in first degree and rape based on flawed "moral certainty" instruction). The fourth motion was denied by a judge in the Superior Court. The defendant then timely filed a notice of appeal, but he did not at any point prior to filing his fifth motion for a new trial seek leave from the single justice to proceed with the appeal from the denial of his fourth motion for a new trial.

The defendant's fifth motion for a new trial, also denied by a judge in the Superior Court, and the subject of this appeal, was filed on May 5, 1998. The motion again raised the moral certainty language issue. The motion judge denied the motion, determining first that the law on the issue was sufficiently developed, at a minimum, at the time of the defendant's 1997 motion for a new trial. The judge then discussed the adequacy of the instructions "in the interest of finality." The judge determined that the law on the issue was sufficiently developed for appeal to a single justice at the time of the denial of the defendant's fourth motion. The judge thus concluded that the defendant had waived the moral certainty language issue by failing to pursue that appeal.

2. Waiver. Appeal of postconviction motions arising from conviction of murder in the first degree is governed by G. L. c. 278, § 33E.²Rodwell v. Commonwealth, 432 Mass. 1016, 1017 (2000), citing Commonwealth v. Francis, 411 Mass. 579, 582 (1992). A "new and substantial question" is required. Commonwealth v. Ambers, 397 Mass. 705, 707 (1986). The single justice noted that we previously have held that incorrect use of moral certainty language may present an error in reasonable doubt instructions which may go to the fundamental fairness of the proceedings. "A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards. See Sullivan v. Louisiana, 508 U.S. 275, 281-282 (1993)." Commonwealth v. Pinckney, supra at 342.³

The defendant argues that he did not have a "genuine opportunity," DeJoinville v. Commonwealth, 381 Mass. 246, 251 (1980), to raise a moral certainty claim until after the United States Supreme Court's 1990 decision in Cage v. Louisiana, supra,

and its 1994 decision in Victor v. Nebraska, supra. Thus, he asserts he did not waive this claim. We agree that he did not waive that claim in his first two motions for a new trial.

In 1997, the defendant filed his fourth motion for a new trial. The defendant's motion was denied. The defendant filed a notice of appeal but he never sought leave to appeal from the denial of his fourth motion from the single justice (as he had from the denial of his third motion). By 1997, the theory on which the defendant now relies was thoroughly developed. See Commonwealth v. Crawford, 430 Mass. 683, 689 (2000) ("The test for waiver is whether the theory on which the defendant's argument rests has been sufficiently developed to put him on notice that the issue is a live issue that could have been raised in his [previous] motion"). See also Lykus v. Commonwealth, 432 Mass. 160, 163 (2000), quoting Commonwealth v. Pisa, 384 Mass. 362, 365-366 (1981) ("Section 33E `requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available'"); Rodwell v. Commonwealth, supra at 1018 ("If a defendant fails to raise a claim that is generally known and available at the time of ... [a] motion for postconviction relief, the claim is waived"). The issue had been fully developed by the time of the defendant's fourth motion, and the defendant himself chose not to appeal. The defendant's conduct constitutes a waiver.⁴

In Commonwealth v. Burnett, 428 Mass. 469, 473 (1998), which also concerned an appeal from the denial of postconviction relief where the conviction had previously received plenary review under G. L. c. 278, § 33E, we reaffirmed that "the defendant is not entitled to our determination whether the [jury] instructions were erroneous if the issues presented could have been raised at trial or on direct appeal but were not." Id., quoting Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). The procedural posture of the instant case differs from Burnett only to the extent that "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." Commonwealth v. Burnett, supra,

quoting Commonwealth v. Rembiszewski, supra. The theory, however, was sufficiently developed by the time of the fourth motion for a new trial.⁵ Hence, the waiver principle we applied in Burnett similarly applies here.⁶

3. No relief from waiver due to defendant's pro se status. The defendant next contends that, because he was proceeding pro se at the time he filed his 1997 new trial motion, the motion judge was bound to treat the defendant's submission liberally. There is no precedent applicable to this court that supports this proposition.⁷ The defendant points out that in Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985), we noted that some leniency is proper in determining whether a pro se litigant meets the requirements of procedural rules. We went on to emphasize in Mmoe, however, that "the rules bind a pro se litigant as they bind other litigants." Id.

The defendant also asserts that he did not file the 1997 new trial motion with the intention of pursuing the matter pro se, and sought to have counsel appointed pursuant to Mass. R. Crim. P. 30 (c) (5), 378 Mass. 900 (1979). Assignment of counsel under this rule is by discretion of the judge, however, and not by right,⁸ and nowhere does the defendant argue that the motion judge abused this discretion. Even if the defendant had so argued, the issue was not presented to us by the single justice, so we would not consider it. We note, however, that the defendant had previously acted pro se on his third motion for a new trial, and had filed a pro se petition for leave to appeal from the denial of that motion. Thus, the record demonstrates that the defendant knew how to, but nevertheless did not, seek leave from the single justice to appeal from the denial of the fourth motion.

The defendant's attempts to distinguish our holdings in Commonwealth v. Jackson, 419 Mass. 716 (1995), and Commonwealth v. Barnes, 399 Mass. 385 (1987), are also without merit. In Commonwealth v. Jackson, supra,

we held that, "[d]espite their lack of legal training, pro se litigants are held to the same standards as practicing members of the bar." Id. at 719, citing Commonwealth v. Barnes, supra at 392. We observed long before that "[t]he right of self-representation is not `a license not to comply with relevant rules of procedural and substantive law.' Faretta v....