Commonwealth v. Woodward

Greaney, J.

(dissenting in part, with whom Abrams and Ireland, JJ., join). I conclude that we should vacate the sentence imposed and have Woodward resentenced by another Superior *691 Court judge. This case presents circumstances unique to our rule 25 (b) (2) jurisprudence. Mass. R. Crim. R 25 (b) (2), 378 Mass. 896 (1979). In no other case has the trial judge denied a request by the Commonwealth for an obviously necessary lesser included offense instruction at the request of the defendant, and subsequently reduced a verdict returned by the jury on the greater offense to the lesser offense which the jury had been precluded from considering. The court correctly points out that the judge’s failure to instruct on manslaughter was error. The judge improperly acquiesced in Woodward’s counseled position that such an instruction should not be given, and he did so in reliance on case law that did not support that position. 1 This error created the basis for the judge’s subsequent reduction of Woodward’s conviction to manslaughter.

What further sets this case apart from most, if not all, others is that this chain of events was set in motion by Woodward, who, after examination in open court, and with the assistance and advice of her lawyers, knowingly and voluntarily agreed to the choices that would be given to the jury. Woodward pressed for those choices despite having full knowledge that her strategic decision might be rejected by the jury. Woodward’s tactics, with the judge’s approbation, transformed the trial from a search for the truth to a high stakes game of chance. In a phrase, Woodward brought the result on herself. There is much force in the Commonwealth’s argument that the judge’s actions appear “to have manipulated the trial’s outcome and marginalized the jury, all to Woodward’s benefit.” Ante at 672. To their credit, the jury steeled themselves to their duty and returned a verdict finding Woodward guilty of the unlawful and intentional killing of an eight month old child.

The judge’s error created a deep structural flaw in the trial, resulting in a sense of unease that permeated the proceedings that followed, and which was exacerbated by the nature of the sentencing proceedings following the verdict reduction. It is this singular series of events from which the Commonwealth’s concerns about the propriety of Woodward’s sentence arise.

As the court states, ante at 687, the Commonwealth concedes that the sentence imposed falls within the range of punishment prescribed in G. L. c. 265, § 13, for a manslaughter conviction. *692 Contrary to the court’s reading of the record, however, the Commonwealth indeed argues that the sentence imposed on Woodward is nonetheless unlawful, basing its claim on the sentence being “inextricably intertwined” with the judge’s “unlawful reduction in verdict.” While the court concludes that, despite the instruction error, the judge acted within his discretion on Woodward’s rule 25 (b) (2) motion in reducing the verdict to manslaughter, there are significant concerns raised by the sentencing procedures employed in this case, and by the particular sentence imposed, that the sentence should be considered independently from the verdict reduction. The Commonwealth also urges our review of the sentence pursuant to our authority under G. L. c. 211, § 3, “to set aside a sentence imposed contrary to law.” See Commonwealth v. Cowan, 422 Mass. 546, 547 (1996) (affirming single justice of this court who vacated an improper sentence, stating “[i]t is well within this court’s general superintendence power to correct a sentence that has been imposed contrary to law”). Thus, the legality of Woodward’s sentence was adequately raised by the Commonwealth, and the concerns now addressed are inherent in its request that this court review the sentence.

In view of the procedural posture of this case — the uniqueness of which the judge was well aware — I am particularly troubled by the dispatch with which the judge scheduled the sentencing hearing on the same afternoon that he released his postverdict order reducing Woodward’s conviction, and by the cursory hearing that he then conducted, which was followed almost immediately by the time-served sentence.

My review of the transcript of the sentencing hearing suggests that the Commonwealth was not adequately prepared on such short notice to make a forceful argument on the appropriate sentence for Woodward’s manslaughter conviction. 2 The short notice also prevented Matthew’s parents from attending the hearing. While the Commonwealth noted this fact, it acceded to the judge’s suggestion that he consider the victim impact statements the Happens had made previously. These *693 procedures contravene the pertinent provisions of G. L. c. 258B, § 3, that family members are entitled to be present at all court proceedings related to the offense committed against the victim, § 3 {tí), and to be heard through an oral and written victim impact statement at sentencing about the effects of the crime on them, and as to a recommended sentence, § 3 (p). I question whether the statute permitted the judge to proceed so expeditiously with sentencing where the record does not reflect whether the Happens chose not to be present at the hearing, or because he provided so little notice of the hearing (despite having said at the conclusion of the postverdict motions hearing that he would provide “ample notice” if further proceedings were required), they were effectively precluded from attending. As a result, not only might the judge’s expediency have deprived the Happens of their statutory right, but the judge did not have the benefit of their thoughts in determining Woodward’s sentence on the manslaughter conviction, which may well have differed from those expressed in their earlier statements. In any event, the haste with which the sentencing hearing was conducted, followed by the hurried disposition at the conclusion of the hearing, left little time for the judge to give proper consideration to the Happens’ earlier victim impact statements.

Moreover, it is not apparent from the record of the sentencing hearing what factors and characteristics the judge considered in deciding Woodward’s sentence. We have said that “[the] sentence should reflect the judge’s careful assessment of several goals: punishment, deterrence, protection of the public, and rehabilitation.” Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). The transcript shows, in this regard, that the judge merely stated that “[t]he same considerations that informed my decision to lower the verdict apply here,” and that “[i]t is in my judgment time to bring the judicial part of this extraordinary matter to a compassionate conclusion. Taking all of the circumstances into account . . . .” These statements, combined with the cursory quality of the hearing and the haste in sentencing, suggest a rush to end the judicial proceedings and a failure to assess carefully all of the goals of sentencing in Woodward’s case. In his memorandum reducing the verdict, the judge does not address the sentencing goals recognized in Goodwin , nor does he consider imposing on Woodward any appropriate terms of probation, despite his own conclusion that she was responsible for the death of a young child who was entrusted to her care.

*694 In addition, the judge states in his memorandum that he “may not, however, take into account the feelings of those [who Matthew’s] death has affected.” While this is an appropriate statement for purposes of reducing the verdict, it nonetheless further suggests he may have failed properly to consider for purposes of sentencing the impact of Woodward’s crime on Matthew’s family.

The Commonwealth argues in its brief that “[t]he combination of the judge’s actions created the appearance, and must have given the public the distinct impression, that the [judge] was manipulating the outcome of the trial and engineering an acquittal.” We have said that, “[b]ecause the role of the sentencing court is, by nature, ‘judgmental,’ ... a judge ‘must maintain a stance of scrupulous impartiality and not permit [himself or herself] to become identified with the interests of either the prosecutor or the defense counsel.’ ” Commonwealth v. Coleman, 390 Mass. 797, 809 (1984), quoting Commentary, HI ABA Standards for Criminal Justice, Sentencing Alternatives and Procedures, standard 18-6.9, at 496 (2d ed. Supp. 1982). We also have said that criminal proceedings must have “the appearance of fairness and impartiality necessary to our judicial system. ‘[Jjustice must satisfy the appearance of justice.’ ” (Footnote omitted.) Commonwealth v. Howard, 367 Mass. 569, 572 (1975), quoting Offutt v. United States, 348 U.S. 11, 14 (1954). Here, it appears that the judge identified himself with Woodward’s cause, compromising the public’s confidence in the integrity and impartiality of our courts.

The combination of these circumstances leads me to conclude that Woodward’s sentence is tainted by legal error and thus was not lawfully imposed. 3 Accordingly, “justice [would] best be served if [Woodward were] sentenced again,” Commonwealth v. Franks, 369 Mass. 608, 610 (1976), by another judge, “based solely on relevant criteria of sentencing.” Commonwealth v. Coleman, supra at 810-811 n.15. A new sentencing judge, after appropriate study, reflection, and an opportunity for the parties to be heard, might impose the same period of incarceration as was imposed by the judge here, or might increase Woodward’s penalty. I would recommend that a judge, in resentencing Woodward, consider imposing a suitable period of probation that makes her subject to appropriate conditions, including the following two special conditions:

*695 First, as a felon convicted of a grave act of child abuse, Woodward should not in the future be entrusted with the care of the children of others, whether for remuneration or otherwise.

Second, Woodward and her representatives or assignees should be prohibited from engaging in any activity generating any profit or financial benefit relating to the publication or dissemination by any form of media of facts or circumstances relating to her crime, her experience in the judicial system, or anything else associated with the tragic event for which she stands convicted. See Commonwealth v. Power, 420 Mass. 410 (1995), cert. denied, 516 U.S. 1042 (1996) (upholding a similar special condition of probation with respect to Katherine A. Power, a felon convicted of manslaughter, whose story drew national media attention).

These measures comprise an appropriate remedy that would rectify any harm caused by the legal error, engender confidence in the fairness and impartiality of our judicial system, maintain the dignity and integrity of our courts, and bring rightful closure to this difficult case.

Woodward’s additional argument that a manslaughter instruction would have been prejudicial because it might have invited a compromise verdict is frivolous.

In his written memorandum reducing Woodward’s verdict, released on the morning of November 10, 1997, the judge directed that she be brought before the court a few hours later, “then and there to receive her sentence” on the manslaughter conviction. Judges, of course, can sentence a defendant on the same day as his or her conviction, and this often occurs. However, it is assumed that judges do so with the informed consent of the parties, and after having considered all factors relevant to a proper disposition.

Thus, there is no need to consider the exercise of our authority pursuant to G.L. c. 211, § 3.