# Commonwealth v. Alphas

> Massachusetts Supreme Judicial Court · July 7, 1999 · 430 Mass. 8

URL: https://www.frixlaw.com/law-library/cases/6451846

## Case

- **Full name:** Commonwealth v. John Speare Alphas
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** July 7, 1999
- **Citations:** 430 Mass. 8; 712 N.E.2d 575; 1999 Mass. LEXIS 481
- **Precedential status:** Published
- **Opinion:** Concurrence by Greaney
- **Judges:** Fried, Greaney, Ireland
- **Cited by:** 288 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6451846

## How later opinions describe it (automated extraction)

- explaining that this is test for determining whether there is substantial risk of miscarriage of justice

## Opinion text

Greaney, J.
(concurring). I agree with the court’s statement of the tests for determining the existence of a substantial risk of a miscarriage of justice and prejudicial error. Ante at 13 & n.7. I *21 write separately to explain my understanding of some of the differences between the tests.
Appellate courts do not sit as triers of fact. Any test concerning reversible error that requires an appellate court to determine whether a defendant is actually innocent is conceptually flawed because such a test converts the appellate function into the jury function in violation of their different purposes. I do not accept recent pronouncements of Federal law that may suggest the contrary. The correct formulation of basic principles in this area is the one stated by Justice Rutledge in Kotteakos v. United States, 328 U.S. 750, 763-764 (1946), in these terms:
“Some aids to right judgment may be stated more safely in negative than in affirmative form. Thus, it is not the appellate court’s function to determine guilt or innocence. . . . Nor is it to speculate upon probable reconviction and decide according to how the speculation comes out. Appellate judges cannot escape such impressions. But they may not make them sole criteria for reversal or af-firmance. Those judgments are exclusively for the jury .... But this does not mean that the appellate court can escape altogether taking account of the outcome. To weigh the error’s effect against the entire setting of the record without relation to the verdict or judgment would be almost to work in a vacuum. ... In criminal causes that outcome is conviction. This is different, or may be, from guilt in fact. It is guilt in law, established by the judgment of laymen. And the question is, not were they right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision. The crucial thing is the impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting.” (Citations omitted.)
The tests expressed by the Court are underpinned by these fundamental principles that distinguish appellate from trial work.
The substantial risk of a miscarriage of justice test is based on the settled rule that errors not raised or preserved by a defendant at trial will not be considered on appeal. The reasons for this rule were well stated by the Oregon Court of Appeals in State v. Applegate, 39 Or. App. 17, 21 (1979), as follows:
*22 “There are many rationales for the raise-or-waive rule [ 1 ]: that it is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to a court; that fairness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to; that the rule promotes efficient trial proceedings; that reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not produce the desired result; and that there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right. The principal rationale, however, is judicial economy. There are two components to judicial economy: (1) if the losing side can obtain an appellate reversal because of error not objected to, the parties and public are put to the expense of retrial that could have been avoided had an objection been made; and (2) if an issue had been raised in the trial court, it could have been resolved there, and the parties and public would be spared the expense of an appeal.”
The substantial risk of a miscarriage of justice test constitutes our exception to this aspect of the finality rule. The test requires a comparative analysis of the considerations set forth in the court’s opinion to decide whether the jury might have reached a different result had the error not occurred. Each case on appeal will have its own peculiar characteristics, and no all-encompassing checklist can be developed. But, as an authority on criminal procedure has observed with respect to the counterpart Federal “plain error” doctrine, “[tjhere are . . . certain factors which clearly have a positive influence on the application of the doctrine. The more closely balanced the evidence, for example, the greater the likelihood that an error otherwise not viewed as sufficiently patent or fundamental will meet the standard. Courts also acknowledge that errors of *23 constitutional magnitude will be noticed more freely under the plain error doctrine than violations of most statutes or common law standards. Various rulings also suggest that the doctrine is more likely to be applied where there might be a good reason for the lack of objection below,[ 2 ] or where the error could not have been remedied by the trial judge even if called to his attention. On the other side, the doctrine is less likely to be applied where the error could have been readily corrected by an objection at trial, or where such an objection may have led the government to introduce additional evidence on the issue.” 3 W.R. LaFave & J.H. Israel, Criminal Procedure § 26.5, at 256-257 (1984). As a general proposition, to create a substantial risk of a miscarriage of justice, the error must be serious when considered in terms of its injurious effect or influence on the jury’s verdict. The defendant bears the burden of showing that the error could have had such an impact, and the appellate court will not apply the test to grant the defendant relief in the absence of substantial agreement by the appellate panel that a new trial is necessary to correct a conviction that leaves the feeling that an injustice has occurred and to assure that trials are fundamentally fair.
The prejudicial (or harmless) error test stated by the court is that drawn from the Kotteakos case. The test has been applied in many of our decisions. As with the substantial risk of a miscarriage of justice test, the prejudicial error test calls for a comparative analysis of the circumstances in a particular case. The appellate court, attentive to the fact that the defendant’s rights at trial have been preserved, inquires whether there is a reasonable possibility that the error might have contributed to the jury’s verdict. The burden of showing the absence of error is on the Commonwealth, see Commonwealth v. Hanger, 377 Mass. 503, 510 (1979), and cases cited, and the Commonwealth also bears the risk of doubt when any exists as to the error being nonprejudicial. This test is quantitatively more favorable to a defendant than the substantial risk of a miscarriage of justice test. There are, of course, considerable permutations of both tests that need not be discussed here. It is enough to state that the tests differ in their substance, and each serves a discrete function in the criminal justice process.
The use of the word “waiver” in this shorthand expression is not correct. Waiver involves the intentional relinquishment of a known right. A defense lawyer who does not object to an error at trial does not do so intentionally and knowingly (except in rare instances where a tactical judgment is made). The lack of an objection to, or a failure to preserve the right of appeal on, a trial error is usually the product of defense counsel’s inadvertence or ignorance. The “raise or waive” rule is more properly characterized as a “raise or lose” rule.
The authors here cite as an example United States v. Berry, 627 F.2d 193, 199 (9th Cir. 1980), cert. denied, 449 U.S. 1113 (1981), where an objection was not made because it might have exaggerated the prejudice caused by the initial error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6451846. Public record. Not legal advice.