# Commonwealth v. Colon-Cruz

> Massachusetts Supreme Judicial Court · October 18, 1984 · 393 Mass. 150

URL: https://www.frixlaw.com/law-library/cases/9520961

## Case

- **Full name:** Commonwealth vs. Abimael Colon-Cruz (And Two Companion Cases)
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** October 18, 1984
- **Citations:** 393 Mass. 150; 470 N.E.2d 116; 1984 Mass. LEXIS 1888
- **Precedential status:** Published
- **Opinion:** Dissent by Nolan
- **Judges:** Hennessey, Wilkins, Liacos, Abrams, Nolan, Lynch, O'Connor
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Nolan, J.
(dissenting, with whom Lynch, J., joins). I dissent from the court’s conclusion that St. 1982, c. 554, is unconstitutional under the Massachusetts Constitution. For starters, I believe that the court addresses the issue prematurely. A more appropriate occasion to consider the question would be in an actual case where a defendant has been sentenced to death. In that posture, the case would permit appellate responses to the “as applied” attacks on the statute as well as to the facial attacks. The fact that the Legislature has not requested an advisory opinion from the Justices on the statute’s constitutionality “suggests [its] preference that the death penalty statute be tested in a real, and not a hypothetical, proceeding.” District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 , 674 n.2 (1980) (Wilkins, J., concurring).
Without veering in the least from my position as to the prematurity of the court’s opinion, I venture to respond to the court’s opinion because of the importance of the question. The court’s interpretation of art. 116 of the Amendments to the Massachusetts Constitution and St. 1982, c. 554, §§ 3 & 6, contravenes the desires of the citizens of Massachusetts and the court’s duty to construe laws, when possible, so as to avoid the conclusion that they are unconstitutional. The court inter *182 prets the language of art. 116, which provides that no language of the Massachusetts Constitution “shall be construed as prohibiting the imposition of the punishment of death,” as merely a reversal of District Attorney for the Suffolk Dist. v. Watson, supra at 665 , in which the court declared the death penalty impermissibly cruel under art. 26 of the Declaration of Rights. Forewarned by the language of Watson , the people made it clear that the capital punishment statute must escape invalidation by any article of the Massachusetts Constitution. Therefore, the amendment should act as a bar to State constitutional scrutiny.
The court, despite the clear language of art. 116, concludes, through a strained reliance on the definition of “prohibit,” that the amendment only prevents the court from construing any provision of the Massachusetts Constitution as forbidding the imposition of the death penalty. I cannot comprehend how the phrase, “[n]o provision of the Constitution . . . shall be construed as prohibiting the imposition of the punishment of death,” could be interpreted to mean other than that the court cannot invalidate the statute under the State Constitution. The phrases and words of an amendment to the Constitution should “be read and construed according to the familiar and approved usage of the language.” Yont v. Secretary of the Commonwealth, 275 Mass. 365, 366-367 (1931).
Furthermore, the court’s concern with the possibility that art. 116, if given the interpretation I suggest, may prevent State constitutional scrutiny of death penalty statutes for shoplifting is groundless. The short answer to this concern is that we are not dealing with shoplifting. The statute addresses only murder in the first degree. There is no need to speculate about matters not before us at this time. Moreover, there is no reason to discount the United States Constitution, which provides adequate safeguards against such blatantly unconstitutional excesses.
The court also errs in deciding that St. 1982, c. 554, unconstitutionally infringes upon the defendants’ right to trial by jury and the right not to plead guilty. The court disregards its duty to construe statutes, when possible, in a manner consistent with constitutionality. Commonwealth v. Joyce, 382 Mass. *183 222 , 226 n.5 (1981). To that end, the court “shall indulge every rational presumption in favor of the statute’s validity.” Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982). Only where the language is so explicit and clear that a constitutional interpretation is impossible, should a court invalidate a statute. Commonwealth v. Lammi, 386 Mass. 299, 301 (1982). I suggest that St. 1982, c. 554, may be interpreted constitutionally.
The court relies on United States v. Jackson, 1 390 U.S. 570 (1968), by analogy, to invalidate St. 1982, c. 554. In Jackson, supra, the Court held that the Federal Kidnaping Act, 18 U.S.C. § 1201 (a) (1964), was invalid because it imposed an impermissible burden upon an accused’s exercise of his Fifth Amendment right not to plead guilty and his Sixth Amendment right to demand a trial by jury. Jackson, supra at 581-583 . The statute provided that a defendant would be sentenced to death if the kidnaped person had not been liberated unharmed and if the jury recommended death in their verdict. Id. at 571 . Statute 1982, c. 554, which differs significantly from the Federal Kidnaping Act, 18 U.S.C. § 1201 (a) (1964), provides: “Whoever is guilty of murder committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty . . . may suffer the punishment of death.” This language does not distinguish between those defendants found guilty by a jury verdict and those who plead guilty. The language of G. L. c. 279, § 68, inserted by St. 1982, c. 554, § 6, read in connection with this language, renders a constitutionally permissible result.
The statute can be read to justify the following agenda. In a jury trial, the jury must specify the basis for a conviction of *184 murder in the first degree. If the jury specify murder in the first degree with deliberate premeditation or with extreme atrocity or cruelty, the judge must then conduct a presentence hearing. The trial jury in most cases will pass on the issue of sentencing. However, where “it is impossible or impracticable for the trial jury to sit at the presentence hearing, a new jury shall be impanelled to sit at the presentence hearing.” Thus, in those instances where a defendant pleads guilty, no jury shall have sat and the trial judge is provided with the power to empanel a jury for sentencing. This interpretation provides for capital punishment regardless of the manner in which a defendant is adjudged guilty.
Unlike the Federal Kidnaping Act, 18 U.S.C. § 1201 (a) (1964), which was reviewed in United States v. Jackson, supra, and which did not authorize a subsequent sentencing hearing, G. L. c. 279, § 68, inserted by St. 1982, c. 554, § 6, provides a comprehensive scheme for a presentence hearing. Therefore, this interpretation would not “create from whole cloth a complex and completely novel procedure. ’’ Jackson, supra at 580 .
By way of epilogue, it is regrettable that the court, having decided to take the case before trial, has responded to only one of the arguments. The defendants have mounted other attacks on the death penalty statute and the Commonwealth has responded to them. I hope that this selective appellate processing does not presage a continual piecemeal treatment of a subject on which the people and the Legislature have made their voices heard so loudly and clearly. It seems to me that they have a right to an adjudication on all the parts of the statute which the court considers constitutionally vulnerable and which have been addressed in the briefs.
This case is not the typical adversary appellate proceeding after adjudication in which the court generally (though not always) limits itself to the issue dispositive of the matter. Sée Attorney Gen. v. Dover, 327 Mass. 601, 608 (1951). By taking this case before an adjudication on the merits, the court has undertaken to write an opinion which, for all practical purposes, is not trenchantly different from an advisory opinion. It is settled that the court will answer all proper questions raised *185 in the request for an advisory opinion if there is a “solemn occasion.” See Opinion of the Justices, 354 Mass. 804, 808 (1968). The court should do no less in this case.
It is interesting to note that in North Carolina v. Alford, 400 U.S. 25 (1970), decided nineteen months after Jackson, the United States Supreme Court rejected the authority of Jackson, on which the defendant in Alford relied (and on which this court relies today for analogical purposes). In Alford , the United States Supreme Court upheld the acceptance of a plea of guilty of murder in the second degree despite the defendant’s protest that he was innocent and pleaded guilty only to avoid the death penalty which, under North Carolina law, could be imposed only following a jury verdict.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9520961. Public record. Not legal advice.