Appendix — Grace v. Butterworth

re

80-1825

In The

SUPREME COURT OF THE UNITED

October Term, 1980

FRANK GRACE, ET AL,

Petitioners

Vv.

| oie Supreme Os ~~" US. |

5

APR 9% 1981

ALEXANDER L. STEVAS,

| CLERK

ATES

FRED. BUTTERWORTH, ETC., ET AL,

Respondents

APPENDIX

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Norman F.

Lazarus

7 Water Street

Boston, MA 02109

(617) 227-

Of Counsel:

Daniel F. Featherston, Jr.

7 Water Street

Boston, MA 02109

(617) 227-7830

March 31, 1981

7830

NO.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1980

FRANK GRACE, ET AL,

Petitioners

Vv.

FRED BUTTERWORTH, ETC., ET AL,

Respondents

APPENDIX

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Norman F. Lazarus

7 Water Street

Boston, MA 02109

(617) 227-7830

Of Counsel:

Daniel F. Featherston, Jr.

7 Water Street

Boston, MA 02109

(617) 227-7830

March 31, 1981

7%

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 79-1422

FRANK GRACE, ET AL,

Petitioners, Appellants

Vv.

FRED BUTTERWORTH, ETC., ET AL

Respondents, Appellees

SUPPLEMENTAL OPINION ON REHEARING

Before COFFIN, Chief Judge,

CAMPBELL and BOWNES, Circuit Judges

Daniel F. Featherston, Jr., with whom

Robert A. Sherman was on brief, for

appellants.

Barbara A. H. Smith, Assistant Attorney

General, with whom Francis X. Bellotti,

Attorney General, Stephen R. Delinsky,

Assistant Attorney General, Chief, Criminal

Bureau, and Robert V. Greco, Assistant

Attorney General, were on brief, for

appellees.

December 31, 1980

PER CURIAM. In our initial opinion

upon rehearing of June 27, 1980, we

refrained from deciding whether, as

petitioners claimed, the Massachusetts

Supreme Judicial Court had been so

"arbitrary and capricious" in its applica-

tion of state precedent in this case as to

violate the fourteenth amendment. Instead,

while retaining appellate jurisdiction, we

-2-

directed petitioners to put their claim

before the state courts so that they

might be given the opportunity to rule

in the first instance on the issues

presented.

In an opinion dated November 12, 1980,

the Supreme Judicial Court, considering

the Graces' petition for reconsideration

of that court's 1978 decision, affirmed

the denial of defendants' motion for a

new trial. Commonwealth v. Grace, Mass.

Adv. Sh. (1980) 2345. The court held that,

at least in the procedural context in

which petitioners' challenges to the jury

instructions were made, reversal was

essentially discretionary and dependent

upon such factors as:

"the weight of the evidence

the seriousness of the defi-

ciencies in the instructions

taken as a whole, the extent

to which the defects had been

disclosed in opinions of this

court or of the Supreme Court

before the instructions were

given, the prior opportunities

of defense counsel to make

the challenge on appeal and

in postconviction proceedings,

and whether the appeal is

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subject to the special duty

imposed on us by [Mass. G.L.

c. 278] §33E [governing direct

appeals but not defendants'

motions for new trial]."

Mass. Adv. Sh. (1980) at

2360.

Verdicts would be set aside only upon a

showing of grave prejudice or substantial

likelihood that a miscarriage of justice

had occurred. Applying this standard, the

court explained and adhered to its prior

holding, and altogether rejected the Graces'

most recent constitutional claim as

affording any ground for relief.

On November 17, 1980, we invited the

parties to file such supplemental

memoranda, if any, as they wished in

light of the recent opinion and order of

the Supreme Judicial Court. After considera-

tion of petitioners' memorandum and the

Supreme Judicial Court's opinion, we con-

clude that petitioners have failed to

demonstrate that the state court's dis-

position of the present case was such as

to violate the standards of the fourteenth

amendment. Even assuming, which we do

not decide, that the judgments of the

highest court of a state may ever be

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declared unconstitutional by a lower

federal court on the ground that has been

advanced, we do not see that the disposi-

tion of the instant case, as explained

by the Supreme Judicial Court, even

approaches the irrationality or unfairness

that would be required to sustain appel-

lants' contention. We therefore adhere

to our affirmance of the district court's

denial of appeallants' petition for

habeas corpus.

AFFIRMED.

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UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 79-1422

FRANK GRACE, ET AL,

Petitioners, Appellants

Vv.

FRED BUTTERWORTH, ETC., ET AL

Respondents, Appellees

ON PETITION FOR REHEARING

Before COFFIN, Chief Judge,

CAMPBELL and BOWNES, Circuit Judges

Daniel F. Featherston, Jr., with whom

Robert A. Sherman was on brief, for

appellants.

Barbara A. H. Smith, Assistant Attorney

General, with whom Francis X. Bellotti,

Attorney General, Stephen R. Delinsky,

Assistant Attorney General, Chief,

Criminal Bureau, and Robert V. Greco,

Assistant Attorney General, were on

brief, for appellees.

June 27, 1980

CAMPBELL, Circuit Judge. This case

comes before us following our allowance

of appellants' petition for rehearing.

See Fed. R. App. P. 40. On February 5,

1980, we affirmed the district court's

denial of Frank and Ross Grace's petition

for habeas corpus. Thereafter we granted

this rehearing so as to consider the Graces'

contention that a recent decision of the

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Massachusetts Supreme Judicial Court

(SUC), entered after we had initially

heard oral argument, "fundamentally

eliminates several of this court's

grounds for affirmance..."+ To explain

the nature of appellants' argument and

the supposed bearing of the state court's

intervening decision on our own prior

disposition of these habeas petitions, we

shall briefly restate the procedural

underpinnings of this case. In doing so we

borrow heavily from our earlier opinion.

The Grace brothers stood trial together

in 1974 in Massachusetts Superior Court

for the murder of Marvin Morgan. The

jury returned verdicts of guilty of first

degree murder for Frank and second degree

murder for Ross; the trial judge sentenced

both to life imprisonment.

The Graces challenged their convic-

tions on direct appeal to the Supreme

Judicial Court, and with that apveal pend-

ing, also filed motions requesting a new

tour memorandum and order of February 26, 1980

granting the petition for rehearing limited

argument "to the question whether, in light of

the decision in Commonwealth v. Garcia, the

Massachusetts Supreme Judicial Court's failure

to apply its decision in Commonwealth v. Ferreira

retroactively and grant petitioners a new trial

was arbitrary and capricious."

7%

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trial on the basis of alleged newly

discovered evidence. The trial judge

denied the new trial motions, and the

Supreme Judicial Court consolidated the

appeals from the convictions and those

denials, ultimately affirming both.

Commonwealth v. Frank Grace, 370 Mass.

746, 352 N.E.2d 175 (1976); Commonwealth

v. Ross Grace, 370 Mass. 759, 352 N.E.2d

183 (1976). Appellants then shifted

their focus to the federal district court

for Massachusetts, requesting relief

under 28 U.S.C. §2254. That court dis-

missed the Graces' habeas petitions on

March 27, 1978, and we affirmed. Grace

v. Butterworth, 586 F.2d 878 (lst Cir.

1978).

On July 22, 1977, while the Graces'

first habeas petitions were still pending

before the district court, the SJC decided

the case of Commonwealth v. Ferreira,

373 Mass. 116, 364 N.E.2d 1264 (1977).

That case reversed a defendant's convic-

tion for murder and ordered a new trial

on the grounds that the trial judge

had imporperly informed the jury of the

possible parole and sentencing consequences

flowing from verdicts of first and second

degree murder, and had further erroneously

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instructed the jury on the concept of

proof beyond a reasonable doubt. This

decision was, no doubt, of great interest

to the Graces, as the same trial judge

had presided over their trial and there

had given instructions "substantially

é to those found deficient by

identical”

the SJC in Ferreira. The Graces had not,

in the various previous challenges to their

convictions, voiced any arguments based

on these portions of the jury charge. One

month after the Ferreira decision, however,

they moved for a new trial basically con-

tending that the similarity between the

charges, the state of the evidence and

the overall circumstances existing in

their case and in Ferreira mandated the

granting of such relief. The trial judge

2orace v. Butterworth, No. 79-1422, slip op. at

3 (lst Cir. Feb. 5, 1980). The Commonwealth in its

brief to the Supreme Judicial Court urging affirnm-

ance of the trial court's denial of the Graces’

second motion for a new trial, see infra, described

the relationship of the two charges as follows: "In

fact, this same trial judge used substantially the

same charge not only in Grace and Ferreira, but also

in numerous other murder trials over which he

presided." (Emphasis added.)

”S

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denied this second new trial motion with-

out hearing; that denial was affirmed by

the SJC which distinguished the two cases on

several grounds. > Commonwealth v. Grace,

__Mass. __, 381 N.E.2d 139 (1978). The

Graces next petitioned the SJC for rehearing,

contending that the court's proffered

distinctions were specious and that the

failure to grant them a new trial on

a record "so similar" to that in Ferreira

constituted a denial of due process. This

petition was denied without opinion.

At this point, the Graces again looked

to the federal courts for relief, filing

the present section 2254 petition. This

petition was denied by the district court,

and, as previously pointed out, we affirmed

that denial in an opinion entered February

5, 1980. On the question of the SJC's

supposed “arbitrary and capricious"

denial of the second new trial motion, we

3the SJC noted that the Graces' "trial counsel

took no exception to the reasonable doubt portion

of the charge and that experienced appellate counsel

failed to brief or argue the correctness of the

charge on the first appeal"; that the judge's

reasonable doubt instruction, "unlike the charge

in Ferreira, emphasized ‘moral certainty'” and

"taken in the context of the entire charge did

not amount to reversible error"; and that the

Graces’ failure to argue on appeal their trial

exception to the judge's mention of parole and

sentencing consequences worked a waiver of that

claim of error.

-10-

concluded that "We need not weigh the

merits of [that] court's attempts to

distinguish [Ferreira and Grace]...since

we find the procedural grounds on which

the Supreme Judicial Court based its

decision [i.e., the failure of the Graces

to except to the reasonable doubt instruc-

tion or to argue the deficiency of the

jury charge on appeal] sufficient to

dispose of this issue.” Slip op. at 4.

Although we recognized that in Ferreira

4

too no exception had been taken to the

challenged instructions, we held this not

to be dispositive, noting that the

"factors that may influence a state

court to relax its procedural require-

ments in order to establish a principal of

law for future cases do not require that

court to waive those requirements when a

party seeks retroactive application of a

decision." Slip op. at 5.

4We further found that appellants failed to

demonstrate sufficient cause for their failure

to press the parole and sentencing consequences

issue on appeal; that the trial judge's mention

of such consequences did not, in any event, violate

due process; that the trial judge's definition

of reasonable doubt did not so "infect[] the

entire trial" as to violate due process; and that

the trial judge had not, in his instructions,

impermissibly shifted the burden of proof. None

of these issues were reopened for argument in our

granting of the Graces' petition for rehearing.

-ll-

The foundation for thet conclusion,

however, was severely eroded if not totally

undermined by a further decision of the

SJC delivered on January 8, 1980 and

brought to our attention in the Graces'

present petition for rehearing. In Common-

wealth v. Garcia, Mass. _, 399 N.E.2d

460 (1980), the SJC was again confronted

with a challenge to a jury instruction on

reasonable doubt delivered in a murder

trial by the same trial judge whe had sat

on both Ferreira and Grace. The Garcia

court noted that "There can be little

question that the charge given in this

case was very similar to that given in

Ferreira." 399 N.E.2d at 471. The court,

as a preliminary matter, agreed to over-

look the failure of Garcia's counsel to

object and except to the disputed portion

of the charge, indicating that it did

not "require that defense counsel foresee

developments in the case law...." Id.

(Garcia's trial had taken place some

seven years prior to the Ferreira decision.)

Next, the court concluded that "the charge

in this case, like that in Ferreira...is

a constitutionally inadequate definition

of ‘beyond a reasonable doubt'.” 399 N.E.2d

at 472. Further, and most important to

-12-

the present discussion, the SJC held that

the United States Supreme Court decisions

in In re Winship, 397 U.S. 358 (1970),

and Ivan V. New York, 407 U.S. 203 (1972),

mandated the retroactive application of

Ferreira; this was so despite Garcia's

failure to raise the alleged errors at

trial.> Compare Hankerson v. North

Carolina, 432 U.S. 233, 244 n.8 (1977).

The SJC's only reference to its seemingly

inconsistent handling of Grace was that

it had not found the judge's instruction

there, “in the context of the entire

charge...to constitute reversible error,"

and that "Grace was an appeal from the

denial of a motion for new trial," while

Garcia involved additionally "a direct

appeal." 399 N.E.2d at 472.

The Graces presently argue that our

February 5, 1980, opinion finding no

infirmity in the SJC's failure to grant

them the benefits of its Ferreira ruling,

based as it was on our recognition of that

court's right in the circumstances to

>The Surpeme Judicial Court continued by

concluding that in light of the “overwhelming

evidence" of Garcia's guilt, the erroneous instruc-

tions were harmless beyond a reasonable doubt. 399

N.E.2d at 473.

ry

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withhold retroactive application of thet

ruling, has lost all strength in light of

Garcia. The Graces further contend that

the retroactive application by the SJC

of its Ferreira holding to Garcia follow-

ing its steadfast refusal to similarly

apply that holding to their case is

"arbitrary and capricious", and thus

violative of the fourteenth amendment.

We have allowed the Graces the opportunity

to brief and argue this last point on

rehearing.

At the outset we are presented with

a critical threshold question, namely

whether the Graces have sufficiently

exhausted their available state judicial

remedies so as to render it appropriate

for this court, in light of considerations

of federal-state comity, to now answer

their allegations of unconstitutional

behavior on the part of the state's

highest court. Picard v. Connor, 404 U.S.

270 (1971); 28 U.S.C. §§2254(b), (c).

We are mindful that in this circuit

at least “exhaustion refers to remedies,

not petitioners," Odsen v. Moore, 445

F.2d 806, 807 (lst Cir. 1971), and that

a reading of the summary presented above

of the Graces' repeated attempts to

~

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secure relief in the state courts may make

it first appear that the appellants have

adequately presented their contentions to

the necessary state tribunals. However,

under the Supreme Court's decision in Picard

v. Connor, 404 U.S. 270 (1971), “exhaustion

of state remedies is required as a pre-

requisite to consideration of each claim

sought to be presented in federal habeas...."

Pitchess v. Davis, 421 U.S. 482, 487 (1975)

(per curiam) (emphasis added). It is not

enough that the state has been presented

with the general factual background of

a petitioner's case or legal contentions

related to that presently urged. Rather

the state prisoner is required to first

present to the state courts the "same

claim" that he urges upon the federal

court before he may properly seek relief

in that latter forum. Picard, supra, 404

U.S. at 276 (emphasis added). Here, while

the claim presently pressed by the Graces

is certainly intertwined with and closely

echoes their earlier voiced contention,

we think that it “took on an entirely

different character" after the Garcia

decision and now "is in effect a new claim."

Subilosky v. Commonwealth of Massachusetts,

412 F.2d 691, 693 (lst Cir. 1969).

-15-

In their original habeas petition in

the present proceeding the Graces had urged

that their case was identical in nearly

all respects to Ferreira and that the state

courts could not arbitrarily withhold the

benefits of that decision from them. At

this stage the relevant comparison concerned

only those two cases, and as explained

above, we had no difficulty in finding

adequate the SJC's reliance on a procedural

default as a basis for its decision to

deny the Graces their requested relief.

With the entry of the SJC's opinion in

Garcia, however, granting as it did retro-

active application of Ferreira despite

defendants' failure to object at trial,

the Graces' contention took on a rather

different dimension. The focal point of

their fourteenth amendment claim of

arbitrary state court action now shifted

from a comparison of their treatment with

that accorded Ferreira to an uring that

the state had, in a less than evenhanded

manner, granted the retroactive benefits

of its law to one party while capriciously

withholding it from another. The relevant

comparision is no longer solely between

the Graces and Ferreira; it now also

includes those brothers and Garcia.

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While it is true that the SJC made

passing reference to its handling of the

Grace case in its Garcia opinion, see

Supra, it can hardly be contended that

the state has been given " ‘the initial

"Opportunity to pass upon and correct”

[the instant] alleged violation[] of its

prisoners’ federal rights.' ™ Picard,

supra, 404 U.S. at 275 (quoting Wilwording

v. Swenson, 404 U.S. 249, 250 [1971]).

Never has the state court been asked by

the Graces to amplify its Garcia opinion

or to contrast that case with the Graces'

own situation. The petitioners have thus,

in our view, framed a new constitutional

challenge not yet presented to or addressed

by the state courts.

We believe that the usual reluctance

of a federal court to scrutinize and

possibly "upset a state court conviction

without [granting] an opportunity to the

state courts to correct [the alleged]

constitutional violation,” Picard, supra,

404 U.S. at 275 (quoting Darr v. Burford,

339 U.S. 200, 204 [1950], overruled on

other grounds, Fay v. Noia, 372 U.S. 391

[1963]), is heightened in the present

circumstances. The petitioning parties

here are not simply framing a traditional

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habeas claim that their trial was tainted

by error of constitutional magnitude;

instead they are accusing the highest

court in the state of acting unconstitu-

tionally itself in an apparently knowing

refusal to apply precedent with an even

hand. In the face of this argument, never

yet raised in this case before any state

tribunal, we believe that usual notions

of comity and the recognized "proper

respect for state functions," Preiser v.

Rodriguez, 411 U.S. 475, 491 (1973),

requires that we yield to the state in

the first instance. The questions of the

retroactivity of the Ferreira holding and

the general impact and scope of the

Garcia decision are of obvious great

concern to the state. The Supreme Judicial

Court should be granted an opportunity

to explain more fully, if it so desires,

the intended effect of Garcia and the nature

and significance of the distinctions it

perceives between that decision and the

present case, before a federal court

presumes to do so. We feel it appropriate

and indeed necessary that the "substance

of [this] federal habeas corpus claim...

first be presented to the state courts."

Picard, supra, 404 U.S. at 278.

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We would generally, after finding

a failure to exhaust state remedies, simply

affirm the district court's dismissal of

the section 2254 petition forcing the

petitioners to completely begin their

quest for relief anew. See, e.g., St. Pierre

v. Helgemoe, 545 F.2d 1306 (lst Cir. 1976).

We feel, however, that a different course

is called for here. Considering the close

relationship between the instant claim

and that previously raised in their initial

petition, and the fact that this case

presents to this court a purely "legal"

question divorced from any possible

contested factual allegations, we believe

_ that in the interest of fairness and

expeditious disposition the better course

is for us to retain jurisdiction while

the Graces put their claim before the

state courts. Cf. West v. Louisiana,

478 F.2d 1026, 1034 (5th Cir. 1973),

vacated on other grounds, 510 F.2d 363

(1975). Since the Graces' claim hinges

on the interpretation of a decision of

the highest court of Massachusetts, we

assume that efforts will be made to

present the claim directly to that

court through procedures deemed to be

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Suitable under the circumstances. The

parties are directed to cooperate to

present the matter forthwith and to

keep this court advised as to their

progress.

SO ORDERED.

°%

=20-

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NO. 79-1422

FRANK GRACE, ET AL

Petitioners, Appellants

Vv,

FRED BUTTERWORTH, ETC., ET AL

Respondents, Appellees

Appeal From The United States District Court

For The District Of Massachusetts

{[Hon. Walter Jay Skinner, U.S. District Judge]

Before COFFIN, Chief Judge

CAMPBELL and BOWNES, Circuit Judges

Daniel F. Featherston, Jr., with whom

Robert A. Sherman was on brief, for

appellants.

Robert V. Greco, Assistant Attorney General,

with whom Francis X. Bellotti, Attorney

General and Stephen R. Delinsky, Assistant

Attorney General, Chief, Criminal Bureau,

were on brief, for appellees.

February 5, 1980

COFFIN, Chief Judge. Appellants, Frank

and Ross Grace, were tried together in 1974

in Massachusetts Superior Court for the

murder of Marvin Morgan. The government's

case depended largely on the testimony

of two eyewitnesses who identified the

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Graces as the victim's assailants. The

appellants each proffered an alibi defense. ?

The jury returned guilty verdicts of first

degree murder for Frank Grace and second

degree murder for his brother Ross, and

the trial judge sentenced both to life in

prison.

This appeal from the district court's

denial of appellants' petitions for

habeas corpus is the latest in a series

of attempts to obtain relief from these

convictions in both the state and federal

courts. Appellants initially challenged

their convictions on direct appeal to the

Massachusetts Supreme Judicial Court.

While that appeal was pending, they filed

a motion for new trial on the basis of

newly discovered evidence that they

claimed would corroborate their alibis.

The trial judge, concluding that the “new”

evidence was available at the time of the

trial anc was merely cumulative, denied

the motions. The Supreme Judicial Court

consolidated the appeals from the con-

victions and from the denials cf the new

lithe facts are more fully set out in the

Supreme Judicial Court's opinions affirming the

convictions. Commonwealth v. Grace, 370 Mass.

746, 352 N.E.2d 175 (1976); Commonwealth v. Grace,

370 Mass. 759, 352 N.E.2d 183 (1976).

7%

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trial motions and affirmed the trial

court on both. Appellants then sought

relief in the federal district court in

Massachusetts pursuant to 28 U.S.C. §2254.

The district court dismissed their habeas

corpus petitions on March 27, 1978, and

we affirmed that order, Grace v. Butter-

worth, 586 F.2d 878 (lst Cir. 1978).

While appellants’ application for

habeas corpus was pending in the district

court, they filed a second motion for new

trial in the Supreme Judicial Court. They

argued in their new motion that the trial

judge had denied them due process by im-

properly charging the jury with respect

to reasonable doubt and punishment under

various degrees of murder. The court

denied this motion, and on September 29,

1978, the Supreme Judicial Court affirmed,

Commonwealth v. Grace, __Mass. __, 381

N.E.2d 139 (1978). Appellants subsequently

filed a second petition for habeas corpus

which was also denied by the district

court on July 24, 1979.

In this appeal, we are concerned solely

with the appellants' challenge to the

trial court's jury instructions. Appellants

point to three aspects of the charge that

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they regard as prejudicial: the judge's

discussion of the different parole

consequences of convictions for first

and second degree murder, the judge's

definition of reasonable doubt in terms

of "serious unanswered questions", and

the judge's explanation of reasonable

doubt by means of analogies to important

decisions in ordinary life.

2The trial judge defined reasonable doubt as

follows:

" "Beyond a reasonable doubt' does not mean

that the Commonwealth has to prove a person's guilt

to an absolute or mathematical certainty. There will

hardly ever be a case heard by a jury that is so open

and shut that there is no possiblity of the person

being innocent. That is not what we mean.

"What we mean, rather, is that you have to be

sure, after weighing the evidence, after discussing

the testimony that you have heard amongst yourselves,

after determining what part, all, part or none, of

any witness's story you are going to believe. After

drawing the inferences that you think are reasonable

from the evidence that you believe, it means that you

must be sure to a moral certainty that the defendant

is guilty of the crimes, as I will explain them.

"If after evaluating the evidence in your minds,

if you have any serious unanswered questiors about

the guilt of any defendant of a crime with which he

is charged, then he must be given the benefit of

that doubt and acquitted.

Following this instruction, he offered the

following analogy:

"Now, I said you have to be sure. What we

mean is that you have to be as sure as you would

want to and probably have been when'in your own

lives you have had an important economic or social

decision that you have had to make effecting [sic]

your own personal lives.

7%

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(Footnote 2 continued)

"We all know that when we have to make

that kind of a decision, that we can't be

absolutely sure we are doing the right thing.

But unless after weighing all the pros and

cons we come to the conclusion that we are

morally sure we are doing the right thing,

then we don't act.

"For example, in your own lives at

some time or other you may have had to make

a decision whether to quit school, to get a

job or to go on with your education; or whether

to get married or stay single; or whether to

stay married or get a divorce; whether to buy

a house or continue to rent; or whether to pick

up and move to another location and leave your

friends for the offer of a better job.

"Now, whenever you have had to make

that type of decision, you weigh the pros

and cons carefully. And unless you are sure

to a moral certainty that you are doing the

right thing, you don't act. You don't make

the change. It is that type of sureness that

the law means by the expression 'beyond a

reasonable doubt.’ "

With respect to the differences between

conviction for first and second degree murder,

the judge said:

"For first degree murder, the sentence

is life in prison; and that person is not

eligible for parole. He stays there until

and unless pardoned by the Governor and

the Council.

"For second degree murder, the punish-

ment is life in prison; and he is eligible--I

don't say that he will be, but he is eligible

for parole in 15 years."

* S

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Appellants' first argument concerns

a case, Commonwealth v. Ferreira, Mass.

__, 364 N.E.2d 1264 (1977), decided by

the Supreme Judicial Court after it had

affirmed the appellants’ conviction and

the denial of their first new trial motion.

In Ferreira, the court reversed a murder

conviction and ordered a new trial

because of the trial judge's jury in-

structions regarding reasonable doubt and

probable cause, which were substantially

identical to those given at appellants’

trial. Appellants argue that it was

constitutional error for the Supreme

Judicial Court to deny their motion for

new trial submitted one month after

Ferreira was decided. Recognizing that

a state court's misapplication of its own

law generally does not raise a constitutional

claim cognizable in a federal habeas

corpus proceeding, Beck v. Washington,

369 U.S. 551, 554 (1969), appellants

argue that the Supreme Judicial Court's

denial of a new trial was "arbitrary

and capricious", thus constituting

invidious discrimination proscribed by

the fourteenth amendment.

Since Ferreira was decided after

appellants’ trial and conviction, their

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argument proceeds from the premise that

the Supreme Judicial Court was obligated

. apply that decision retroactively.

From this starting point they argue that

the court made a series of specious

distinctions between the two cases that

amounted to an arbitrary denial of their

right to retroactive application of

Ferreira. We need not weigh the merits

of the court's attempts to distinguish

the two cases, however, since we find

the procedural grounds on which the

Supreme Judicial Court based its decision

sufficient to dispose of this issue.

As its first ground for affirming the

trial court's denial of a new trial, the

Supreme Judicial Court stated:

"We note that trial counsel

took no exception to the reasonable

doubt portion of the charge and

that experienced appellate counsel

failed to brief or argue the

correctness of the charge on the

first appeal. ‘It has been the

unbroken practice both under the

statute and at common law respecting

motions for new trial not to examine

anew the original trial for the

detection of errors which might

Fy

-27-

have been raised by exceptions

taken at trial.’ Commonwealth

v. McLaughlin, 364 Mass. 211,

229 (1973)...." Commonwealth v.

Grace, supra, __Mass. at__ss,

381 N.E.2d at _s«.

Appellants argue that the court acted

arbitrarily in imposing a procedural

default against them, since in Ferreira

no exception had been taken to the instruc-

tions, yet the court exercised its discre-

tion to consider the issue. This argument

is without merit. The factors that may

influence a state court to relax its

procedural requirements in order to

establish a principle of law for future

cases do not require that court to

waive those requirements when a party

seeks retroactive application of a

decision. In Handerson v. North Carolina,

432 U.S. 233 (1977), the Court faced the

argument that retroactive application of

Mullaney v. Wilbur, 421 U.S. 684 (1975),

would impose an undue burden on the

administration of state judicial systems.

In rejecting this argument, Justice White

noted: "The States, if they wish, may be

able to insulate past convictions by

enforcing the normal and valid rule that

-28-

failure to object to a jury instruction

is a waiver of any claim of error." 432

U.S. at 244 n.8. The Supreme Judicial

court permissbily applied state procedural

law by finding such a waiver in this case.

Appellants argue further that, even

if Ferreira had never been decided, the

instructions given by the trial judge would

require a new trial as a matter of federal

constitutional law. The district court found

a basis in federal law for rejecting each

of the three elements of the charge that

appellants point to as reversible error.

We will consider these in turn.

With respect to appellants’ assertion

of error in the trial judge's mention of

punishment in his jury charge, the district

court noted the finding of the Supreme

Judicial Court that failure both to assign

this instruction as error and to brief

the question on appeal constituted a

procedural default under Massachuset‘:s

law and applied the rule of Wainwright

v. Sykes, 433 U.S. 72 (1977). Under

Sykes, a procedural default precludes

habeas corpus review unless the petitioner

can demonstrate both "prejudice" resulting

from the trial court's ruling and "cause"

for his failure to comply with state pro-

cedures. Id. at 87. In applying the

-29-

Sykes test, the district judge con-

cluded that appellants had met neither

of these tests.

The Supreme Court did not define

either of the crucial terms in Sykes,

and this circuit has yet to put a defini-

tive gloss on the meaning of “cause”.

The district court, however, relied on

the definition applied by the Sixth

Circuit in Canary v. Bland, 583 F.2d

887, 892 (6th Cir. 1978) (Merrit, J.,

concurring): "“[(C]Jause means either that

state procedural rules are inadequate or

were unfairly applied or that neither

the defendant nor his attorney could

reasonably have been expected to know or

appreciate the legal significance of the

facts upon which the objection is based.”

We have rejected above the assertion that

the state procedural rule was improperly

or unfairly applied. Appellants also

argue that there was no basis in

bal

Massachusetts law for reversal on the ground

of this type of jury instruction prior to

Ferreira. ihile we are less sanguine

than the district court that prior cases

had clearly presaged the holding in

Ferreira on this point, counsel was, as

the district judge noted, aware enough of

-30-

the possibility of error in this in-

struction to object to it at trial. We

agree that appellants have failed to

demonstrate sufficient cause for their

failure to press this issue on appeal. >

Moreover, even if the principles of

comity underlying the exhaustion require-

ment did not militate against exercise of

the court's habeas corpus jurisdiction,

section 2254 requires that a petitioner

establish that he is in custody in viola-

tion of the Constitution or laws of the

3We note that the Sykes Court, in creating

a stricter standard than the Court had applied in

Fay v. Noia, 372 U.S. 391 (1963), did not

explicitly overrule that case, 433 U.S. at 88 n. 12.

Sykes involved failure to object at trial, while

Fay concerned alleged errors that had been

preserved by objection at trial but had not been

raised on appeal. The circuits have split over

whether the Fay "“knowing-and deliberate-waiver"

rule is still applicable to objections taken at

trial but not pressed on appeal. Compare Evans

v. Maggio, 557 F.2d 430 (5th Cir. 1977), with

Ferguson v. Boyd, 566 F.2d 873 (4th Cir. 1977).

Since appellants have not argued that Fay applies

to this issue and have addressed only the Sykes

"cause and prejudice" test and since we find an

alternative ground for affirming the district court

on this point, we do not take sides in the

controversy over the continuing vitality of Fay.

7%

Sor a a ey

=3l-

United States. Here, appellants are

unable to cite any federal authority for

thier assertion that mention of punishment

in a jury instruction violates the Con-

stitution. Taylor v. Kentucky, 436 U.S.

478 (1978), on which appellants rely as

creating a constitutional principal that

introduction of any "extraneous considera-

tions", into the jury's deliberations

constitutes a denial of due process,

concerned the introduction of facts not

adduced at trial that might dilute the

defendant's presumption of innocence.

We do not believe that the judge's mention

of parole consequences had a similar

detrimental impact here.

In response to appellants' second

objection to the jury instruction--that

the trial judge's use of analogies in

defining reasonable doubt denied them

due process--the district court assumed

that the claim survived the Sykes test,

but held that it failed to raise an error

of constitutional magnitude. In Dunn v.

Perrin, 570 F.2d 21, 24 (lst Cir. 1978),

we noted that “comparison of reasonable

doubt in criminal cases with the standard

employed by jurors to make even the

most significant decisions in their

daily lives has been criticized for its

7%

=-32-

tendency to trivialize the constitutionally

required burden of proof". See Scurry v.

United States, 347 F.2d 468, 470 (D.C. Cir.

1965) (equating reasonable doubt with

important personal decisions "den[ies] the

defendant the benefit of reasonable doubt").

The instruction in Dunn, however, like the

charge in this case, also included reference

to “refraining from action (as opposed to

something like 'to be willing to act')",

which, we noted, "has received widespread

approval among the circuits." 570 F.2d at

25. See, e.g. United States v. Robinson,

546 F.2d 309, 313 (9th Cir. 1976); United

States v. Leaphart, 513 F.2d 747, 750 (10th

Cir. 1975); United States v. Richardson,

504 F.2d 357, 361 (5th Cir. 1974). We

held that the combined effect of these two

instructions was not a deprivation of the

defendant's due process right to a reason-

able doubt instruction.

Appellants argue that the “important

decisions" analogies employed in the instruc-

tion in this case were more egregious than

the mere mention of decisions pertaining

to “the affairs of life" in Dunn. Although

we reiterate our concern that use of the

type of analogies invoked by the trial

judge to help explain the reasonable

doubt standard may in fact understate the

degree of certainty required for a criminal

-33-

conviction, we do not believe that because

the judge explicitly stated the ordinary-life

analogies that were merely implicit in Dunn

this aspect of the charge had a significantly

more detrimental impact on appellants'

rights. We do not exercise supervisory power

over the state courts of Massachusetts; our

review of their criminal proceedings is

limited to those instances in which "the

ailing instruction by itself so infected

the entire trial that the resulting con-

viction violates due process." Cupp v.

Naughten, 414 U.S. 141, 147 (1973).

Because ,we find the jury charge as a whole

to hale Pbead essentially sound, we do not

believe that this explaration had a

sufficiently devastating impact on the

trial to amount to a denial of due process."

4

4 Since we agree with the district court's

conclusion on the merits of this claim, we do

not decide whether the lack of any state court

precedent constitutes sufficient "cause" for a

defendant's failrue to object to a charge that

is later held to be reversible error in a retroac-

tively applicable decision. -See Frazier v.

Weatherholtz, 572 F.2d 994 (4th Cir. 1978).

-34-

Finally, with respect to appellants’

assertion that the trial court impermissibly

shifted the burden of proof, the district

court held that they had failed to satisfy

the exhaustion requirements of subsections

2254(b) and (c) because the issue had

never been presented to the Massachusetts

courts for decision.> Appellants argue that

a habeas petitioner is not required to

exhaust his avenues of state review if his

return to state court would be a futile

exercise. We agree that an attempt to

secure a new trial in state court on

this issue would be futile; the Massachusetts

courts would certainly apply their contem-

poraneous objection rule to bar consideration

of the issue. See Commonwealth v. Grace,

supra, _____ Mass. at __s, - 381 N.E. 2d

at ___. «~=The rule of Wainwright v. Sykes,

supra, would then preclude habeas corpus

review of this question, since appellants

have offered no "cause" for their failure

to object to this aspect of the charge at

trial.

Indeed, appellants did not object to this

portion of the judge's instructions at trial, nor

did they raise the issue on direct appeal or in

either of their motions for new trial or the

appeals therefrom.

-35-

Although the district court did not address

the merits of this claim, we see no error in

this portion of the trial court's instruc-

tions. In Dunn v. Perrin, supra, which

appellants cite as striking down a similar

instruction, the trial judge had defined

reasonable doubt as "such a strong and

abiding conviction as still remains after

careful consideration of all facts and

argument." 570 F.2d at 23-24. We noted

that this instruction imposed on the

defendant the burden of establishing

doubt in the jurors' minds. Id. at 24. In

this case, in contrast, the trial judge

said:

"If after evaluating the

evidence in your minds, if you have

any serious unanswered questions

about the guilt of any defendant

of a crime with which he is charged,

then he must be given the benefit

of the doubt and acquitted.”

This instruction is vastly different from

that in Dunn, which in effect equated

reasonable doubt with a "strong and abiding

conviction." Here the judge's explanation

did not refer to the function of defendants’

a |

-36-

evidence and, when viewed in light of the

entire charge, did not imply that they had

the burden of establishing that degree the

judge was attempting to define. See Tsoumas

v. New Hampshire, No. 79-1333 (lst Cir.

Dec. _, 1979).

AFFIRMED

=37=

COMMONWEALTH V. FRANK CE

(and a companion case)

Bristol - September 12, 1978 - September 29, 197%

Present: Hennessey, C.J., Quirico,

Braucher, Liacos & Abrams, JJ.

Practice, Criminal, New Trial; Charge to

jury; Exceptions: failure to save

exception; Appeal.

Motion for a new trial filed in the

Superior Court on August 10, 1977.

The proceeding was heard by Brogna, J.

The case was submitted on briefs.

Daniel F. Featherston, Jr. for the

defendants.

Peter B. Gay, Special Assistant

District Attorney, for the Common-

wealth.

ABRAMS, J. The defendants appeal from

the denial of their second motion for a new

trial. We have already affirmed their

convictions and the denial of their first

motions for new trials, Commonwealth v.

Commonwealth v. Ross M. Grace.

Grace, 371 Mass. (1976) (Frank) °; Common-

wealth v. Grace, 371 Mass. (1976) (Ross) ?,

Although both defendants had obtained plenary

review pursuant to G.L. c. 278, §33E, neither

obtained approval from a single justice to

pursue these appeals, as required by the

statute. See G. L. c. 278, §33E. After

exhaustive and plenary review under §33E,

such approval is required. These appeals

are, therefore, not properly before us.

Since the Commonwealth has not argued the

impropriety of these appeals being entered

in this court without the approval of a

single justice, we consider the issues

raised to determine if the motions for

new trials were correctly denied. We

conclude that there was no error and

affirm the order denying relief.

Both defendants claim that they are

entitled to a new trial as a result of

our holding in Commonwealth v. Ferreira,

Mass. (1977) .° They claim

that the charge to the jury contained

analogies to the jurors’ daily lives in

defining reasonable doubt and references

to parole consequences of various verdicts

and hence reversal is required. We disagree.

“Mass. Adv. Sh. (1976) 1984.

bMass. Adv. Sh. (1976) 2004.

“Mass. Adv. Sh. (1977) 1594.

7%

-39-

We note that trial counsel took no

exception to the reasonable doubt portion

of the charge and that experienced

appellate counsel failed to brief or

argue the correctness of the charge on

the first appeal. "It has been the un-

broken practice both under the statute

and at common law respecting motions for

new trial not to examine anew the original

trial for the detection of errors which

might have been raised by exceptions

taken at the trial." Commonwealth v.

McLaughlin, 364 Mass. 211, 229 (1973),

quoting from Commonwealth v. Dascalakis,

246 Mass. 12, 24 (1923). See Common-

wealth v. Morgan, 280 Mass. 392, 394 (1932)

(failure to except to portion of the jury

charge cannot be raised as a matter of

right on motion for new trial); Common-

wealth v. Morrison, 134 Mas. 189, 190

(1883) (where defendant failed to except

to portion of jury charge at trial,

defendant had no ground to except to

denial of motion for new trial).

Moreover, we note that the judge's

charge concerning reasonable doubt in

these cases, unlike the charge in

Fecreira, emphasized “moral certainty"

which is both a traditional and an

-40-

acceptable instruction. See Common-

wealth v. Fielding, Mass. Pe

(1976) ;% Commonwealth v. Webster, 5

Cush. 295, 320 (1850). The use of

analogies, taken in the context of the

entire charge, did not amount to reversible

error. Compare Commonwealth v. Coleman,

366 Mass. 705, 712 (1975), and Common-

wealth v. Ferguson, 365 Mass. l, 12

(1974), with Commonwealth v. Ferreira,

supra at ©. We find the instant

cases more closely analogous to the

Coleman and Ferguson cases thai to the

Ferreira case.

The charge on the parole consequences

of possible murder convictions also does

not require reversal. This court has

subscribed to a "long-standing general

rule thet neither sentencing nor parole

May appropriately be considered by the

jury in reaching their verdict." Common-

welath v. Mutina, 366 Mass. 810, 823 n.12

(1975). See Commonwealth v. Goodwin, 356

Mass. 632, 633-634 (1970). The defendants

dvass. Adv. Sh. (1976) 2290, 2315-2316.

_ “Mass. Adv. Sh. (1977) at 1609-1610.

"Oe =

vy

-41-

excepted to this portion of the charge

but failed to argue this exception as

error at the original appeal. Thus,

this claim of error has been waived.

Commonwealth v. Amazeen, Mass.

n.1 (1978) ° Commonwealth v.

Kleciak, 350 Mass. 679, 681 (1966). See

G.L. c. 278, §33D; S.J.C. Rule 1:13,

as amended, 366 Mass. 853 (1975). Cf.

Commonwealth v. Grace, supra at

Commonwealth v. Roberts, 362 Mass. 357,

369 (1972).

While such remarks are better left

g

unsaid, we think that not every comment

on parole consequences by a judge

necessarily required a new trial. See

Commonwealth v. Burnett Mass.

(1976)

We have reviewed the charge as a whole

and find that it stressed the duty of the

jurors, the seriousness of their decision,

moral certainty in defining reasonable

doubt, and the Commonwealth's burden of

proof. Therefore, we hold that a new trial

is not mandated.

ORDER DENYING MOTION FOR NEW TRIAL AFFIRMED

fuass. Adv. Sh. (1978) 1025 n.1.

®Mass. Adv. Sh. (1976) at 2001-2002.

Puass. Adv. Sh. (1976) 2171, 2174-2175.

7%

ay Yo

COMMONWEALTH V. FRANK GRACE

(and a companion case!)

Bristol. September 8, 1980 - November 12, 1980

Present: Hennessey, C.J., Braucher, Wilkins,

Liacos & Abrams, JJ.

Practice, Criminal, New Trial, Appeal,

Capital case. Exceptions: failure to save

exception; Charge to jury. Constitutional

Law, Substantial Federal question.

MOTION for a new trial filed in the

Superior Court on August 10, 1977.

The proceeding was heard by Brogna, J.

After the decision reported at 376

Mass. (1978), the Supreme Judicial

Court entertained a petition for reconsid-

eration.

The case was submitted on briefs.

Daniel F. Featherston, Jr., for the

defendants.

. Francis X. Bellotti, Attorney General,

Stephen R. Delinsky and Barbara A. H. Smith,

Assistant Attorneys General, for the Common-

wealth.

BRAUCHER, J. Before the United States

Court of Appeals for the First Circuit the

defendants claimed that this court, in

Commonwealth v. Grace, Mass. (1978) ,°

1 commonwealth v. Ross M. Grace.

"Mass. Adv. Sh. (1978) 2697.

-43-

"violated the fourteenth amendment by

failing to apply in appellants' case the

same rules that were announced in a later

case claimed to be essentially indistinguish-

able," Commonwealth v. Garcia, Mass. __-

(1980) .> See Grace v. Butterworth, No.

79-1422, Memorandum and Order (lst Cir.,

July 23, 1980). At the suggestion of the

Federal court, the defendants now present

that claim to us by a petition for re-

consideration. Upon full consideration of

the claim, we adhere to our 1978 decision.

1. The procedural posture. The

defendant brothers were tried together in

1974 for a murder committed in 1972, and

we affirmed their convictions and orders

denying motions for new trial, considering

the whole case on the law and the evidence

pursuant to G.L. c. 278, §33E. Commonwealth

v. Grace, 370 Mass. 746, 758 (1976).

Commonwealth v. Grace, 370 Mass. 759, 762

(1976). Habeas corpus petitions were

dismissed in Federal court, and ihe

dismissals were affirmed. Grace v.

Butterworth, 586 F.2d 878 (lst Cir. 1978).

bvass. Adv. Sh. (1980) 21.

-44-

Meanwhile, the defendants filed second

motions for a new trial on the basis

of our decision in Commonwealth v.

Ferreira, 373 Mass. 116 (1977), and

denial of those motions was affirmed in

Commonwealth v. Grace, 376 Mass. (1978)°.

A second habeas corpus petition was filed

and denied in the Federal court, and the

Court of Appeals affirmed. Grace v.

Butterworth, F.2@: (ist:€ir: 1980)°,

On the basis of our decision in Common-

wealth v. Garcia, _— Mass. __ (1980) °,

the defendants filed a petition for re-

hearing in the United States Court of Appeals.

That Court granted a rehearing and decided

"to retain jurisdiction while the Graces

put their claim before the state dourts."

Grace v. Butterworth, __—F.2¢ ’

(lst Cir. 1980) *. Later that Court adhered

to that decision after the defendants had

called its attention to our decision in

Commonwealth v. Smith, Mass. __ (1980) 9

“Mass. Adv. Sh. (1978) 2697.

do. 79-1422 (1st Cir., Feb. 5, 1980).

“Mass. Adv. Sh. (1980) 21.

fio. 79-1422, slip op. at 8 (lst Cir. 6/27/80).

®Mass. Adv. Sh. (1980) 1683.

-45-

Grace v. Butterworth, No. 79-1422,

Memorandum and Order (lst Cir., July 23,

1980). We treated the defendants'

petition as a petition for rehearing, and

the parties have filed briefs.

2. The Ferreira and Garcia cases. The

same trial judge who presided over the

Grace trial also presided over the trials

in the Ferreira and Garcia cases, and he

used substantially similar language in

these and presumably in numerous other

cases in instructing the jury on reasonable

doubt. See, e.g., Commonwealth v. Ferguson,

365 Mass. 1, 11 (1974). In the Ferreira and

Garcia cases, as in the Grace cases, ccunsel

failed to object or except to this aspect

of the charge. Both the Ferreira case and the

Garcia case came to us on direct appeal, and

we considered the issue pursuant to our

powers under G.L. c. 278, §33E.

The evidence in the Ferreira case

"demonstrated Clearly that a vicious and

unprovoked murder was committed and that one

of two men, the defendant or Silva, commit-

ted that murder." There was "a classic duel

of credibility: Silva testified that the

defendant fired the shots, and the defendant

testified that Silva did the shooting."

"A

-46-

373 Mass. at 127. We considered the

charge on reasonable doubt "in light of

the fact that, as emphasized supra, the

evidence of the defendant's guilt was

not overwhelming." Id. at 128. We held

that the judge's use of examples taken

from the jurors' lives "understated and

tended to trivialize" the jury's duty to

determine whether guilt was proved beyond

a reasonable doubt. We noted that we had

"previously criticized the type of analogy

drawn here." Id. at 129, and cases cited.

Without any reference to constitutional

requirements, we ordered a new trial. After

a second trial we affirmed the defendant's

conviction of murder in the first degree.

Commonwealth v. Ferreira, Mass.

(1980) .2

In the Garcia case we affirmed a

conviction of second degree murder, holding

that in view of the “overwhelming evidence

of guilt" error in the charge on reasonable

doubt was harmless. ___ Mass. rae One

judge dissented on the ground that an

erroneous charge on reasonable doubt can-

not be harmless. Id. at - We first

1uess. Adv. Sh. (1980) at 40-41.

JMass. Adv. Sh. (1980) at 44-45.

|

SS

-47=-

noted that in the absence of objection or

exception we would reverse under §33E only

upon a showing of grave prejudice or sub-

stantial likelihood that a miscarriage of

justice has occurred. We distinguished

our 1978 decision in the Grace cases as an

appeal from the denial of a motion for a

new trial rather than a direct appeal.

We said that the charge in the Garcia case,

like that in the Ferreira case, was

"constitutionally inadequate," and that

the Ferreira decision had retroactive

application to a 1970 trial, emphasizing,

however, that we would "scrutinize more

carefully jury instructions given after

the date of Ferreira." Id. at os

3. Dispensing with exceptions. Before

the effective date of Mass. R. Crim. P.

22, ___Mass.___s—s (effective July 1, 1979),

we insisted in general that appellate

review in criminal cases be based on a

proper exception to the judge's ruling.

We recognized, however, a "rarely used"

power to set aside a verdict in order to

prevent a miscarriage of justice when a

decisive matter was not raised at the trial.

Kass. Adv. Sh. (1980) at 37-40.

7%

-48-

Commonwealth v. Freeman, 352 Mass. 556,

564 (1967). Commonwealth v. Hughes

Mass. ’ (1980) .2 We have exercised

the same power on collateral attack by writ

of error. Connolly v. Commonweatlh,

Mass. _,n. 9 (1979)™. See Commonwealth

v. Hughes, Mass. _n. 1 (1980)

(Liacos, J., dissenting) ;” cf. Gibson v.

Commonwealth , Mes. ann Our

decision in the present case applies the

same standard to collateral attack by

motion for new trial, pursuant to Earl v.

Commonwealth, 356 Mass. 181, 184 (1969).

Commonwealth v. Grace, 376 Mass.

(1978) .P

In Commonwealth v. Stokes, 374

Mass. 583 (1978), a case not subject to

G.L. c. 278, §33E, because both indictment

and conviction were for second degree

murder, we held that it was appropriate

to review the constitutional sufficiency

of the judge's charge notwithstanding the

“Mass. Adv. Sh. (1980) 1175, 1180.

Mass. Adv. Sh. (1979) 678, 683 n.9

"Mass. Adv. Sh. (1980) 1175, 1185 n.1

Mass. Adv. Sh. (1979) 692, 694-695.

PMass. Adv. Sh. (1978) 2697, 2700.

7%

-49-

failure of counsel to request an instruc-

tion or to object or except to the charge

given. The charge in question was given

before the decisions in Mullaney v. Wilbur,

421 U.S. 684 (1975), and Commonwealth v.

Rodrigues, 370 Mass. 684 (1976); the Su-

preme Court had given the Mullaney case

“complete retroactive effect" in Hankerson

v. North Carolina, 432 U.S. 233, 241, 243

(1977); and we did not require "clairvoyance

on the part of defense counsel." But we

need not "apply a narrow and precise test";

the charge must "be examined in its entirety

to determine whether the constitutional re-

quirements have been met." We will “bring

greater expectations, and consequently more

careful scrutiny" to a charge given after

the date of the Mullaney decision and par-

ticularly after the date of the Rodrigues,

decision. Stokes, supra at 588-591.

When an appeal is subject to G.L. c.

278, §33E, we transfer to this court "the

whole case for its consideration of the

law and the evidence," and we may, "if

satisfied that the verdict was against the

law or the weight of the evidence,...or

for any other reason that justice may

require," order a new trial or direct the

entry of a verdict of a lesser degree of

guilt. The quoted provisions stem from an

=

ry

-50-

amendment by St. 1939, c. 341, enacted in

part to broaden the scope of our review

of “capital cases" beyond the narrow

limits enforced in the controversial Sacco

and Vanzetti trials. See Commonwealth v.

Brown, 376 Mass. ’ (1978) .% The

result has been to give us a discretionary

power broader than that of a trial judge,

though one to be used "with restraint."

Commonwealth v. Mazza, 366 Mass. 30, 33

(1974); see Commonwealth v. Gricus, 317

Mass. 403, 404-407 (1944). In exercising

that power we are not limited by the

defendant's failure to object or except.

See, e.g., Commonwealth v. Carballo,

Mass. ’ (1980);* Commonwealth v.

‘Corcione, 364 Mass. 611, 618 (1974);

Commonwealth v. Myers, 356 Mass. 343, 346-

347 (1969).

In the Ferreira and Garcia cases we

exercised our power under §33E to review

the charge on reasonable doubt in the

absence of an objection or exception. In

Gibson v. Commonwealth, Mass. ,

(1979) ,* where we denied postconviction

WMass. Adv. Sh. (1978) 2266, 2282-2283.

"Mass. Adv. Sh. (1980) 1775, 1976

SMass. Adv. Sh. (1979) 692, 697.

-5l-

relief, we said, “Even without any objection

or exception we might have taken the point

on direct appeal as a basis for ordering

a new trial under G.L. c. 278, §33E." But

the absence of an objection or exception is

not irrelevant in a case under §33E; in

Commonwealth v. Fluker, 377 Mass. 123,

(1979) ©, we found that the state of the

law on the issue argued was no longer un-

certain at the time of trial, and we

refused to review that issue in the absence

of any requested instruction, objection or

exception.

4. Discretion and consistency. ie-

viewing our recent cases on constitutional

challenges to jury instructions in criminal

cases, we find that the outcome has been

influenced by at least the following factors:

the weight of the evidence, the seriousness

of the deficiencies in the instructions

taken as a whole, the extent to which the

defects had been disclosed in opinions of

this court or of the Supreme Court before

the inetructions were given, the prior

opportunities of defense counsel to make

the challenge on appeal and in post-

conviction proceedings, and whether the

appeal is subject to the special duty

“mass. Adv. Sh. (1979) 156, 166-167.

7%

>

=5 20

imposed on us by §33E. In some cases our

opinions have discussed a critical factor,

such as “harmless error" in the Garcia

case, as if it were a separate and

independent issue; in others we have

relied on several factors as elements in a

composite decision. Where the Constitution

does not require reversal, however, and in

the absence of objection or exception, our

decisions are consistent with the standard

that we reverse only upon a showing of

grave prejudice or substantial likelihood

that a miscarriage of justice has occurred.

That standard calls for a decision that

is essentially discretionary. Discretionary

decisions by individual judges inevitably

produce variations in result in substantially

similar factual situations. See, e.g.

Matter of Troy, 364 Mass. 15, 38-39 (1973)

(bail determinations); Rosenberg, Judicial

Dicretion of the Trial Court, Viewed from

Above, 22 Syracuse L. Rev. 635, 663 (1971).

Statements explanatory of such decisions

may serve “no sharp analytic purpose."

See Gavin v. Commonwealth, 367 Mass. 331

342 (1975) ( criminal sentences). At

least one Justice of this court has found it

difficult to rationalize our decisions.

-5 3=-

See Commonwealth v.. Hughes, Mass. P

(1980)" (Liacos, J., dissenting); Common-

wealth v. Garcia, Mass. , (1980) ”

(Liacos, J., dissenting). It is quite

likely that other Justices, though not

moved to write separate opinions, would

have analyzed some of the cases very

differently if they had been so moved. See

Greenawalt, Discretion and Judicial Decision:

The Elusive Quest for the Fetters That

Bind Judges, 75 Colum. L. Rev. 359, 379-

380 (1975); Schaefer, Precedent and Policy,

34 U. Chi. L. Rev. 3, 7-10 (1966). Al-

though we have sometimes engaged in the

dangerous practice of comparing discretionary

decisions, we have recognized that "§33E

review is not simply a process of ‘color

matching.' “" Commonwealth v Coleman, 366

Mass. 705, 715 (1975). Contrast Griffin

v. General Motors Corp., Mass. (1980) ,”

where we declined to compare the size of

jury verdicts in personal injury cases.

“Mass. Adv. Sh. (1980) 1175, 1183.

‘Mass. Adv. Sh. (1980) 21, 44.

“Mass. Adv. Sh. (1980) 937, 946.

°%

-54-

5. The present case. Our 1978 decision

in theGrace cases was not subject to §33E.

See Commonwealth v. Smith, Mass. ,

(1980) .* The charge was less deficient

than those in the Ferreira and Garcia

cases in that it emphasized "moral

certainty." Nevertheless, if the case

had been tried after the Ferreira decision

and a proper exception had been taken we

would doubtless have held that there was

error. See Commonwealth v. Hughes, Mass.

(1980).” But not only was there no objec-

tion or exception, experienced counsel

failed to raise the point in his first

motion for a new trial or in his first

appeal. That appeal was argued after

the Mullaney decision in the Supreme

Court. The main defect in the charge

on reasonable doubt had been disclosed in

an Opinion of this court published before

the charge was given. Commonwealth v.

Bumpus, 362 Mass. 672, 682 (1972), judg-

ment vacated on other grounds, 411 U.S.

945 (1973), aff'd on rehearing, 365 Mass.

* Mass. Adv. Sh. (1980) 1683, 1689.

YMass. Adv. Sh. (1980) 1175, 1180.

?%

-55-

66 (1974), reviewed on habeas corpus

sub nom. Bumpus v. Gunter, 452 F.Supp.

1060 (D.Mass. 1978), No. 74-5197-G,

Memorandum and Order denying habeas corpus

(D.Mass. Jan., 8, 1980). The repeated

failures of counsel to raise the point

suggest that it was not thought to be

critical. :

Hence, so far as the point is one of

State law, we adhere to our prior decision.

So far as the question is whether, as a

Matter of Federal constituitonal law,

the jury instructions on reasonable doubt

require a new trial, we defer to the

decision of the Court of Appeals in Grace

v. Butterworth, F.2d » (et Caz.

1980).% That Court reviewed the question

at some length, and concluded: "Because

we find the jury charge as a whole to have

been essentially sound, we do not believe

that this explanation [explicit statement

of ordinary life analogies] had a sufficiently

devastating impact on the trial to amount

to a denial of due process." We agree

with that conclusion. See Commonwealth

v. Smith, Mass. (1980) .°4

2No. 79-1422, slip op. at 7-8 (lst Cir.

February 5, 1980).

98vass. Adv. Sh. (1980) 1683.

-56-

6. The new constitutional claim. What

we have said so far leads to the conclusion

that our 1978 decision in the present

case is distinguishable from our decisions

in the Ferreira and Garcia cases, and that

the issue is not fairly presented whether

we have "proceeded so incoherently and

capriciously, and with such lack of even-

handedness, as to have violated the equal

protection and due process standards of

the federal Constitution." See Grace v.

Butterworth, No. 79-1422, Memorandum and

Order (lst Cir., July 23, 1980). Since,

however, the Court of Appeals is free to

take a different view of the questions we

have discussed, and even to change its view

as to what Federal constitutional law re-

quires, and since it seems to have taken

the defendants’ claim seriously, we briefly

consider the issue that would be presented

if it were concluded that in our 1978

decision in the present cases we failed to

apply the same rules announced more than a

year later in the Garcia case. In our

view that situation would not present a

substantial Federal question, since the

rules so announced were not necessary to

the decision in the Garcia case. More-

over, a State court's misapplication of

7.

of Fo

its own law generally does not raise a

constitutional claim cognizable in a pebient

habeas corpus proceeding. Beck v. Washington,

369 U.S. 541, 554-555 (1969).

The order denying the defendants’ motion

for a new trial is affirmed on rehearing.

SO ORDERED.

LIACOS, J. (concurring). I agree with

the statement of the court in part 6 of its

Opinion that in this case "the issue is

not fairly presented whether we have

"proceeded so incoherently and capriciously,

and with such lack of even-handedness, as

to have violated the equal protection and

due process standards of the federal

Constitution.' See Grace v. Butterworth,

No. 79-1422, Memorandum and Order (lst

a

Cir. July 23, 1980)." Supra at ‘

Consequently, I join in that part of the

court's opinion and, it being dispositive

of the petition for reconsideration, concur

in the result reached by the court.

"Mass. Adv. Sh. (1980) at 2353.

r%

-58-

LAW OFFICES

DANIEL F. FEATHERSTON, JR.

7 WATER STREET, BOSTON, MASSACHUSETTS O2109 + (617) 227-7830

DANIEL F. FEATHERSTON, JR.

* NORMAN F. LAZARUS

ROBERT A. SHERMAN

October 5, 1978

The Honorable Edward F. Hennessy

Supreme Judicial Court

New Court House

Pemberton Square

Boston, Massachusetts 02108

Re: Commonwealth v. Frank Grace

Re: Commonwealth v. Ross M. Grace

My Dear Chief Justice Hennessy:

In accordance with the provisions of

Rule 27 of the Massachusetts Rules of

Appellate Procedure, I submit herewith

appellants’ Petition For Rehearing in

the subject cause, because the Court's

opinion erroneously endeavors to construct

distinctions between this case and Common-

wealth v. Ferreira, Mass. Adv. Sh. (1977)

1594. There are no valid distinctions,

and if a new trial is not also afforded

the Graces, the Court itself thereby

violates, unnecessarily, their Fourteenth

Amendment rights.

7%

-59-

The Court's opinion first says

(Slip opinion 2), "that [the Graces' ]

trial counsel took no exception to the

reasonable doubt portion of the charge:--

but no exception was taken in Ferreira

either, yet that did not deter the Court's

affording the required relief:

"While defense counsel

did not specifically except

to this portion of the charge

[definition of reasonable

doubt], we may properly

consider the issue under

our §33E powers...." Id. at

1608, n. ll.

The Court next attempts to distinguish

Ferreira by noting (Slip opinion, 2-3)

"that the judge's charge concerning

reasonable doubt in these cases, unlike

Ferreira, emphasized ‘moral certainty'...."

That simply is not true. It is true that

in reading his script in Ferreira Judge

Brogna somehow skipped four words, two of

which were "moral certainty", which he did

include in his charge in this case, but it

it totally incorrect to say that they were

"emphasized." The relevant part of the

Ferreira charge reads "...you must be sure

to a moral certainty that the defendant is

guilty...." (R. 4). That is the only passing

7%

-60-

mention of the words "moral certainty”

There was no emphasis at all. To say so

is to misstate the record, and to attempt

to construct a non-existent distinction

between the two cases.

The Court's final attempt to avoid the

relief here mandated is as invalid as

the first two. The Court says (Slip

Opinion, 3), that the exception to the

"charge on parole consequences” "has been

waived" because it was not argued "as

error at the original appeal." The two

cases cited for that proposition do not so

hold. They hold that “assignments of

error not briefed are deemed waived." The

subject error was not assigned "at the

original appeal", nor, of course, could it

have been, because it was not then error:

the new rule of law in Ferreira was not

promulgated until a year later. Common-

wealth v. Burnett, Mass. Adv. Sh. (1976)

2171, which could perhaps be viewed as

bearing the seed of Ferreira, was not

even handed down until after the Graces'

convictions were affirmed by this Court.

Finally, I take personal objection to

the uncalled for "shot" taken at my

professional competence in the first

paragraph of the Court's opinion: my

ostensible failure to obtain “approval

from a single justice to pursue these

7%

-61-

appeals. The Court completely over-

looks the fact that the Court itself, on

its own motion took this case on direct

appeal. That, surely, is recognition

that the appeal presents "a new and

substantial question", as per G.L. c.

278, §33E, and obviated my seeking any

additional approval "from a single

justice." The Court's own action waived

any such "make work project", but the

opinion ignores that fact. It is unfair

to me, and advances nothing to observe

that the appeal is "not properly before

us"--the Court itself brought up the appeal.

I can fully appreciate the Court's

quite natural reluctance, proper for

various reasons to order a new trial in any

criminal case, particularly, perhaps, a

first-degree murder case four and a half

years old, but on this record that result

simply cannot be avoided. For the Court

to deny the Graces the relief afforded

Ferreira on a record so similar the names

are about the oniy difference, also need-

lessly injects constitutional error into

this case: it starkly deprives them of

due process of law, a right guaranteed

them by the Fourteenth Amendment to the

Constitution of the United States of America.

7%

”

-62-

The Court is respectfully requested to

withdraw its initial opinion. Should there,

perhaps, be some concern about the

precedential mischief which might be

worked by an opinion granting the Graces

a new trial, the Court can easily avoid

that by assigning the case to the summary

disposition calendar (the Court may recall

that the Commonwealth joined the appellants

in a motion asking that the case be so

assigned in the first instance), and simply

order a new trial without an opinion.

Respectfully yours,

/s/ Dantel F. Featherston, Jr.

Daniel F. Featherston, Jr.

CC: Special Asst. District

Attorney Peter B. Gay

DELIVERED BY IIAND

|

~¢4-

Relevant portions of Commonwealth v. Ferreira, 37:

Mass. 116 (1977)

—

The defendant also testified about

statements he made to the police, or in

their presence. On direct examination,

he testified that after he was apprehended

he was asked where the owner of the

Cadillac was and disclosed that Silva was

on the third floor of the house across

the street. ° He further testified that

he requested Detective Pedro have the gun and

his hands checked, but that no tests were

run on his hands. On cross-examination,

the Commonwealth elicited that, after

the defendant had been advised of his

rights at the police station, Silva came

into the station and accused him of killing

Officer Ruggiero. The defendant responded,

"Is that right, Joe?" On redirect examina-

tion, the defendant was asked by his counsel

to explain why he did not give the policwa

statement at the station, but this question

was exluded and counsel excepted. ’

Srhe defendant did not recall asking Detective

Carey net to tell Silva that he told him where Silva

was, or to forget that he had advised him of his rights.

"On cross-examination, the Commonwealth

attempted to impeach the defendant by introducing

his record of prior convictions. None of his prior

convictions appears to have involved the use of

firearms.

- |

-64-

Other defense witnesses. Diane Carrita,

the woman who lived with the defendant,

testified that she had accompanied the

defendant to Silva's apartment on the day

on which Silva testified that the defendant

had left the box of bullets there, but said

that she had not seen the defendant ever

bring bullets there. |

Theredore Souza testified that he was

the owner of the Charter Arms .38 caliber

gun. He stated that he knew both the

defendant and Silva, but gave neither of

them the gun. He agreed that he might have

left it at the service station he owned on

Pleasant Street, which both the defendant

and Silva frequented.

1. The Charge.

The judge charged the jury in substance

that, if they found the defendant guilty of

murder in the first degree, he would be

sentenced to life imprisonment witout eligi-

bility for parole, while if they found him

guilty of murder in the second degree, he

would also be sentenced to life imprison-

ment but would be eligible for parole after

fifteen years,° and defense counsel excepted.

Srhe judge's full charge on this point was as

follows: “As I said before, there is one crime of

murder; there are two degrees. They differ principally

in the punishment. And because you, in effect, have to

determine the degree of murder, effectively impose the

punishment, I think it only fair that I tell you what

the difference in the punishment is.

-65-

This portion of the charge was error.”

We have long held that the sentencing

consequences of a verdict may not be sub-

mitted to the jury because the jury's func-

tion is to reach a verdict based solely on

the evidence presented to them considered

in light of the judge's charge to them,

concerning the applicable legal standards..

The degree of murder is for the jury to

determine. G.L. c. 265, §1. However, the

jury's function in this respect is not

to weigh possible verdicts with an eye

toward dispensing mercy in certain cases or

imposing heavier penalties in others. Rather,

the jury's function is solely one of fact

finding with respect to the legal standards

regarding innocence or guilt. The jury has

a duty to return a verdict of guilty of

8 (continued)

"A person convicted of first degree murder

now, under recent Supreme Court decisions and agreed

in this case, will be sentenced to life imprisonment

without eligibility for parole. He spends the rest

of his life in prison except if he is pardoned by

the Governor the Council.

"A person convicted of second degree murder

is similarly sentenced to life imprisonment. He is

eligible--I don't say he has to make it--but he is

eligible for parole in fifteen years."

*The Commonwealth concedes in its brief

that this portion of the charge was erroneous but

argues that the error was harmless.

|

-66-

murder in the first degree only if they

conclude that the evidence before them

establishes beyond a reasonable doubt that

the defendant committed a murder falling

within one of the three statutory categories

of murder in the first degree. Conversely,

the jury have a duty to return a verdict of

murder in the second degree only if they

conclude that the evidence before them estab-

lishes beyond a reasonable doubt that the

defendant committed a murder which was not

proved beyond a reasonable doubt to be

murder in the first degree. Commonwealth

v. Dickerson, 372 Mass. 783 (1977).

If the jury could properly exercise a

dispensing function, an argument might

plausibly be made that they should be

instructed as to the practical consequences

of their verdicts.However, we firmly

rejected that view in Dickerson, in reaching

a result entirely consistent with our long-

standing rule that sentencing and parole

considerations are not matters within the

jury's proper sphere.

"The principal argument for rejecting

the practice of instructing juries as to

the legal consequences of their verdicts in

criminal cases seems to lie in the convic-

tion that, in reaching their verdicts, jurors

a

7%

=-67-

should be shielded from extraneous

influences and should arrive at their

verdicts only on a dispassionate con-

sideration of the relevant and credible

evidence presented to them in the adversary

process.... To inform jurors of the

consequences of their verdicts is apparently

seen...as inviting result-oriented ver-

dicts and possible deviation from the

basic issues of a defendant's guilt or

innocence. This process, if allowed with-

out restriction, could lead to the jury's

usurpation of the judge's sentencing pre-

rogatives and duties and the Legislature's

policy determining functions." Common-

wealth v. Mutina, 366 Mass. 810, 817 (1975).

In Mutina, we reversed a conviction

of murder in the first degree, holding

that, for all trials and retrials after

the date of that opinion, a defendant is

entitled to an instruction regarding the

consequences of a verdict of not guilty

by reason of insanity if a timely request

for such instruction is made. We stressed,

however, that we did not depart from “the

long-standing general rule that neither

sentencing nor parole may appropriately

be considered by the jury in reaching

their verdict." We concluded that the

ry

-68-

jurors might well have based their verdict

not on the evidence, but on a desire to

ensure the continued confinement of the

defendant. Instructing the jury on the

consequences of a verdict of not guilty

by reason of insanity may, in an appropriate

case, afford the same protection as does

the application of the general rule that

sentencing consequences are not within

the jury's province: it prevents extraneous

factors from interfering with or even

totally eclipsing the jury's deliberations

with respect to the evidence before them.

"{U]Jnless otherwise provided by statute,

the jury in this Commonwealth have no

responsibility for, or authority to

recommend, attempt to influence, or other-

wise participate in any way in, the

sentencing of a defendant whom they have

found guilty. It necessarily follows that

the jury have no right to determine the

crime of which the defendant is guilty,

or the degree thereof, on the basis of

the penalty which they believe the defendant

should or might receive." Commonwealth v.

Mutina, supra at 824-825 (Quirico, J., con-

curring in part and dissenting in part).

See Commonwealth v. Goodwin, 356 Mass. 632

(1970); Commonwealth v. McNeil, 328 Mass.

436 (1952).

7%

-6§ 9-

The general rule is so well established

that the only real question is whether

there was reversible error here. We

turn now to that issue.

In Commonwealth v. Burnett, 371 Mass. 13

(1976), we considered a charge similar to

the one now before us. We stated in that

case, at 16: "The trial judge is not to

explain to the jury what parole conditions

are for murder in the first degree or what

they are if the defendant is found guilty

of murder in the second degree. Such

instructions tread closely to reversible

error and are to be avoided." We con-

cluded that the charge was not reversible

error for three reasons. First, defense

counsel did not except to that portion of

the charge and, while we could consider

the issue under our §33E powers, when the

error was not brought to the judge's

attention, we would reverse only ona

showing of "grave prejudice." Second,

defense counsel had commented on

sentencing in his closing argument, and

the judge may have considered a curative

instruction necessary. Third, the Common-

wealth had presented a very strong case

of murder in the first degree against the

defendant.

-70=

None of these three factors is present

in this case. Defense counsel took timely

exception to the charge arguing that the

charge enhanced the possibility that the

jury would return a verdict of murder

in the first degree because they mivht

reasonably view the unprovoked murder

of an on-duty police officer with

particular revulsion and be guided in

their deliberations by that revulsion

rather than by the evidence before them.

The evidence here demonstrated clearly

that a vicious and unprovoked murder was

committed and that one of two men, the

defendant or Silva, committed that murder. ?°

While there was evidence from which the

jury could have concluded that the defen-

dant was guilty of murder in the first

degree, we think that the question was not

so free from doubt as to render the charge

harmless beyond a reasonable doubt.

We have in this case a classic duel of

credibility: Silva testified that the

defendant fired the shots , and the

defendant testified that Silva did the

shooting. While the jury could have

chosen to accept Silva's testimony rather

than that of the defendant, Silva's

testimony was hardly disinterested, as he

10mnere was no evidence of joint enterprise,

and the judge accordingly gave no instruction on the

9 see | were ode

rs

=JFi-

was also under indictment for the murder

at the time of the trial. The Commonwealth's

other evidence did tend to favor the proposi-

tion that the defendant had fired the shots

rather than Silva but cannot be said to

have pointed decisively to the defendant.

Nor does the evidence in this case

compel the conclusion that if the defendant

did fire the shots he was guilty of murder

in the first degree. There was extensive

testimony that the two men had been drinking

very heavily for a period of seventeen hours

prior to the shooting. The judge quite

properly charged the jury that, while

intoxication would not excuse the crime

of murder, if they found that the defendant

had fired the shots, they might conclude

that his degree of intoxication was such

that he was incapable of forming the requisite

deliberate premeditation to support a

conviction of murder in the first degree.

See Commonwealth v. Taylor, 263 Mass. 356,

363 (1928). The jury returned after three

hours' deliberation to request that the

judge clarify the distinction between

murder in the first and second degrees.

We are unable to conclude that the judge's

charge on sentencing consequences did not

have a prejudicial impact on the jury.

7%

-72-

It can be argued that, as a result of

the erroneous instructions as to sentencing

this court should order that the verdict as

to murder in the first degree should be

vacated and a verdict of guilty of murder

in the second degree should be entered.

G.L. c. 278, §33E. See Commonwealth v.

Rego, 360 Mass. 385, 393-397 (1971). The

premise is persuasive that the impact of

this aspect of the charge could be

prejudicial only as to the degree of

murder. The reasoning here is that the

jury's verdict establishes conclusively

that they decided that the defendant, rather

than Silva, committed the murder, and

that the erroneous instructions could not

have affected their deliberations in

reaching that conclusion.

We conclude, neverthless, that the

defendant is to have a new trial, rather

than a reduction of the verdict to murder

in the second degree. Any doubt we might

have on this score is resolved by the

judge's charge on reasonable doubt.?}

llinile defense counsel did not specifically

except to this portion of the charge, we may

properly consider the issue under our §33E powers.

Commonwealth v. Burnett, 371 Mass. 13 (1976).

Viewing the charge in its entirety, we must con-

clude that there was grave prejudice to the

defendant.

7%

=-7 3<

We consider this portion of the charge in

light of the fact that, as emphasized supra,

the evidence of the defendant's guilt was

not overwhelming. We also consider that no

part of the usual instructions to juries

in criminal cases is of more significance

than the discussion of reasonable doubt.

The judge charged the jury that "[y]Jou

must be as sure as you would have been any

time in your own lives that you had to make

important decisions affecting your own

economic or social lives. You know, any

time that you had to make an important

decision, you couldn't be absolutely,

mathematically sure that you were doing the

right thing--you weigh the pros and cons;

and unless you were reasonably sure beyond

a reasonable doubt...." He went on to

give examples of these "important" decisions:

"(W]hether to leave school or to get a job

or to continue with your education, or to

get married or stay single, or to stay

married or get divorced, or to buy a house

or continue to rent, or to pack up and leave

the community where you were born and where

your friends are, and go someplace else

for what you hoped was a better job."

We think these examples understated

and tended to trivialize the awesome duty

of the jury to determine whether the

7%

-74-

defendant's guilt was proved beyond a

reasonable doubt. We have previously

criticized the type of analogy drawn

here. See, e.g., Commonwealth v. Fielding,

371 Mass. 97, 116-117 (1976); Commonwealth

v. Gilday, 367 Mass. 474, 497-498 (1975);

Commonwealth v. Coleman , 366 Mass. 705,

712 (1975); Commonwealth v. Ferguson, 365

Mass. 1, 12 (1974); Commonwealth v. Bumpus,

362 Mass. 672, 681-682 (1972), judgment

vacated and remanded on other grounds, 411

U.S. 945 (1973), aff'd on rehearing, 365

Mass. 66 (1974); Commonwealth v. Libby, 358

Mass. 617, 621 (1971). The charge now

before us is notably bereft of the saving

graces present in charges which we have

previously criticized but found not to be

reversible error when taken in their

entirety.

In Commonwealth v. Bumpus, supra at 682

in which the sole example was a reference

to the degree of certainty a juror would

want in deciding whether to undergo major

heart surgery, we stated: "The inherent

difficulty in using such examples is that,

while they may assist in explaining the

seriousness of the decision before the

jury, they may not be illustrative of

the degree of certainty required." We

-%

"

-75-

think the examples used here, far from

emphasizing the seriousness of the decision

before them, detracted both from the

seriousness of the decision and the Common-

wealth's burden of proof. :

Accordingly, we conclude that the

judgment must be reversed. We think that

there was reversible error both in the

portion of the judge's charge dealing with

sentencing and parole consequences and in

his charge on the reasonable doubt standard.

While this charge goes unusually far

afield, we think the better course is that

all references to examples taken from

the jurors' lives should be avoided. We

have previously expressed this "wish."

Commonwealth v. Coleman, 366 Mass. 705, 712

(1975). The degree of certainty required

to convict is unique to the criminal law.

We do not think that people customarily

make private decisions according to this

standard nor may it even be possible to do

so. Indeed, we suspect that were this

standard mandatory in private affairs

the result would be massive inertia.

Individuals may often have the luxury of

|

-76-

undoing private mistakes; a verdict of

guilty is frequently irrevocable. !

2. Limitation of Redirect Examination

The defendant raises one further issue

which we consider, since the issue may arise

on retrial of this case. On cross-

examination, the Commonwealth elicited

testimony from the defendant that while he

was in custody at the police station and after

he had been advised of his Miranda rights

Silva, who was also in custody, accused

the defendant of killing Officer Ruggiero,

to which the defendant replied, "Is that

right, Joe?" On redirect examination, de-

fense counsel asked the defendant to

explain why he gave no statement to the

police. The question was excluded; defense

counsel excepted, but made no offer of proof.

120. reiterate the admonition we expressed

in Commonwealth v. Therrien, 371 Mass. 203, 209.

(1976), quoting from Commonwealth v. Gerald, 356

Mass. 386, 390 (1969): "Explanation of ‘reasonable

doubt,' we think, is usually best made in close

reliance on the time-tested language of Common-

wealth v. Webster, 5 Cush. 295, 320 [1850]." It is

fair to say thet unimpeachable instructions as to

reasonable doubt which we have reviewed in many other

cases have -invariably been based on the key phrases

of Webster, as modified and unquestionably improved

by some variations from the exact language of the

Webster case.

>

-77=

We think that if this case is retried,

this evidence should be admitted, subject

to the making of an appropriate offer of

proof. The Commonwealth argues that since

under Doyle v. Ohio, 426 U.S. 610 (1976),

a defendant's silence during custodial

interrogation is not competent or material

|

-78-

Relevant Portions of Commonwealth v. Garcia,

Mass. Adv. Sh. (1980) 37

substance of questions, answers, and court

rulings. Although the judge did not direct

that pauses be allowed for translation

while other witnesses testified, the

interpreter said she translated for Garcia

at the same speed as the witnesses were

speaking. It is evidence from the record

that Garcia had an interpreter if and when

he needed one, and that his rights were

fully protected.

5. Jury instructions. Garcia alleges

three errors in the charge to the jury:

inadequate instructions on the meaning

of “reasonable doubt"; failure to instruct

the jury that the Commonwealth bore the

burden of proving that his confession

was voluntary; and improper instructions

on the standard by which to assess the

voluntariness of his confession.

a. Reasonable doubt. The defendant

alleges that the definition of reasonable

doubt does not comport with our decision

in Commonwealth v. Ferreira, 373 Mass. 116,

P (1977) .° There can be little ques-

tion that the charge given in this case

Mass. Adv. Sh. (1977) 1594, 1608-1610).

-79=

was very similar to that given in Ferreira.”

Before considering the propriety of

the present charge, however, we note that

*The judge charged the jury that: "The words,

"beyond a reasonable doubt,' on the other hand, so

mean that after hearing the evidence, after dis-

cussing it among yourselves, after determining what

part, if any, of any witness's story you're going to

believe, after determining what inference you're

going to draw from the evidence, you believe, all

twelve of you, that you must be sure, as sure as

you want to be when in your own lives you had to

make important decisions involving your personel,

your social or your economic lives. For example, I

am sure that all of you at some time or another in

your lives have had to decide whether to quit school

or to go on with your education, whether to get

married, whether to stay single, whether to get

divorced or stay married; whether to buy a house or

nor, whether to increase the mortgage on the house or

not, and when you have had to make this type of a

decision, you have weighed the pros and cons. You have

carefully thought about it, and if there was a reason-

able doubt in your mind that you were not doing the

right thing, then you didn't do it. I am not talking

about decisions that you have to make of a routine

nature, like what color tie to put on in the morning,

whether to wear a blue shirt, or what color beads to

wear with a particular dress, or whether to buy a

Ford or a Chevrolet; I'm talking about more important

decisions in your own lives where you weighed the

pros and cons seriously and knowing that it is

impossible to be absolutely sure, for example, that

you were doing the right thing when you decided to

get married or get divorced, to buy a house, but if

you had a reasonable doubt in your mind that this

was not the right thing to do, then you didn't do it,

this is what the law means by the expression, ‘beyond

a reasonable doubt,' that type of sureness that compel-

led you to act when you, yourself, hed to make

important decisions."

- |

-80-

defendant's counsel did not object to that

portion of the charge which defined reason-

able doubt. In the absence of an objection

and exception, although this court may still

find reversible error under G.L. c. 278, §33E,

it will do so only “upon a showing of grave

prejudice or substantial likelihood that

a Miscarriage of justice has occurred."

Commonwealth v. Roberts Mass. » °

(1979). Commonwealth v. Burnett, 371

Mass. 13, 16 (1976) 10 Because we do not

require that defense counsel foresee

developments in the case law, we shall

consider this issue, and review the

propriety of the reasonable doubt

charge according to the standard stated

above.

The constitutionally significant error,

if any, in the charge is not that it

referred generally to important decisions

PMass. Adv. Sh. (1979) 1302, 1309-1310.

107. is also our "unbroken practice" not

to allow use of a motion for new trial to compel

a judge to review questions of law which could

have been raised at the trial. Commonwealth v.

McLaughlin, 364 Mass. 211, 229 (1973). Common-

wealth v. Grace, Mass. » (1978) (Mass.

Adv. Sh. [1978] 2697, 2698).

-8l-

in the jurors' daily lives. Rather it

is the use of specific examples which, "far

from emphasizing the seriousness of the

decision before [the jurors], detracted both

from the seriousness of the decision and

the Commonwealth's burden of proof." Ferreira,

surpa at - .2 We have consistently

criticized the “personal decision-making"

approach, but in the absence of specific

examples have found no error. See

11

Commonwealth v. Williams, Mass. ’

(1979)*; Commonwealth v. Allen, Mass.

; (1979)° Commonwealth v. Adrey,

Mass. , (1978) *; Common-

wealth v. Seay, Mass. - (1978)";

ll

State and Federal courts, including the

United States Supreme Court, have consistently

approved general references to the daily lives of

jurors. See, e.g. Holland v. United States, 348

U.S. 121, 139140 (1954); Hopt v. Utah, 120 U.S.

430, 439-441 (1887); United States v. Robinson,

546 F.2d 309, 313 (9th Cir. 1976); cert. denied

sub nom. Chew v. United States, 430 U.S. 918 (1977);

Foran v. Metz, 463 F.Supp. 1088, 1092 (S.C.N.Y. 1979).

The rule in Federal Courts is that these general

references should be phrased in terms of doubts which

would cause jurors to "hesitate to act" in their

own decisions, rather than those that would make

them "willing to act." Holland, supra, at 140.

IMass. Adv. Sh. (1977) at 1608-1611.

"Mass. Adv. Sh. (1979) 1431, 1449.

SMass. Adv. Sh. (1979) 863, 871.

“Mass. Adv. Sh. (1978) 3008, 3018.

“Mass. Adv. Sh. (1978) 1994, 3006-3007.

-82-

Commonwealth v. Canon, 373 Mass. 494, (1977)

cert. denied, 435 U.S. 933 (1978)”; Common-

wealth v. Gilday, 367 Mass. 474, 497 (1975);

Commonwealth v. Lovell, Mass. App. Ct.

, (1978).%

Only once before have we considered a

charge which included specific examples,

and we found the use of analogies in the

context of the entire charge, not to

constitute reversible error. Commonwealth v.

Grace, Mass ’ - (1978)*

Grace was an appeal from the denial of a

motion for new trial. Here, in addition,

there is a direct appeal. We hold that

the charge in this case, like that in

Ferreira, supra, is a constitutionally

inadequate definition "beyond a reasonable

doubt." The use of specific examples |

"trivializes" the standard of proof in the

direction of the "preponderance of the

evidence" standard. Cf. Bumpus v. Gunter,

452 F.Supp. 1060, 1061 (D.Mass. 1978)./

“Mass. App. Ct. Adv. Sh. (1978) 289, 297.

Mass. Adv. Sh. (1978) 2697, 2698-2699.

125. do not believe that it is wise to dissect

a charge to determine if each part is constitutionally

adequate. Instaed we think a court must consider a

charge in its totality to assess the impression it

may have left with jurors. Commonwealth v. Rodrigues,

370 Mass. 684, 690-691 (1976), and cases cited.

-~83-

Although we find constitutional error

in this charge, we must also consider

whether this holding applies to the

present defendant, whose trial took place

some seven years before our decision in

Ferreira, supra. We believe that In re

Winship, 397 U.S. 358 (1970), made retro-

active by Ivan v. New York, 407 U.S. 203°

(1972), mandates retroactive application

of Ferreira. We emphasize, however, that

we will scrutinize more carefully jury

instructions given after the date of

Ferreira. Cf. Commonwealth v. Rodriguez,

370 Mass. 684, 692 (1976); Commonwealth v.

Collins, Mass. . (1978) ;7

Commonwealth v. Stokes, Mass. ’

(1978) .”

We must next consider whether the

error in the present case, while of

constitutional dimension, was harmless.

Chapman v. California, 386 U.S. 18 (1967).

Commonwealth v. MacDonald, 368 Mass. 395,

YMass. Adv. Sh. (1978) 627, 631.

“Mass. Adv. Sh. (1978) 610, 620.

48yass. Adv. Sh. (1979) 647, 657.

i

-84-

399 (1975). Commonwealth v. Hangar,

Mass. ’ (1979). 74 The reasonable

doubt standard is most crucial in cases

where central facts (such as identity,

or the occurrence of an event) are at issue,

and crecibility plays a key role. The

present case involved no such dispute;

the defendant testified and corroborated

all of the essential elements of the

Commonwealth's case. The homicide here

occurred in broad daylight in the presence

of witnesses who testified. Even if Garcia

had not testified, the circumstantial and

direct, eyewitness testimony implicating

him was very strong. The only issues the

jury faced were whether the killing was

justified in self-defense and, if so,

whether Garcia exercised that right

imperfectly (to result in manslaughter)

or, if not, whether the killing was first

or second degree murder. Therefore, unlike

Ferreira, where we expressly stated that

we considered the charge in the light of

"not overwhelming" evidence of Ferreira's

guilt, Ferreira, supra, at ,bb the

present case involves overwhelming evidence

of guilt. We are convinced beyond a

reasonable doubt that the error did not

contribute to the guilty verdict, and

bbyass. Adv. Sh. (1977) at 1608.

-85-

and that it was therefore harmlass.

See Chapman, supra at 22-24.

b. Burden of proof. Garcia

further maintains that the judge

failed tc tell the jury that the Common-

wealth bears the burden of proof of the

voluntariness of his statements. While

the judge did not specifically so state,

he told the jury that the Commonwealth

must prove every element of the case

beyond a reasonable doubt, and then

included the confession (and its voluntari-

ness) as part of the case. The jury

could easily have inferred that the Common-

wealth had to prove the voluntariness of

Garcia's confession beyond a reasonable

doubt. Although as discussed above,

the judge's definition of reasonable doubt

was deficient, even assuming--and we do

not decide this--that the instructions

effectively reduced the standard of

proof to preponderance of the evidence,

that is the Federal cosntitutional

standard for voluntariness of a confession.

Lego v. Twomey, 404 U.S. 477, 486 (1972).

While it is preferable that a trial

judge include in the jury instructions on

7%

-86-

voluntariness, if given,?? and explicit

instruction on the burden of

l3mhis court has never held, as a matter

of constitutional law, that the defendant has a

right to have the jury reconsider the voluntariness

of his confession. Commonwealth v. Alicea, supra,

at ( Mass. Adv. Sh. [1978] at 2725). Common-

wealth v. Pratt, 360 Mass. 708, 714-715 (1972).

Cf. Commonwealth v. Harris, 371 Mass. 462 (1976).

In Harris, we held that as a matter of Massachusetts

practice, where a judge admits a confession in

evidence after determining that it was made volun-

tarily, and there is evidence of coercion, it is

reversible error not to submit the issues of

voluntariness to the jury. Id. at 474. The

United States Supreme Court recognized that some

States follow the "Massachusetts procedure”, but

it hela that there is no Federal constitutional

right to have the jury reconsider voluntariness.

Lego v. Twomey, 404 U.S. 477, 481 n. 3, 489-490

(1972).

The Federal Constitution of course requires

that at some point in the proceedings before a

confession is admitted in evidence, the defendant

must "have a fair hearing and a reliable

determination [by a judge] on the issue of

voluntariness, a determination uninfluenced by the

truth or falsity of the confession. Jackson v.

Denno, 378 U.S., 368, 377-378 (1964).

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