Nos. 09884-09885Commonwealth of Massachusetts Superior Court CRIMINAL MATTER SUFFOLK, ss.
August 29, 1996
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR RELIEF FROM UNLAWFUL RESTRAINT AND MOTION FOR A NEW TRIAL
ROSEMAN, JUSTICE.
This matter comes before the Court on consideration of defendant Jerome Napolitano’s motion for relief from unlawful restraint under Mass.R.Crim.P. 30 (a) and for a new trial under Mass.R.Crim.P. 30 (b). For the following reasons, defendant’s motion for relief from unlawful restraint and for a new trial is DENIED.
BACKGROUND
On March 23, 1978, after a Suffolk County jury trial, defendant Jerome Napolitano was convicted of two counts of first degree murder. Following his conviction, he appealed on three grounds: that the trial judge erred in denying his motion to suppress identification testimony; that the trial judge’s instruction on identification evidence constituted error; and, that improper “bad character” evidence was admitted at trial. Napolitano’s convictions were upheld by the Supreme Judicial Court in Commonwealth v. Napolitano, 378 Mass. 599 (1979). Napolitano was represented by the same counsel at trial and on appeal.
Napolitano filed his first motion for a new trial on August 24, 1984, represented by a different attorney. In support of this motion, Napolitano cited numerous errors that allegedly occurred at trial, and argued that he had received ineffective assistance of counsel and that newly discovered evidence justified a new trial. The motion was denied by the Superior Court on September 4, 1985.
Napolitano filed the present motion on February 8, 1995.[1] In support of his motion, the defendant contends that defects in the definition of the Commonwealth’s burden of proof and the presumption of innocence given in the jury instructions rose to the level of constitutional error. The defendant also contends that other sections of the instruction contain errors of constitutional magnitude, that the trial judge should have given additional instructions sua sponte, that his counsel provided him with ineffective assistance and that the Commonwealth violated his right to pre-trial discovery of exculpatory evidence.
DISCUSSION
As a preliminary matter, the Court examines the propriety of considering the defendant’s motion on its merits. Rule 30 (c) (2) of the Massachusetts Rules of Criminal Procedure ordinarily requires that a defendant raise all post-trial objections in his first Rule 30 motion or be deemed to have waived further collateral review. The Rule states:
(2) Waiver. All grounds for relief claimed by defendant under [this Rule] shall be raised by defendant in his original or amended motion. Any grounds not so raised are waived unless the judge in his discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.
Rule 30 (c) (2) is intended to “establish finality of convictions and to eliminate `piecemeal litigation . . . whose only purpose is to vex, harass, or delay'”. Reporter’s Notes to Rule 30(c)(2), quoting Sanders v. United States, 373 U.S. 1 (1963). “`[A] motion for a new trial may not be used as a vehicle to compel . . . review and [consideration of] questions of law’, on which a defendant has had his day in an appellate court or [on which he has] foregone the opportunity”. Commonwealth v. Watson, 409 Mass. 110, 112 (1991), quoting Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973).
A trial court has the discretion to hear a defendant’s motion under Rule 30(c)(2), but “[the Supreme Judicial Court] has recommended restricting the exercise of that power to `those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result'”. Watson, supra, quoting Fogarty v. Commonwealth, 406 Mass. 103, 107-108 (1989). The defendant has the burden of demonstrating that a miscarriage of justice might result if the merits of his motion are not considered. Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), cert. denied, 115 SCt. 753, quoting Watson, supra.
Napolitano’s most serious contention is that the Court should entertain his motion because the jury instructions defining “proof beyond a reasonable doubt” and the presumption of innocence were constitutionally defective. Errors in the definition of the standard of proof and the presumption of innocence in criminal cases create such a high potential for a substantial miscarriage of justice that motions for a new trial alleging such errors warrant consideration on their merits. See, e.g., Commonwealth v. Gagliardi, supra, at 568 (“We choose not to apply the waiver rule of Watson . . . because if, as the defendant argues, the instruction on reasonable doubt given at his trial was constitutionally deficient in that it permitted the jury to convict the defendant on proof less than proof beyond a reasonable doubt, a substantial miscarriage of justice would result”); Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995) (“A constitutionally deficient reasonable doubt instruction . . . defies harmless error analysis”); Sullivan v. Louisiana, 508 U.S. 275 (1993) (constitutionally deficient reasonable doubt instruction can never be harmless error); Commonwealth v. Cefalo, Civil No. 88593 (Essex Super. Ct. October 1995) (Whitehead, J.). Accordingly, the Court reviews the instant motion on its merits to the extent that it raises possible defects in the trial judge’s definition of the Commonwealth’s standard of proof and the presumption of innocence.
In contrast, the Court does not review other arguments advanced by defendant in support of his motion, ruling that they have been waived by his failure to raise them in his direct appeal or in his first motion for a new trial.[2]
Turning to the merits of the motion under review, the Court views the jury instructions as a whole in determining if their asserted deficiencies rise to the level of constitutional error. Commonwealth v. Schand, 420 Mass. 783, 794 (1995); Commonwealth v. Grant, 418 Mass. 76, 84-85 (1994).
No precise scientific definition exists for the “beyond a reasonable doubt” standard. While the Constitution does not require that a judge recite a particular set of words, “taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury”, Commonwealth v. Pinckney, supra at 342, quoting Victor v. Nebraska, 114 SCt. 1239, 1243 (1994), and on review, the Court is to examine the instruction to determine “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction on proof insufficient to meet the [beyond a reasonable doubt] standard.” Id. at 342.
In Pinckney, the Supreme Judicial Court ordered a new trial in a circumstance where the jury instructions defining “beyond a reasonable doubt” as “moral certainty,” coupled with conflicting definitions of reasonable doubt, could have led a reasonable juror to understand that the defendant bore the burden of some proof at trial.[3] Central to the decision was the circumstance that “following each use of the phrase, the judge gave conflicting formulations of the reasonable doubt standard.” Id. at 347. Compare Commonwealth v. Gagliardi, supra (use of “moral certainty” as definition of “beyond a reasonable doubt” not error where, in each instance when used, the judge immediately expounded on that concept by informing the jury of the high degree of certainty it must possess in order to convict the defendant).
In the charge here, the judge repeatedly used the terms “moral certainty”. That the instruction contained these terms does not by themselves render it constitutionally infirm. Commonwealth v. Robbins, 422 Mass. 305, 316 at note 8 (1996). Here, as a concept, moral certainty, which those words purported to signify, in part was expressed by what it did not embrace: absolute certainty; mathematical certainty; and in part by what it did embrace: that state of mind where “no other conclusion is reasonable on the evidence”.[4] That definition instructed the jury that it must reach its verdict based on evidence presented at trial, not on internal feelings of personal morality. Gilday v. Callahan, 59 F.3d 257, 261 (1st Cir. 1995).
In sum, defendant’s challenge appears to rest more on the brevity of the instruction than on actual error. None of the definitions used by the trial judge distort or have the propensity to confuse the jury about the Commonwealth’s burden of proof. The heart of the defendant’s objection is that the judge failed to include sufficient alternative definitions of “beyond a reasonable doubt” beyond that expressed by the words “moral certainty”, words now criticized by the Supreme Court of the United States as ambiguous and archaic. Victor v. Nebraska, supra; Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam). However, as stated, the jurors were instructed that though they need not be satisfied to an absolute or mathematical certainty, they must reach their verdict based on evidence that convinces them that “no other conclusion is reasonable”, conveying to them the operative aspect of the concept of moral certainty as instructed by him.
The question of whether the trial judge’s instruction rises to the level of constitutional error, however, cannot be resolved without considering the cumulative impact of the other assigned “errors” as follows.
One, the statement to view the evidence “not with the attitude of people eager to acquit, but with the attitude of people seriously endeavoring to find the truth.” The defendant contends that this language intimated to the jury that the Commonwealth was held only to the standard of a “preponderance of the evidence”. While this particular language is criticized in United States v. Gonzalez-Balderas, 11 F.3d 1218, 1223 (5th Cir. 1994), cert. denied, ___ U.S. ___, 114 SCt. 2138, it was not considered error serious enough to merit a new trial.[5]
Two, that portion of the charge in which the judge asked the jury to determine “whether [the defendant] is guilty or not beyond a reasonable doubt”. Defendant argues that this expression intimated a standard of a preponderance of the evidence. However, where, as here, the judge prefaced his definition of “beyond a reasonable doubt” with a clear explanation of the presumption of innocence,[6] any confusion caused by the use of this phrase was constitutionally insignificant. Compare Commonwealth v. Beverly, 389 Mass. 866, 872 (1983) (although charge contained burden-shifting language, since much of the charge was correct, there was no error when the charge was considered as a whole).
Third, a portion of the charge, defendant claims, led the jury to believe that the presumption of innocence disappeared when the Commonwealth’s first proffer of evidence was admitted against him.[7] While the defendant compares the alleged offending language of the text criticized in Commonwealth v. Kane, 19 Mass. App. Ct. 129, 139 (1984)[8] , the judge’s charge simply instructs the jury to weigh the defendant’s testimony according to its judgment of his credibility. Fourth, is a section that asked the jury to consider whether the defendant’s witnesses’ created a reasonable doubt in the jury’s mind, mirroring an almost identical instruction reversed as burden shifting in Commonwealth v. Cobb, 5 Mass. App. Ct. 421, 423 (1977). However, unlike Cobb, the “error” here is preceded by a sentence where the judge stated: “[the defendant] does not have to prove he was not the man”. Since this curative sentence preceded the challenged sentence, a new trial is not necessary. Commonwealth v. Bowden, 379 Mass. 472, 481 (1980); Commonwealth v. Williams, 378 Mass. 242, 243 (1979).
Finally, the defendant contends that a part of the charge in which the judge discussed different fact scenarios that could constitute premeditation, contained error because from it the jury could have understood that they had to agree upon certain facts before they reached a verdict.[9] Fact-finding language constitutes error only when the facts articulated are those the defendant claims obtained. Here, the judge’s finding language referred to those the Commonwealth had the burden of proving. Connolly v. Commonwealth, 377 Mass. 527 (1979).
In assessing the cumulative effect of the foregoing, the Court, viewing the charge as a whole, is to inquire whether there is reasonable likelihood that the jury applied it in an unconstitutional manner — not whether it could have been so applied. Victor v. Nebraska, supra, quoting Estelle v. McGuire, 502 U.S. 62, 73 note 4 (1991). On reading, this Court is satisfied that no such likelihood obtained.
The motion for relief from unlawful restraint and for a new trial is DENIED.
SO ORDERED.
David M. Roseman Justice of the Superior Court
DATED: August, 1996
The defendant has not persuaded the Court that any of these grounds constitute such grave constitutional error and such potential for a miscarriage of justice that the Court should abandon the standard rule of waiver. The defendant also has not persuaded the Court that these grounds, even if accepted as “errors”, significantly affected the jury’s understanding of the Commonwealth’s burden of proof.
The defendant attempts to evade the doctrine of waiver by arguing that his trial counsel and his counsel who prosecuted his first motion during the first motion rendered ineffective assistance by not properly asserting these errors or objecting to the instructions at trial. Specifically, the defendant points to his trial counsel’s failure to object to the judge’s omission of an alibi instruction, a manslaughter instruction, a definition of “inferences” and an “honest but mistaken belief” instruction. To allow a defendant to circumvent the waiver rule of Mass.R.Crim.P. 30 by submitting successive motions for a new trial based on ineffective assistance would render impotent the policy of finality engendered by the Rule.
Finally, the defendant contends that the District Attorney’s practice of maintaining “parallel files” possessing potentially exculpatory materials violated his rights under the United States Constitution. In the Court’s view, that is not a circumstance that is substantially likely to have resulted in a miscarriage of justice at trial.
A defendant in a criminal case does not have to take the stand on his own behalf. He does not have to do anything. He does not have to put on any witnesses. And if he had not, you would not be able to hold that against him.
then his credibility before you, whether you are going to believe what he told you, may be taken into consideration by you along with the other evidence in this case in determining whether he is guilty or not beyond a reasonable doubt.
the presumption of innocence remains with the defendant until evidence of guilt is introduced. It then disappears. . .
. . . [I]f what happened, if you determine that what happened is that after the first couple of shots he either went over and used another gun and emptied the gun into these
people, you may be warranted in finding that this was deliberately premeditated, he thought about it.
After the guy says, “you shot me in the balls,” if that’s what you find happened, he went over and gave him a coup de grace, then you would be warranted in finding deliberate premeditation. Similarly, if you find that after the other victim, from all the evidence, whether there were powder burns which were the first shots, whether it was necessary to effectuate the release of Mr. Weeks, the guy being beaten, to fire more shots, if you feel that he didn’t have to, if this is what happened, go over and finish him off . . . then you would be justified . . . in finding that this was a deliberately premeditated malice aforethought.