464 Mass. 699 (2013)
In
1964, the defendant was convicted of one count of first degree murder and two
counts of armed robbery. The defendant
was sentenced to life in prison. His
trial counsel did not file a notice of appeal and his case was not appealed. Nearly
forty-five years later, the defendant filed a motion for new. His motion was denied without prejudice and defendant
was granted leave to renew the motion subject to the outcome of the appeal of
his codefendant from the denial of a motion for new trial. The defendant did not wait for that outcome
and instead appealed the denial of his motion for new trial. The defendant argued that this appeal should
be viewed under the standard of a direct appeal due failure of counsel during
his trial. He claims he did not appeal for the sole reason of advice from
counsel that such an effort would be meritless. The Supreme Judicial Court asserted
that trial counsel was not ineffective even by a standard adopted ten years
after the trial, so the appeal was reviewed as an appeal from a collateral
attack on a final conviction. This warranted
a review of the other issues to see whether they are structural in nature and,
if not, whether they created a “substantial risk of a miscarriage of
justice.” Commonwealth v. Randolph, 438 Mass. 290, 294 (2002), quoting Commonwealth v. Freeman, 352 Mass. 556,
564 (1967).
The defendant claimed that two of
the errors were structural in nature; (1) that the presumption of innocence
jury instruction suggested that the defendant had the burden of proving his
innocence, and (2) that the defendant’s appealrance
in shackles and guarded throughout the trial was prejudicial. The Supreme Judicial court found that in Commonwealth v. Petetabella, the appeal
of his original codefendant, it was determined that “an error in a presumption
of innocence instruction … does not rise to the level of a structural
error.” 459 Mass. 177, 187 (2011). In Petetabella,
supra, the Supreme Judicial court
concluded that the judge did not abuse his discretion in denying the motion for
new trial on this ground due to the customs at the time regarding security and
the facts of the case . In
the present case, the Supreme Judicial court applied the same reasoning and
concluded that neither of the defendant’s assertions of error are structural
errors. The court then considered whether
the errors created a “substantial risk of a miscarriage of justice,” which
“exists when we have a ‘serious doubt whether the result of the trial might
have been different had the error not been made.’” Randolph,
297, quoting Commonwealth v. Azar,
435 Mass. 675, 687 (year). The Court
concluded that these errors do not create a substantial risk of a miscarriage
of justice and, therefore, affirmed the judge’s denial of the defendant’s
motion.
Written 8/4/2013
