Supreme Judicial Court
March 30, 2011
Docket No. SJC-10720
Practice, Criminal, Postconviction relief, New trial, Assistance of counsel, Instructions to jury, Jury and jurors, Empanelment of jury, Presumptions and burden of proof. Felony-Murder Rule. Rules of Criminal Procedure. Constitutional Law, Assistance of counsel, Double jeopardy, Fair trial, Jury, Retroactivity of judicial holding. Intoxication.
Facts
On the night of December 27, 1963, the defendant and Joseph Robideau attended a party for their friend, Gerald Sousa. After drinking heavily, the defendant and Robideau robbed three employees of a market at gunpoint.
After the robbery, the two men rejoined their friends and continued celebrating. The defendant suggested that they "hit" a bar before closing time because it would be full of patrons with money. At about 1 A.M. that night, the defendant, Robideau, and Sousa arrived at a Fall River bar to find the bar owner, a bar employee and a patron. Sousa and the defendant were both armed with guns. The defendant had the bar owner and the bar employee life face down on the kitchen floor. Then, the defendant and Sousa took their wallets. Meanwhile, Robideau held a patron at knife point. When the bar owner "reach[ed] up for" the defendant from the floor, the defendant shot him once, killing him. Sousa fired twice at the employee but missed. As the defendant and Sousa ran out of the kitchen, Sousa took money from the patron’s wallet and hit her over the head with his gun. The three men then fled from the bar.
At trial, defendant, Robideau, and Sousa were tried together. The defendant presented defense theories of insanity and intoxication. He testified at trial, over his attorney’s objection. During cross-examination, he admitted that he carried a gun, "hit" the market and the bar, and shot the bar owner. The defendant testified to his involvement in the planning of the “stick up,” and stealing and dividing the money. He also testified to running from the crime and later asking someone to burn the stolen wallets. The defendant finally testified that he and Robideau went to Providence, Rhode Island the day after the crime, to hide.
On July 2, 1964, all three defendants were convicted of murder in the first degree and other offenses. All were spared the death penalty. The defendant was sentenced to life in prison for murder in the first degree. The defendant did not appeal.
On May 21, 2008, defendant filed a motion for new trial under Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). After an evidentiary hearing, a Superior Court judge denied an amended motion. The court affirmed the motion judge's denial of the motion for a new trial.
Standard of review. The court determined that defendant’s motion was a collateral attack on the final, under Rule 30(b). Therefore, errors were reviewed to determine whether they created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294-296 (2002). On appeal, the court would defer to the motion judge's disposition unless the decision was manifestly unjust, or the trial was infected with prejudicial constitutional error. Commonwealth v. Russin, 420 Mass. 309, 318 (1995).
Motion for a new trial. In the affidavit with his amended motion for a new trial, the defendant asserted that his ineffective trial counsel incorrectly informed him that he could not appeal because he had admitted guilt. As a result, he did not appeal. He also claimed that there were several structural and other errors made at his trial.
Failure to appeal. Defendant argued that this is a direct appeal and not the appeal of a failed collateral attack. The motion judge concluded that the defendant lacked credibility and trial counsel had advised him not to appeal, not that he could not appeal. Counsel reasonably determined that defendant “won” when he was spared the death penalty and he would have faced the death penalty in a new trial. The judge concluded that the defendant accepted his counsel's advice. The court found that the judge's findings were reasonable and supported by the evidence.
The defendant argued on appeal that the United States Supreme Court's decision in Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), applied and the double jeopardy clause of the Sixth Amendment to the United States Constitution would bar the imposition of the death penalty. Sattazahn was not the controlling law at the time and, had he been granted a retrial, defendant would have been exposed to the death penalty. The court could not conclude that defendant did not knowingly and voluntarily waive his right to a direct appeal.
Structural error. Defendant argued that structural errors had occurred that required “automatic reversal without a showing of actual harm." Commonwealth v. Hampton, 457 Mass. 152, 163 (2010), quoting Washington v. Recuenco, 548 U.S. 212, 218- 219 (2006).
Presumption of innocence instruction. The defendant argued that the trial judge's instruction regarding the presumption of innocence was a structural error because it suggested to the jury that the defendant had the burden of proving his innocence. The motion judge held that an error in the presumption of innocence instruction was not a structural error because a presumption of innocence instruction was not required in every case.
When read in context, the instruction did not create a substantial risk of a miscarriage of justice. The judge explained that the Commonwealth had the burden of proving a defendant guilty beyond a reasonable doubt in order to convict him of any offense. The judge sufficiently explained the proof required and the meaning of "reasonable doubt."
Exclusion of women from the jury. The defendant’s motion also alleged that the exclusion of female jurors was a structural error. See Vasquez v. Hillery, 474 U.S. 254, 263 (1986). Cf. Commonwealth v. Hampton, 457 Mass. 152, 163 n. 9 (2010). The trial had thirteen male jurors. Of eleven women questioned, none were seated as jurors; defendant’s counsel struck one, counsel for Sousa and Robideau struck seven, and three were excused for cause. Although the judge wanted two alternates, no fourteenth juror was seated. While a woman was the next prospective juror, the judge excused the rest of the women rather than have only one female on the jury. Neither side objected. Other men were question but the fourteenth jury seat remained empty.
The motion judge ruled that any error was waived because defense counsel's struck all women from the jury. Since no fourteenth juror was seated, women were not unconstitutionally excluded from the jury. Defendant's constitutional right to a fair trial was not implicated.
The defendant had neither a constitutional nor a statutory right to more than twelve jurors. The empanelment of the 13 jurors evinced no bias against or unconstitutional exclusion of women. There was no structural error and no substantial risk of a miscarriage of justice.
Defendant in shackles. Citing Deck v. Missouri, 544 U.S. 622 (2005) (Deck), the defendant asserted that he was tried in shackles and under armed guard in front of the jury, and that trial counsel objected to this treatment. The motion judge found that Deck was not absolute. In light of the defendant’s crime and the courtroom security practices, the precautions were not an abuse of discretion.
Noise outside the court room. The defendant contended that constant noise outside the courtroom impaired the ability of the jury to hear the evidence and violated both his due process rights and right to a fair trial under the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution.
Defendant waived this challenge for failing to object during trial. Also, the transcript showed that the judge asked the witness who testified during the noise to repeat an answer or speak louder. As such, there was no error.
Jury instructions. The defendant claimed there were several errors in the judge's final instructions to the jury, which effectively shifted the burden of proof to the defense. The motion judge reviewed the record and considered the judge’s charge as a whole. The judge found the jury was clearly instructed that it was the Commonwealth's burden to prove the defendant was guilty beyond a reasonable doubt. Errors in the judge’s instruction were harmless beyond a reasonable doubt. In addition, the defendant’s own testimony, and that of witnesses, supported the finding that the defendant planned and executed both the robbery and shooting.
The court looked to the evidence the jury considered in light of the instructions they received and then "weigh the probative force of that evidence as against the probative force of the presumption standing alone." Commonwealth v. Medina, supra at 803, quoting Yates v. Evatt, supra at 404. Although the defendant presented evidence of his intoxication and insanity, his testimony, together with other eyewitness testimony, combined to make a powerful case of felony-murder.
Sandstrom error. The first challenged instruction included a mandatory presumption that was later forbidden by the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 515 (1979) (Sandstrom). The defendant was convicted fifteen years before Sandstrom, and, after subsequent rulings, there was disagreement among the circuits as to whether Sandstrom applied retroactively. The Supreme Judicial Court concluded that the instruction was harmless beyond a reasonable doubt, and declined to evaluate Sandstrom. Evidence in this case showed that the defendant, while armed, planned and participated in the armed robbery. Even if Sandstrom were to apply, any error was harmless beyond a reasonable doubt.
"Find" language. The final challenged language was not erroneous. The defendant challenged the judge's use of the word "find" in regards to intoxication. He argued that the language suggested the defendant had the burden of proof. This language was not in error when read in context.
The court noted that "finding" language is disfavored. It is most offensive in connection with "complete, malice-negating defenses." Commonwealth v. Waite, 422 Mass. 792, 805 (1996). The defense of intoxication is not a malice-negating defense and there is no burden to be shifted. See Commonwealth v. Waite, supra at 805-806. The complete charge in this case explained reasonable doubt and reiterated the Commonwealth's burden.
Defendant's waiver of right not to testify. Finally, the defendant testified at the motion hearing that he was coerced into testifying when his trial counsel told him that he would face the death penalty if he did not. The motion judge found this testimony not to be credible and contrary to the trial record.
According to the trial record, Sousa called the defendant as a witness and the defendant's trial counsel objected. The judge explained to the defendant that his attorney had objected but could not claim privilege for him. The defendant could assert privilege and not testify. If he testified, he would be waiving that privilege. The defendant said he understood and wanted to testify. On appeal, the defendant presented no other evidence he was coerced by trial counsel.
The court found no reason to disturb the motion judge's findings.
So ordered.
Prepared by DFK
