Com. v. Gagnon

Page 1045

643 N.E.2d 1045

37 Mass.App.Ct. 626

COMMONWEALTH v. Jean Marie GAGNON.

No. 93-P-93.

Appeals Court of Massachusetts Hampden.

Argued Feb. 3, 1994.

Decided Nov. 21, 1994.

Further Appellate Review Denied Jan. 4, 1995.

Further Appellate Review Granted Jan. 24, 1995.

Wendy Sibbison, Greenfield, for defendant.

Judith Ellen Pietras, Asst. Dist. Atty., for Com.

Before WARNER, C.J., and BROWN and DREBEN, JJ.

WARNER, Chief Justice.

On June 15, 1978, after a jury trial in the Superior Court, Jean Marie Gagnon and two codefendants were convicted on indictments charging armed robbery while masked (G.L. c. 265, § 17), armed assault with intent to murder (G.L. c. 265, § 18, as in effect prior to St.1981, c. 678, § 3), attempted murder (G.L. c. 274, § 6), assault and battery with a dangerous weapon (G.L. c. 265, § 15A, as in effect prior to St.1981, c. 678, § 1), and assault and battery on a police officer (G.L. c. 265, § 13D). ¹

All three defendants appealed. This court reversed their convictions (Commonwealth v. Gagnon, 16 Mass.App.Ct. 110, 449 N.E.2d 686 [1983] ), but on further appellate review the Supreme Judicial Court found no reversible error and affirmed the convictions. Commonwealth v. Bourgeois, 391 Mass. 869, 465 N.E.2d 1180 (1984).

On December 9, 1992, Gagnon, acting pro se, filed two motions--one seeking, alternatively, a release from unlawful confinement or a new trial, pursuant to Mass.R.Crim.P. 30(a) and 30(b), 378 Mass. 900 (1979), respectively, and the other seeking appointment of counsel to assist Gagnon in pursuing the rule 30 motion. Both motions were denied without a hearing (the trial judge having retired, the motions were acted upon by a second Superior Court judge). The defendant appeals from the denial of his motions.

We deal, first, with five issues raised by the defendant's motion below, second, with his contention that he should be permitted to raise new issues on appeal, and, third, with the propriety of resentencing on the convictions not successfully challenged.

1. Joint venture instructions. Gagnon claims that the jury instructions on joint venture, by repeated use of the terms "determine" and "decide" in reference to the jury's consideration of that issue in reaching their verdict, unconstitutionally shifted to the defendant the burden of persuading the jury that he was not a joint venturer. See Connolly v. Commonwealth, 377 Mass. 527, 535, 387 N.E.2d 519 (1979). Assuming, without deciding, that Gagnon did not waive the point by failing to object at trial and by not raising the burden-shifting argument in his direct appeals, Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973), the instructions in this case could not reasonably be read as placing the burden of proof upon the defendant. The charge as a whole sufficiently apprised the jury of the Commonwealth's burden of proof on joint venture so as not to create a substantial risk of a miscarriage of justice. The judge repeatedly instructed the jury that the Commonwealth bore the burden of proving beyond a reasonable doubt every essential element of the offenses, and every fact necessary to convict, which included the facts necessary to establish a joint venture. Compare Commonwealth v. Shelley, 411 Mass. 692, 694-698, 584 N.E.2d 629 (1992) ("finding" language cured by forceful instructions on the burden of proof).

2. Attempted murder instructions. The offenses of assault with intent to murder and attempted murder both require that the Commonwealth prove beyond a reasonable doubt the defendant's specific intent to kill, in addition to establishing malice aforethought. Commonwealth v. Henson, 394 Mass. 584, 590-592, 476 N.E.2d 947 (1985). Commonwealth v. Maloney, 399 Mass. 785, 788, 506 N.E.2d 1147 (1987). See also Commonwealth v. Ennis, 398 Mass. 170, 173-175, 497 N.E.2d 950 (1986) (Henson applies retroactively). Since the judge instructed on "third prong" malice--that is, the intentional use of force that creates a plain and strong likelihood of death--the jury could have found malice without finding an intent to kill. Gagnon's trial counsel did not request a proper instruction, did not object to the instruction given, and this issue was not raised on direct review. Because the Henson decision was announced after appellate review of Gagnon's conviction was complete, he argues that his failure to press the issue should be excused. This argument is foreclosed by Ennis, supra; in that case the Supreme Judicial Court reviewed a Henson claim arising from a pre-Henson trial only for a substantial risk of a miscarriage of justice. 398 Mass. at 176, 497 N.E.2d 950. See also Commonwealth v. Cowie, 28 Mass.App.Ct. 742, 744, 556 N.E.2d 103 (1990). ²

Because the issue of specific intent to kill was not actively contested at trial, the erroneous instruction created no substantial risk of a miscarriage of justice. Commonwealth v. Gabbidon, 398 Mass. 1, 5, 494 N.E.2d 1317 (1986). No one disputed that the bank robbers carried, among them, at least two handguns. Nor was it disputed that the robbers brought those weapons intending that, if necessary, they would be used to shoot persons resisting or pursuing the robbers. Instead, each of the defendants contested the issue of identity, arguing that he had not been one of the robbers. Compare Gabbidon, supra; Commonwealth v. Shea, 398 Mass. 264, 269-270, 496 N.E.2d 631 (1986). Given the undisputed evidence that one of the robbers aimed a handgun at Officer Petrick, at short range, and fired upon him, it is reasonable to expect that a properly instructed jury would have found a specific intent to kill. Compare Shea, supra at 270, 496 N.E.2d 631 (seriousness of wound "inconsistent with any intent other than an intent to kill"). Contrast Commonwealth v. Fernette, 398 Mass. 658, 672, 500 N.E.2d 1290 (1986).

3. Reasonable doubt instructions. The trial judge's instructions defined proof beyond a reasonable doubt as "proof to a moral certainty, rather than to an absolute or mathematical certainty"; something more than "the mere probability of guilt" but not "beyond all possible doubt." The instructions went on to quote from the charge reviewed in Commonwealth v. Madeiros, 255 Mass. 304, 307, 151 N.E. 297 (1926), to the effect that "[i]t is rarely, if ever, possible to find a case so clear that there cannot be a possibility of innocence. If an unreasonable doubt or a mere possibility of innocence were sufficient to prevent a conviction, practically every criminal would be set free to prey upon the community, and such a rule would be wholly impractical and break down the forces of law and order and make the lawless supreme." Gagnon argues that these instructions impermissibly reduced the standard of proof required of the Commonwealth, violating his right under the Fourteenth Amendment to the United States Constitution to due process of law. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). He did not object to this portion of the charge at trial or on appellate review of his conviction. Even assuming, however, that the issues now raised are properly before us, we cannot conclude that the jury were misled as to the proper standard of proof.

As to the "moral certainty" language, Gagnon claims that it requires reversal under the decision in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Subsequent decisions of the Supreme Court (Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 [1994] ) and of the Supreme Judicial Court make it clear, however, that "the use of the words 'moral certainty,' as part of or in conjunction with the approved charge from Commonwealth v. Webster, 5 Cush. 295, 320 (1850)," remains sound practice after Cage. Commonwealth v. Beldotti, 409 Mass. 553, 562, 567 N.E.2d 1219 (1991). Commonwealth v. Gagliardi, 418 Mass. 562, 571-572, 638 N.E.2d 20 (1994).

The charge given at Gagnon's trial adequately conveyed the appropriate standard of proof, describing it as proof that creates "an abiding conviction to a moral certainty that the defendant is guilty," and "a clear and settled conviction of guilt." See Victor v. Nebraska, 511 U.S. at ----, 114 S.Ct. at 1247 (instruction "cast in terms of an abiding conviction as to guilt" would state proper standard); Commonwealth v. Gagliardi, 418 Mass. at 571-572, 638 N.E.2d 20. Furthermore, in the context of the charge as a whole, the term "moral certainty" could not reasonably have been understood to permit a conviction based on anything other than the evidence produced at trial. Indeed, the judge instructed the jurors that, "[i]n carrying out your duty, your only interest is to decide these indictments from the facts as you determine them to have been proven beyond a reasonable doubt by the evidence produced during this trial " (emphasis added). And, immediately prior to the challenged reasonable doubt instruction, he admonished the jurors to "convict only in case the evidence convinces [you] beyond a reasonable doubt that a defendant is guilty." Compare Victor, supra, 511 U.S. at ----, ----, 114 S.Ct. at 1248, 1251. The use of the phrase "moral certainty" did not render the instruction unconstitutional.

As to the language taken from Madeiros, 255 Mass. at 307, 151 N.E. 297, it has been clear at least since Commonwealth v. Williams, 378 Mass. 217, 233-235, 391 N.E.2d 1202 (1979), that the use of this charge is disfavored. In Williams, however, the infirmity created by the one-sided warning about the consequences of applying too stringent a standard of proof was cured by adjoining the approved definition of reasonable doubt from Webster. Id. at 235, 391 N.E.2d 1202. See also Commonwealth v. Carballo, 381 Mass. 227, 229, 407 N.E.2d 1295 (1980); Commonwealth v. Spann, 383 Mass. 142, 150-151, 418 N.E.2d 328 (1981); Commonwealth v. Tavares, 385 Mass. 140, 147-148, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982)....