Commonwealth v. Hallet

694 N.E.2d 845, 427 Mass. 552, 1998 Mass. LEXIS 310
CourtMassachusetts Supreme Judicial Court
DecidedJune 2, 1998
StatusPublished
Cited by49 cases

This text of 694 N.E.2d 845 (Commonwealth v. Hallet) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Hallet, 694 N.E.2d 845, 427 Mass. 552, 1998 Mass. LEXIS 310 (Mass. 1998).

Opinion

Wilkins, C.J.

We granted further appellate review in this case to reaffirm the standard of review that an appellate court should apply when deciding an appeal from the denial of a motion for a new trial filed and acted on prior to a defendant’s appeal from his conviction.

1. In affirming the defendant’s conviction of unarmed rob[553]*553bery, the Appeals Court, in an unpublished memorandum and order (43 Mass. App. Ct. 1116 [1997]), acknowledged that the motion judge who acted on the defendant’s new trial motion had addressed the adequacy of her jury instructions concerning identification, although at trial the defendant had not preserved the issue for appellate review in the normal course. The Appeals Court concluded that the proper appellate standard in the circumstances was whether any error created a substantial risk of a miscarriage of justice. That court relied on Commonwealth v. Amirault, 424 Mass. 618, 640 (1997), and Commonwealth v. Curtis, 417 Mass. 619, 623-626 (1994), each of which, however, involved a challenge to a postappeal denial of a motion for a new trial. The difference is crucial. We intend a clear distinction between an appeal from the denial of a motion for a new trial that was acted on after the defendant’s appeal from his conviction has failed and an appeal from the denial of a motion for a new trial that is presented in conjunction with a direct appeal from a conviction.

In Commonwealth v. Curtis, supra at 621, 623-626, we discussed the standard of review that applies in a postappeal, collateral attack on a defendant’s conviction where a motion judge had fully considered on their merits and rejected arguments that could have been, but were not, argued on the defendant’s direct appeal. We stated that “[o]ur attention here is on the denial of a new trial motion filed after a conviction has received appellate review, and not with new trial motions considered before a conviction has been reviewed.” Id. at 623. We concluded that, in such a postappeal review, we would not apply our “principle of long standing” {id. at 625, and cases cited), under which an appellate court considers a new trial issue as if it had been properly preserved for appellate review, if, but only if, the motion judge had considered the issue on its substantive merits in denying the motion for a new trial. Id. at 626. See Commonwealth v. Skinner, 408 Mass. 88, 92 (1990), and cases cited. We decided, instead, that the proper test was whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Curtis, supra at 623. We said nothing about abandoning our long-standing principle of issue resurrection if the denial of a new trial motion were presented on appeal in conjunction with the appeal from the conviction itself. The Appeals Court concluded, however, that what we said in the Curtis case and in Commonwealth v. Amirault, supra, also a [554]*554postdirect appeal challenge, indicated that we would not apply, and hence would abandon, our principle of issue resurrection when an appeal of the denial of a motion for a new trial arises in conjunction with a direct appeal from the defendant’s conviction.

If a motion judge has denied a motion for a new trial without considering the substantive merits of an issue that could have been, but was not, preserved for full appellate review, the standard of appellate review of that issue (whether raised by an appeal from the conviction or by an appeal from the denial of a postappeal motion) is whether there was an error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Martinez, 420 Mass. 622, 624 (1995); Commonwealth v. Curtis, supra at 624 n.4. If an appeal from the denial of a new trial motion is presented in conjunction with- a direct appeal, but the motion judge did not see fit to consider the merits of a claim of trial error raised for the first time in the new trial motion, a challenge to that denial adds nothing to the defendant’s appellate position because the substantial risk of a miscarriage of justice argument is available, in any event, on direct appeal from the conviction.

Here, the motion judge gave full consideration to the propriety of her identification instruction which was raised by the motion for a new trial. In this direct appeal we decline to abandon our rule, as we did for postappeal new trial motions, that, when a judge frilly considers an issue in deciding a motion for a new trial, the issue is open for our consideration as if it had been fully preserved at trial for appellate review. When the issue is presented in conjunction with a defendant’s first appeal, the strong public interest in finality that we identified in Commonwealth v. Amirault, supra at 639, is absent. Appeals diligently pursued are appropriate to the process of litigation, and, if a timely preappeal motion for a new trial is made and denied, issues that the motion judge resurrected may fairly be considered as part of the appeal from the conviction. This is particularly so because the motion judge in such case will have been the trial judge, unless the trial judge is unavailable. Because the trial judge has undoubted discretion to order a new trial for a wide variety of reasons, we see no ground for denying the judge discretion to resurrect an issue on a posttrial but preappeal hearing.

The motion judge, of course, has wide discretion whether to [555]*555consider an issue that could have been raised at trial but was not. Particularly if he or she was the trial judge, the motion judge may decide in fairness that the issue should be open for full appellate review. The judge may conclude that, if the asserted error was made, the defendant would be entitled to a new trial, but may believe that no error occurred. In such an instance, the judge may wish to consider the substantive merits, explain his or her position, and knowingly open the issue for full appellate review.

In opposing the allowance of a new trial motion, the Commonwealth should remind the judge of the consequences of considering an issue on its merits that the defendant reasonably could have raised at or before trial but did not. The judge should recognize that, unless the asserted error concerns a manifest injustice or created a substantial risk of a miscarriage of justice, she has wide discretion whether to consider any new trial issue fully on its merits. A motion judge’s determination only that an asserted error created no such injustice would not resurrect an issue because the issue would not have been considered fully on its substantive merits.

We conclude, according to long-standing practice, that any issue argued in the appeal from the denial of the defendant’s motion for a new trial that the motion judge fully addressed on its merits must be considered as if properly preserved for direct appeal.

2. The central issue at trial was whether the robbery victim and his wife correctly identified the defendant as one of two men who robbed the victim on Dartmouth Street in the South End of Boston on the night of November 23, 1991. The jury could have found the following. Two men, one white and one black, accosted the couple, pushed the victim against a brick wall, and demanded his money. When the victim denied that he had any money, each of the men replied that “we’re going to blow you away.” The victim surrendered his wallet. The robbers ran down Dartmouth Street and turned left on Appleton Street.

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Bluebook (online)
694 N.E.2d 845, 427 Mass. 552, 1998 Mass. LEXIS 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hallet-mass-1998.