Commonwealth v. Johnson

Summary

The Massachusetts Supreme Judicial Court considered whether an alleged error in jury instructions concerning provocation constituted a "new and substantial" question under G. L. c. 278, § 33E. The court held that the issue had already been considered on direct appeal, was not new, and in any event did not create a substantial risk of a miscarriage of justice; it remanded for entry of an order denying leave to appeal.

Holdings

1. The defendant's claim was not new because the same issue had been adequately developed and considered on direct appeal, and Acevedo did not create a new legal rule.
2. Section 33E's new-and-substantial standard does not permit a defendant to relitigate an issue decided on direct appeal merely by asserting that the earlier decision was incorrect.
3. Even assuming the issue were new and substantial, the alleged instructional error did not create a substantial risk of a miscarriage of justice.

Questions Presented

1. Whether the defendant's challenge to the provocation instruction presented a new and substantial question under G. L. c. 278, § 33E, when the same issue had been raised and addressed on direct appeal before Commonwealth v. Acevedo.
2. Whether the alleged instructional error created a substantial risk of a miscarriage of justice.

Disposition

remanded