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.
Topics
Practice areas
Questions Presented
- 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.
- Whether the alleged instructional error created a substantial risk of a miscarriage of justice.
Holdings
- 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.
- 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.
- Even assuming the issue were new and substantial, the alleged instructional error did not create a substantial risk of a miscarriage of justice.
Key quotations
“An issue is not ‘new’ within the meaning of G. L. c. 278, § 33E, where either it has already been addressed, or where it could have been addressed had the defendant properly raised it at trial or on direct review.” (at 3)
“The statute’s ‘new and substantial’ test does not contemplate revisiting the decision in a capital appeal merely to reconsider issues that were decided in the direct appeal, which the defendant claims were incorrectly decided . . . .” (at 3)
Factual background
The defendant was convicted of murder in the first degree under theories of extreme atrocity or cruelty and deliberate premeditation. The only evidence of provocation was the defendant's own testimony, and his theory of provocation was fright. The defendant later challenged the jury instructions on provocation, arguing that an intervening decision, Commonwealth v. Acevedo, made the issue new and substantial.
Procedural history
Johnson was convicted of murder in the first degree. On direct appeal, the Supreme Judicial Court considered the same alleged error concerning jury instructions on provocation and the burden of proof. After the denial of a second motion for a new trial, Johnson filed a section 33E gatekeeper application; the full court held that the claim was not new and substantial and remanded for an order denying leave to appeal.
Remand instructions
The case was remanded to the county court for entry of an order denying the defendant's application for leave to appeal.