COMMONWEALTH VS. MALCOLM F. HICKS

ARMSTRONG,C.J. The defendant appeals from the denial of his second motion for a new trial, filed nearly thirty years after his conviction in 1968 of second degree murder. In a brutal attack, the victim was kicked in the stomach, probably multiple times, tearing loose his bowel attachment, leading to bleeding in the abdominal cavity and death. See Commonwealth v. Hicks, 356 Mass. 442, 444 (1969). The defendant was represented by new counsel in his direct appeal and again in his first motion for a

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new trial, filed in 1973. The present new trial motion was filed pro se (the defendant was represented by counsel for purposes of oral argument in this court) and raises new issues. A Superior Court judge, not the trial judge, denied the motion without a hearing on the grounds that issues not raised in the direct appeal had been waived.

That was a proper disposition of the claims that could have been raised earlier: in particular, that the Commonwealth failed to disclose the loss of exculpatory evidence prior to trial and that trial counsel rendered ineffective assistance concerning that evidence; and that the trial judge instructed erroneously on reasonable doubt and joint venture. The judge was correct in ruling that those issues had been waived by the defendant's failure to raise them at the earliest possible time - in the direct appeal (the first two issues) or in the new trial motion in 1973 (the latter two issues). The defendant had been tried and convicted and had appealed, under the provisions of G. L. c. 278, s.s. 33A-33G, as then in effect. See Commonwealth v. Hicks, 356 Mass. at 443. The principle applicable to cases tried thereunder is that a "defendant [must] present all his claims of error at the earliest possible time," a practice that "aid[s] in the proper allocation of limited legal and judicial resources." Commonwealth v. Pisa, 384 Mass. 362, 365-366 (1981). Subject to an exception for grounds not generally known and available at the time of earlier proceedings including proceedings post appeal, the failure to raise a claim of error at the first opportunity constitutes a waiver of the claim. See id. at 367 & n.6 (claims known but not raised in earlier proceedings not "new" for purposes of s. 33E) [Note 1]. See discussion in Dickerson v. Attorney Gen., 396 Mass. 740, 741-744 (1986). Compare Lykus v. Commonwealth, 432 Mass. 160, 162-163 (2000); Rodwell v. Commonwealth, 432 Mass. 1016, 1017-1018 (2000). With regard to waiver of the argument on the reasonable doubt instruction (see note 2, infra), see Commonwealth v. Burnett, 428 Mass. 469, 472-474 (1998), for a discussion of cases foreshadowing the holding in Commonwealth v. Ferreira, 373 Mass. 116, 128-130 (1977).

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"The rule of waiver 'applies equally to constitutional claims which could have been raised, but were not raised' on direct appeal or in a prior motion for a new trial." Commonwealth v. Watson, 409 Mass. 110, 112 (1991), quoting from Commonwealth v. Deeran, 397 Mass. 136, 139 (1986) [Note 2].

Two of the issues now raised, however, should have been considered by the judge, because the theories on which the defendant's arguments are premised had not been sufficiently developed at the time of his direct appeal or of his first motion for a new trial. See DeJoinville v. Commonwealth, 381 Mass. 246, 251 (1980); Commonwealth v. Adrey, 397 Mass. 751, 753 (1986); Commonwealth v. Bowler, 407 Mass. 304, 307 (1990); Commonwealth v. Amirault, 424 Mass. 618, 639 (1997). The principles on which the arguments are grounded were set forth in Mullaney v. Wilbur, 421 U.S. 684 (1975), and Sandstrom v. Montana, 442 U.S. 510 (1979).

The motion was heard by a judge other than the trial judge, who retired many years ago. We are in as good a position as the motion judge to consider the defendant's arguments. No good purpose would be served by a remand.

1. Manslaughter instruction. The defendant argues that the judge's instruction on manslaughter shifted to the defendant the burden of proving provocation. "[I]n any case tried before our decision in Commonwealth v. Rodriguez, [ 370 Mass. 684, 691-692 (1976)], 'this court will review the constitutional adequacy of the instructions to the jury as to the burden of proof . . . where the evidence adequately raises the issues of self-defense or provocation, even though the defendant addressed no objections or exceptions to that issue.' " Commonwealth v. Fitzgerald, 380 Mass. 840, 842 (1980), quoting from Commonwealth v. Collins, 374 Mass. 596, 599 (1978). The defendant in this case addressed no objections or exceptions to the charge on

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provocation; however, his counsel was not in that respect deficient. There was in the case simply no evidence of relevant mitigating circumstances - that the killing resulted from "a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat." Commonwealth v. Soaris, 275 Mass. 291, 299 (1931), quoted with approval in Commonwealth v. Berry, 431 Mass. 326, 334 (2000), and Commonwealth v. Little, 431 Mass. 782, 786 (2000). See Commonwealth v. Walden, 380 Mass. 724, 727-728 (1980). There was only evidence of an argument between the defendant and his companion and the victim; but "a heated oral argument I without more, does not constitute adequate provocation." Commonwealth v. Masello, 428 Mass. 446, 449 (1998). There was nothing in the evidence, in other words, that entitled the defendant to a manslaughter instruction, and the jury found the defendant guilty of murder. Any error in giving a manslaughter instruction was harmless. See Commonwealth v. Caines, 41 Mass. App. Ct. 812, 817-818 (1996). The defendant has no cause to complain [Note 3].

2. Mandatory presumption of malice. The defendant argues that the judge instructed the jury that the defendant (a) had committed assault and battery on the victim and (b) that malice was implied from the assault and battery. If that characterization were correct, the judge's instruction would be reversible error under the Sandstrom principle. See Commonwealth v. Callahan, 380 Mass. 821, 822-826 (1980). However, the characterization is not correct. The judge's statement that there was evidence of an assault and battery did not tell the jury that they had to find an assault and battery, particularly where it was followed

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immediately by an instruction defining assault and battery and one that told the jury that the burden of proof was on the government to prove the degree of the crime as well as whether the crime itself was committed. Earlier the judge told the jury that he had no opinion regarding the facts, no right to express any such opinion, and that it was the jury's recollection of the evidence that counted, not his own.

As to the alleged mandatory presumption of malice, the judge instructed the jury, in both his original and supplemental charges, that "[m]alice can be implied from any deliberate or cruel act against another, however sudden" (emphasis supplied). This instruction did not mandate a presumption of malice; it permitted the jury to draw the inference. Compare Commonwealth v. Pierce, 419 Mass. 28, 37-38 (1994) (instruction that malice "may be implied . . . in every deliberate or cruel act to another" [emphasis original] did not "reliev[e] the Commonwealth of its burden of proof on the element of malice," particularly in view of judge's correct instructions on Commonwealth's burden of proving every element of the crime).

Order denying motion for new trial affirmed.