COMMONWEALTH vs. HARRY AMBERS.

HENNESSEY, C.J. In 1973, the defendant was convicted of murder in the first degree and armed robbery following a jury trial in Superior Court. In 1976, we affirmed his convictions, after reviewing the whole case on both the law and the evidence, pursuant to our duty under G. L. c. 278, Section 33E (1984 ed.). For a summary of the evidence presented at trial, and the issues raised on appeal, see Commonwealth v. Ambers, 370 Mass. 835, 836-837 (1976).

In 1985, the defendant filed a motion for postconviction relief pursuant to Mass. R. Crim. P. 30 (a), 378 Mass. 900 (1979). The defendant raised the claims that the trial judge's instruction to the jury relieved the Commonwealth of its burden of proof beyond a reasonable doubt, and that the consecutive sentence for armed robbery was duplicative of the sentence for murder. A Superior Court judge denied without a hearing the defendant's motion for postconviction relief.

The defendant then petitioned a single justice of this court, pursuant to G. L. c. 278, Section 33E, for leave to appeal the denial of his postconviction motion. On October 4, 1985, the single justice issued an order and reservation and report, bringing two of the defendant's claims before the full court. First, the single justice reserved and reported the question whether the defendant's claim that the judge used "trivializing language" in his jury instruction was a "new" claim within the meaning of G. L. c. 278, Section 33E. The single justice made it clear that in his view the full court should reach the merits of the claim only if it concluded that it was "new." The single justice also ruled that certain other challenges by the defendant to the jury instruction were not "new," and therefore denied leave to appeal those issues, except as they might bear on the impact of the jury charge in its entirety. Second, the single justice allowed an appeal to the full court on the defendant's challenge to his consecutive sentence for the armed robbery conviction. Finally, the defendant raised an additional claim that the application of statutory and common law principles relating to felony-murder illegally enhanced the crime of which he was convicted from murder in the second degree to murder in the first degree, which in turn resulted in an illegal enhancement of the sentence

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imposed. The single justice ruled that this claim was not new, and therefore denied leave to appeal this issue.

1. First, we address the question reported by the single justice, whether the defendant's claim that the trial judge used "trivializing" language in his jury instruction [Note 1] is a "new" question for which an appeal should be allowed. Under G. L. c. 278, Section 33E, no appeal shall lie from the denial of a postconviction motion "unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court." The defendant argues that a "new" question for the purpose of this provision is one that previously had not been argued or addressed. The defendant did not object to the allegedly "trivializing" language of the instruction, either at the time of his trial, or on direct appeal. We did not address this issue in our plenary review of his conviction. See Commonwealth v. Ambers, 370 Mass. 835, 838 (1976). The defendant argues that, because he is raising the issue for the first time in his postconviction motion, it is a "new" question within the meaning of G. L. c. 278, Section 33E. We disagree.

An issue is not "new" within the meaning of G. L. c. 278, Section 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. "The statute requires that the defendant present all his claims of error at the earliest possible time, and failure to do so precludes relief on all grounds generally known and available at the time of trial or appeal." Commonwealth v. Pisa, 384 Mass. 362, 365-366 (1981), and cases cited. [Note 2] See Commonwealth v. Gricus, 317 Mass. 403,

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405 (1944) ("Even in a capital case, a party may not bring up by exceptions to the denial of a motion for a new trial a question of law that he raised or could have raised at trial"). A claim will not be considered "new" within the meaning of G. L. c. 278, Section 33E, where the grounds advanced for it were available to the defendant at the time of his trial or direct appeal. Pisa, supra at 367. See Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). Cf. DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980) (unavailability of constitutional claim at time of trial excuses failure to raise claim in ordinary course). We thus must examine our case law to determine if the theory on which the defendant's argument is based was sufficiently developed at the time of his trial or appeal so that his claim reasonably could have been raised during those proceedings.

We first reversed a conviction on the ground that the trial judge's instruction to the jury "trivialized" the Commonwealth's burden of proof in Commonwealth v. Ferreira, 373 Mass. 116 (1977). We held that the judge's analogy to important social and economic decisions in the everyday lives of the jurors tended to understate and trivialize the Commonwealth's burden of proof beyond a reasonable doubt. Id. at 128-129. In Ferreira, we traced our criticism of this method of jury instruction to our decision in Commonwealth v. Bumpus, 362 Mass. 672 (1972), judgment vacated and remanded on other grounds, 411 U.S. 945 (1973), aff'd on rehearing, 365 Mass. 66 (1974), reviewed on petition for writ of habeas corpus sub nom. Bumpus v. Gunter, 452 F. Supp. 1060 (D. Mass. 1978), denial of writ aff'd, 635 F.2d 907 (1st Cir. 1980), cert. denied, 450 U.S. 1003 (1981). In Bumpus, we noted that "[t]he inherent difficulty in using such examples is that, while they may assist in explaining the seriousness of the decision before the jury, they may not be illustrative of the degree of certainty required." Id. at 682. Subsequent decisions of this court reversing criminal

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convictions on the basis of such "trivializing" examples [Note 3] have also traced the genesis of this doctrine to our decision in Bumpus. See Commonwealth v. Kelleher, 395 Mass. 821, 825 (1985) (the defendant's challenge to the jury charge "is founded on principles first enunciated ... in Commonwealth v. Bumpus"); Commonwealth v. Rembiszewski, supra at 128 ("Our first criticism of the practice was expressed in Bumpus"). The defendant in this case was tried in December, 1973, after our decision in Bumpus. His direct appeal was argued before this court on April 6, 1976, after our decision in Commonwealth v. Ferguson, 365 Mass. 1, 12 (1974) (where we noted that judge's analogy to important decisions in the jurors' personal lives was "not entirely apt," and was "best discontinued"). Having had the benefit of both of these decisions, the defendant could reasonably have been expected to object to the judge's instruction either at trial or on direct appeal. [Note 4] The "trivializing

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instruction" argument was available to him at those junctures in the case, and therefore cannot now be considered "new" within the meaning of G. L. c. 278, Section 33E. We answer the question reported by the single justice in the negative, and therefore do not reach the merits of the defendant's challenge to the jury instructions.

2. The single justice allowed the defendant leave to appeal his claim regarding the duplicative nature of his sentence for armed robbery. The defendant was sentenced to thirty-five to forty years' incarceration for his armed robbery conviction, to be served from and after his life sentence for murder. The defendant argues that this consecutive sentence should be vacated, because proof of the armed robbery did not require proof of any facts apart from those necessary to convict him of first degree (felony) murder. Commonwealth v. Stewart, 375 Mass. 380, 392-393 (1978). The Commonwealth correctly concedes that this result is mandated by our decision in Commonwealth v. Wilson, 381 Mass. 90, 125 (1980), and, accordingly, we shall order, infra, that the sentences for murder and armed robbery are to run concurrently.

3. The defendant attempts to argue before us that his sentence for murder in the first degree was an illegal enhancement of his conviction for armed robbery. The single justice expressly ruled that this claim was not "new," [Note 5] and therefore denied the defendant leave to appeal the issue to the full court. [Note 6] A single

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justice's denial of a petition for leave to appeal under G. L. c. 278, Section 33E, is final and unreviewable. Leaster v. Commonwealth, 385 Mass. 547 (1982). See Dickerson v. Attorney Gen., 396 Mass. 740, 742 (1986).

4. The defendant also argues that he has been deprived of his right to the effective assistance of counsel, due to his trial counsel's failure to object to the judge's allegedly "trivializing" jury instruction. We do not address this claim, as the defendant did not obtain leave to appeal from the single justice as required by G. L. c. 278, Section 33E. Leaster, supra.

5. The case is remanded to the single justice with instructions that he remand it to the Superior Court, where the sentence on the conviction for armed robbery is to be vacated and a new sentence is to be imposed, to run concurrently with the sentence imposed on the conviction of murder in the first degree. Because we have answered "No" to the question reported by the single justice, the appeal is otherwise dismissed.

So ordered.