COMMONWEALTH vs. PETER J. LIMONE.

LYNCH, J. The defendant, Peter J. Limone, was convicted in July, 1968, of being an accessory before the fact to murder, and of participating in two separate conspiracies to murder. We affirmed the convictions of Limone and his codefendants in Commonwealth v. French, 357 Mass. 356 (1970), judgments vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972). Several other appellate and postconviction remedy attempts litigated

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between 1970 and 1976 also failed to overturn the defendant's convictions. [Note 1] The defendant filed a second motion for a new trial on January 2, 1990. After hearing, a judge of the Superior Court denied the motion. A single justice of this court allowed the defendant's application for leave to appeal to the full court only in so far as the motion for a new trial challenged the trial judge's charge to the jury on reasonable doubt. Leaster v. Commonwealth, 385 Mass. 547, 549 (1982). We affirm the order denying the defendant's motion for a new trial.

The facts of this case are set forth in Commonwealth v. French, supra, and Commonwealth v. Cassesso, 360 Mass. 570 (1971), judgments vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972). In his appeal, the defendant claims that the trial judge's charge on reasonable doubt was improper because it included specific examples of personal decisions in the lives of the jurors. The defendant relies on a line of cases beginning with Commonwealth v. Ferreira, 373 Mass. 116, 128-130 (1977), in which we held that, where the judge drew an analogy between proof beyond a reasonable doubt and the making of important decisions in the jurors' personal lives, the use of specific examples of personal decisions trivialized the jurors' duty and the Commonwealth's burden of proof. Although the defendant did not raise this issue at trial, he is not precluded from doing so at this time, because the constitutional theory on which he relies was not sufficiently developed at the time of his trial and appeal. [Note 2]

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See Commonwealth v. Tameleo, 384 Mass. 368, 369 n.2 (1981); DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980). Furthermore, the theory has been applied retroactively. Commonwealth v. Garcia, 379 Mass. 422, 438-442 (1980), citing In re Winship, 397 U.S. 358 (1970), made retroactive by Ivan V. v. New York, 407 U.S. 203 (1972).

The relevant portion of the charge appears in the margin. [Note 3] In Commonwealth v. Tameleo, 384 Mass. 368 (1981), we

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scrutinized this very charge in the course of reviewing the appeal from a denial of a motion for new trial of one of Limone's codefendants. There, we held that the charge, read in its entirety, did not so trivialize the concept of proof beyond a reasonable doubt as to require reversal of the convictions. Id. at 371. We noted that "[t]he charge emphasized the `great responsibility' of the jurors to ascertain the truth from the evidence presented, and generally impressed on the jurors the caution and care they must exercise before returning any verdict against any defendant." Id.

We recognize that there is a certain amount of tension between Tameleo and our later decision in Commonwealth v. Rembiszewski, 391 Mass. 123 (1984). In Rembiszewski, we reversed a conviction of murder in the first degree after finding that the charge on reasonable doubt, which used specific examples of personal decisions in the jurors' lives, was not distinguishable in any significant way from the erroneous charges in Ferreira and Garcia, and was constitutionally inadequate. Id. We reiterated, however, that "we have never held nor do we now hold, that the use of specific examples necessarily imports error, constitutional or otherwise." Id. at 128-129, quoting Commonwealth v. Smith, 381 Mass. 141, 145 (1980). Instead, we repeated our consistent position that "to determine whether a definition of reasonable doubt accurately conveys the meaning of the term, it is necessary to consider the charge as a whole." Id. at 130, quoting Smith, supra. The charge here is more like those upheld in Commonwealth v. Grace, 381 Mass. 753 (1980); Commonwealth v. Smith, supra; and Commonwealth v. Hughes, 380 Mass. 596 (1980), than those found to be defective in Ferreira and Garcia.

In Ferreira, supra at 128-129, the judge charged the jury that,

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"[y]ou must be as sure as you would have been any time in your own lives that you had to make important decisions affecting your own economic or social lives. You know, . . . you couldn't be absolutely, mathematically sure that you were doing the right thing -- you weigh the pros and cons; and unless you were reasonably sure beyond a reasonable doubt . . . ."

He then gave specific examples of these decisions. Id. Similarly, the erroneous charges in Garcia, supra at 439 n.9, and Rembiszewski, supra at 128 n.1, also compared the degree of certainty the jury members should have when rendering a verdict to the degree they would want when deciding to make specific changes in their personal lives, after weighing the pros and cons of making such a change. [Note 4] In criticizing this type of charge, we stated that "[w]e do not think that people customarily make private decisions according to this [beyond a reasonable doubt] standard nor may it even be possible to do so. Indeed, we suspect that were this standard mandatory in private affairs the result would be massive inertia." Ferreira, supra at 130. See Rembiszewski, supra at 131 ("Human experience teaches that most, if not all, of the decisions to which the judge referred as illustrating the meaning of proof beyond a reasonable doubt [what work to go into, whether to marry, buy a house, change jobs, have surgery] are made on the basis of perceptions as to probabilities").

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The charge in this case, unlike the charges criticized above, did not compare the jurors' duty in rendering a verdict to weighing the wisdom of taking a future course of action in their personal lives. Rather, the jurors' duty was compared to making a decision as to the truth of a factual proposition, based on the credibility of the person relating it. The judge said, "Now, you received some information from a certain person. If he has related the truth, you should make the change. But if he is not telling the truth, you will make a terrible mistake. Now, shall you believe him or not . . . You were not present when . . . this incident took place about which he talked." The specific examples of personal decisions merely introduced this illustration, and were used to explain the seriousness of the factual decision rather than to illustrate the required degree of certainty. [Note 5] Cf. Commonwealth v. Hughes, 380 Mass. 596, 601 (1980) (charge not erroneous because the judge "used the heart surgery illustration more to explain the seriousness of the decision than to illustrate the required degree of certainty").

Furthermore, in other portions of the charge the judge instructed that "each of you should vote as your conscience dictates, and your conscience alone," that "[a] false verdict against a defendant is as deep an injury to the community as a false verdict in favor of the defendant. A verdict must be a true verdict," and that a unanimous verdict is required "[t]o assure deliberation. To assure a dissection, a consideration of every bit of evidence . . . and in that way we get as near to the truth as possible." These statements contributed to impress

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on the jurors the seriousness of their duty. Accordingly, we reaffirm our conclusion in Tameleo, supra at 371, that,

"[t]he charge emphasized the `great responsibility' of the jurors to ascertain the truth from the evidence presented, and generally impressed on the jurors the caution and care they must exercise before returning any verdict against any defendant. We conclude that, read in its entirety, `the charge did not so trivialize the concept of proof beyond a reasonable doubt as to require reversal of the conviction.' Commonwealth v. Smith, 381 Mass. 141, 146 (1980)." [Note 6]

Finally, the judge's comment that beyond a reasonable doubt means "beyond a doubt with a reason behind that doubt" would not have shifted the burden of proof by requiring the jury to search for a "reason" to acquit, as the defendant argues. Just prior to this comment, the judge had instructed the jury as to the presumption of innocence and had stated that "the burden is on the Commonwealth to convince you beyond a reasonable doubt that the defendant is guilty. The burden of proof is not on the defendant to prove that he is innocent, and the burden of proof is to convince you beyond a reasonable doubt." In light of this instruction and of the charge as a whole, we do not believe that the challenged language could have shifted the burden of proof in the minds of the jurors. See Commonwealth v. Bjorkman, 364 Mass. 297, 308 (1973). See also Commonwealth v. Robinson, 382 Mass. 189, 198 (1981).

For the foregoing reasons, the order denying the defendant's motion for a new trial is affirmed.

So ordered.