424 Mass. 1019

April 8, 1997

The case was submitted on the papers filed, accompanied by a memorandum of law.

Enfrid Brown, Jr., pro se.

The petitioner, who had sought relief from a decision of a Superior Court judge denying his request for "free transcripts," now appeals to the full court under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from a single justice's denial of relief under G. L. c. 211, s.s. 3 and 4A.

The petitioner's conviction of murder in the first degree was affirmed by this court. Commonwealth v. Brown, 378 Mass. 165, 166 (1979) (no relief warranted under G. L. c. 278, s. 33E). As a result, his appeal from any motion he filed in the Superior Court following s. 33E review is prohibited "without the leave of a single justice of this court." Commonwealth v. Davis, 410 Mass. 680, 683 (1991). The petitioner, who did not obtain leave of the single justice, now contends that, because he acted pro se, his "document" should have been liberally construed, apparently as both a request for leave to appeal and as an appeal. There is a meaningful distinction between our recognition that a handwritten pro se filing is to be liberally construed, Real v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 399, 400 n.2 (1983), vacated sub nom. Ponte v. Real, 471 U.S. 491 S.C., 396 Mass. 1001 (1985), and our subsequent statement that "[a] pro se litigant is bound by the same rules of procedure as litigants with counsel" (emphasis added). Commonwealth v. Barnes, 399 Mass. 385, 392 (1987), quoting International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983). The single justice did not commit an abuse of discretion or a clear error of law. Miranda v. Commonwealth, 392 Mass. 420, 421-422 (1984).

Judgment affirmed.


424 Mass. 1019

May 12, 1997

Tracy A. Peterson & David J. Byer for the defendant.

Scott H. Kremer, Assistant District Attorney, for the Commonwealth.

Wendy Sibbison, for the Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

In 1980, the defendant, Gene L. Perry, was indicted for, and convicted of, murder in the first degree. Perry appealed to this court pursuant to G. L. c. 278, s. 33E, as amended by St. 1979, c. 346, s. 2, effective July 1, 1979. Exercising the power of plenary review provided by that statute, we reduced the conviction to murder in the second degree. Commonwealth v. Perry, 385 Mass. 639. 648-649 (1982). Between 1982 and 1987, Perry filed three postrescript motions for a new trial, which were denied. See 26 Mass. App. Ct. 1116 (1988). Then, in 1992, he filed a fourth such motion, which a judge in the Superior Court denied, stating, "Nothing in this motion is new or could not have been presented at trial and appeal or in [Perry's] three prior new trial motions -- 'Court refuses to act.'" Perry appealed from that ruling and we granted the Commonwealth's application for

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direct appellate review on the question of the continuing validity of the court's decision in Commonwealth v. Lattimore, 400 Mass. 1001 (1987), that a defendant, whose conviction of murder in the first degree has been reduced to murder in the second degree after plenary review under G. L. c. 278, s. 33E, is not subject to s. 33E's gatekeeper restriction governing further appeals. After further consideration of the "gatekeeper" issue, the court, by a majority of five Justices to two, reaffirms its Lattimore holding. See Commonwealth v. Lanoue, 409 Mass. 1, 8-10 (1990) (O'Connor, J., concurring, with whom Greaney, J., joined). The court remains unpersuaded that "the Legislature intended that, where a defendant has received plenary review under s. 33E, the gatekeeper provisions should be a condition of any further appeal," Lattimore, supra at 1001, where the plenary review resulted in a reduction of the verdict. Therefore, we turn briefly to the merits.

The defendant's latest motion for a new trial is based on his assertion that the trial judge committed constitutional error by failing to instruct the jury that they could consider intoxication on the issue whether he acted with malice aforethought. No such instruction was requested and no objection was made at the time of trial. We have previously held that the failure to instruct on the issue of intoxication does not rise to a constitutional level. See Commonwealth v. Vazquez, 419 Mass. 350, 355 (1995); Commonwealth v. Costello, 392 Mass. 393, 405 (1984). We have repeatedly declined to give retroactive effect to our holdings which have expounded on this issue. See Commonwealth v. Gagliardi, 418 Mass. 562 (1994), cert. denied, 513 U.S. 1091 (1995); Commonwealth v. Sama, 411 Mass. 293 (1991); Commonwealth v. Grey, 399 Mass. 469 (1987). Nothing in this case persuades us to depart from those decisions. The decision of the motion judge denying the defendant's motion for a new trial is affirmed.

So ordered.