COMMONWEALTH vs. JOSEPH ROBIDEAU.

CORDY, J. On July 2, 1964, the defendant was convicted by a jury of one count of murder in the first degree, G. L. c. 265, § 1; and two counts of armed robbery, G. L. c. 265, § 17, for his role in the robbery of a Fall River bar that resulted in the shooting death of its owner, Jean Thibeault. On his conviction of murder in the first degree, the jury recommended that the death penalty, then in effect, not be imposed, and the defendant was sentenced to life in prison. He also received lesser concurrent

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sentences on his armed robbery convictions. [Note 1] He did not appeal.

Nearly forty-five years later, the defendant filed a motion for new trial in the Superior Court, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), collaterally attacking his conviction. Following an evidentiary hearing, a judge denied the defendant's amended motion [Note 2] without prejudice and granted the defendant leave to renew that motion subject to the outcome of the appeal of his codefendant, John F. Petetabella, from the denial of a similar motion for new trial. See Commonwealth v. Petetabella, 459 Mass. 177 (2011) (Petetabella). Rather than awaiting the outcome of that case, the defendant appealed the denial of his motion, and the case was docketed in this court as a direct entry of an appeal from a conviction of murder in the first degree. We subsequently affirmed the denial of Petetabella's motion for new trial. Id. at 193. [Note 3]

The defendant's arguments track those made in Petetabella, supra. His primary contention is that his trial counsel was ineffective for not pursuing a direct appeal and, consequently, that this court should treat the claims of error he now raises as if raised on direct appeal, and afford them the more favorable standard of review under G. L. c. 278, § 33E, to determine if there was a substantial likelihood of a miscarriage of justice. The defendant also contends that the trial judge gave an erroneous "presumption of innocence" instruction, that he was improperly shackled during the trial, and that these amount to structural errors requiring automatic reversal of his convictions. We conclude that our decision in Petetabella is controlling in

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the present appeal and affirm the judge's denial of the defendant's amended motion for new trial.

Background. The facts underlying the armed robberies and murder for which the defendant was found guilty are set out in detail in our decisions affirming the convictions of Petetabella and Gerald Sousa. See Petetabella, supra at 179-181; Commonwealth v. Sousa, 350 Mass. 591, 592-594 (1966). Essentially, early in the morning of December 28, 1963, after a night of heavy drinking, the defendant, Petetabella, and Sousa entered Padden's Cafe, a Fall River bar, with the intention of committing a robbery. After learning that the money was locked up for the night, the defendant held a female patron at knifepoint, while Petetabella executed Thibeault with a single shot through the back and Sousa unsuccessfully attempted to shoot another bar employee. The men took several wallets and fled the bar. [Note 4]

The defendant testified at trial, admitting to his role in the robbery, including striking the female patron he held at knife point, but claiming that Sousa was not present. The defendant also testified about his difficult childhood and his substance abuse. [Note 5] His defense was lack of criminal responsibility, and medical experts (one called by the defense and one by the Commonwealth) testified at trial. Both experts testified that the defendant knew the difference between right and wrong, but the expert for the defense opined that he could not control his impulses.

Discussion. 1. Standard of review. The defendant urges us to consider the errors he alleges in his motion for new trial as if they had been raised in a direct appeal of his convictions (and not the appeal of a failed collateral attack) because his trial counsel was ineffective in failing to adequately consult with him regarding the viability of such an appeal. The motion judge rejected this argument. We review the judge's denial of the motion

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for new trial on this particular issue "only to determine whether there has been a significant error of law or other abuse of discretion." [Note 6] Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

The defendant alleged in an affidavit filed in support of his motion that following the trial, his counsel "told [him] that any direct appeal on [his] behalf would be meritless because [he] took the witness stand at [his] trial," and that but for this advice, "[he] would have taken an appeal." The defendant elaborated on this in his testimony at the evidentiary hearing, recalling that he and his counsel met in a room after the verdict to talk, and that his counsel (now deceased) told him, "By going on the stand and admitting to the crime and everything . . . you have no appeal now." The defendant also testified that his counsel told him that what he had done "was like pleading guilty," leaving him with "no options." Defense counsel also apparently told the defendant that if there were changes (undescribed) in the law that could help in the case, he would "come up and see [him] and let [him] know."

We rejected an identical argument in Petetabella, supra at 181, 183, based on a similar assertion regarding his attorney's advice. [Note 7] The motion judge in that case was the same judge who denied the defendant's motion in this case, and he heard both Petetabella's and the defendant's testimony. In his memorandum and order denying the defendant's motion, the judge found that "the substance of each of the issues the defendant raises is identical to those raised in . . . Petetabella's motion for new trial." He then affirmed that his conclusions in denying Petetabella's motion were "correct," and that the same result "must pertain here." [Note 8] In his memorandum and order on Petetabella's motion, the judge concluded that there were two related reasons

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why an appeal was not taken. First, by the jury recommending against the death penalty, Petetabella had, in substance, "won," and there was no tangible benefit to be gained in an appeal. [Note 9] Second, if such an appeal were to prevail, Petetabella would have to face the risk on retrial that the next jury would not recommend that he be spared execution.

We understand the motion judge's conclusions regarding the circumstances attendant to there being no direct appeal in Petetabella's case and the defendant's case to be the same [Note 10] -- that such appeals would have had little merit in light of both Petetabella and the defendant having admitted to the crimes in their trial testimony; that it was not manifestly unreasonable for their attorneys to recommend that they not appeal where, if they were to prevail, they would face the risk of the death penalty at a retrial; and that both Petetabella and the defendant reasonably accepted their attorneys' advice.

As we concluded in Petetabella, supra at 183, in these circumstances, trial counsel was not ineffective even if measured by the standard we adopted ten years after the trial, in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) ( "whether there has been serious incompetency, inefficiency, or inattention of counsel . . . falling measurably below that which might be expected from an ordinary fallible lawyer"). Consequently, we conclude that the defendant's case is not here on direct appeal but as an appeal from a collateral attack on a final conviction. See Petetabella, supra at 183. Therefore, we review his remaining substantive claims of error to see whether they are structural in nature and, if not, whether they create a "substantial risk of a miscarriage of justice." Commonwealth v. Randolph, 438 Mass. 290, 294 (2002), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

2. Claims of structural error. The defendant claims that two

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of the errors alleged are structural in nature. [Note 11] First, he argues that the trial judge's instruction regarding the presumption of innocence was structural error because it suggested to the jury that the defendant had the burden of proving his innocence once the Commonwealth began presenting its case. However, in Petetabella, supra at 184, we specifically stated that "an error in a presumption of innocence instruction . . . does not rise to the level of a structural error." None of the additional considerations cited by the defendant gives us reason to revisit our conclusion. We therefore reject the defendant's argument on this point.

Second, the defendant argues that the fact that he was placed in shackles and under armed guard throughout the trial was structural error because it undermined the presumption of his innocence and violated his right to due process of law under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. In support of his argument, the defendant cites Deck v. Missouri, 544 U.S. 622, 628-629 (2005) (Deck) (Fifth and Fourteenth Amendments prohibit use of physical restraints visible to jury absent discretionary decision by trial judge that they are justified by State interest specific to particular trial). In Petetabella, supra at 187, we declined to decide whether Deck applied retroactively. However, assuming that it did, we concluded that, in light of the customs at the time concerning court room security and "given [Petetabella's] execution-style killing of [Jean Thibeault]," the judge did not abuse his discretion in denying the motion for new trial on this ground. [Note 12] Petetabella, supra. Here, we similarly conclude that the defendant's shackling in front of the jury did not amount to structural error in light of the clear security risk he posed. [Note 13] Thus, we decline to diverge from our analysis in Petetabella.

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We are left to consider whether these two errors, although not structural, nevertheless create a "substantial risk of a miscarriage of justice." Commonwealth v. Randolph, supra. "A substantial risk of a miscarriage of justice exists when we have 'a serious doubt whether the result of the trial might have been different had the error not been made.' " Id. at 297, quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002). For the reasons discussed in Petetabella, supra at 184-185, 187, we conclude that neither the instruction nor the shackling issues created a substantial risk of a miscarriage of justice. [Note 14] Consequently, the judge's denial of the defendant's motion for new trial was not manifestly unjust, nor was the trial infected with prejudicial constitutional error.

Conclusion. We conclude that the defendant's appeal is identical in all respects to that of his codefendant in Petetabella, supra, which is dispositive. Accordingly, we affirm the motion judge's denial of the defendant's motion for new trial.

So ordered.