COMMONWEALTH vs. FRANK GRACE (and a companion case ).

COMMONWEALTH vs. FRANK GRACE (and a companion case [Note 1]).

376 Mass. 499

September 12, 1978 - September 29, 1978

Bristol County

Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, LIACOS, & ABRAMS, JJ.

There was no merit to contentions of two defendants that they were entitled to a new trial because the judge's charge to the jury contained analogies to the jurors' daily lives in defining reasonable doubt and references to parole consequences of various verdicts where the use of analogies, taken in the context of the entire charge, did not amount to reversible error and where the defendants failed to argue their exception to the charge on the parole consequences on a previous appeal. [500-501]

MOTION for a new trial filed in the Superior Court on August 10, 1977.

The proceeding was heard by Brogna, J.

The case was submitted on briefs.

Daniel F. Featherston, Jr., for the defendants.

Peter B. Gay, Special Assistant District Attorney, for the Commonwealth.

ABRAMS, J. The defendants appeal from the denial of their second motion for a new trial. We have already affirmed their convictions and the denial of their first motions for new trials, Commonwealth v. Grace, 370 Mass. 746 (1976) (Frank); Commonwealth v. Grace, 370 Mass. 759 (1976) (Ross). Although both defendants had obtained plenary review pursuant to G. L. c. 278, Section 33E, neither obtained approval from a single justice to pursue these appeals, as required by the statute. See G. L. c. 278,

Page 500

Section 33E. After exhaustive and plenary review under Section 33E, such approval is required. These appeals are, therefore, not properly before us. Since the Commonwealth has not argued the impropriety of these appeals' being entered in this court without the approval of a single justice, we consider the issues raised to determine if the motions for new trials were correctly denied. We conclude that there was no error and affirm the order denying relief.

Both defendants claim that they are entitled to a new trial as a result of our holding in Commonwealth v. Ferreira, 373 Mass. 116 (1977). They claim that the charge to the jury contained analogies to the jurors' daily lives in defining reasonable doubt and references to parole consequences of various verdicts and hence reversal is required. We disagree.

We note that trial counsel took to exception to the reasonable doubt portion of the charge and that experienced appellate counsel failed to brief or argue the correctness of the charge on the first appeal. "It has been the unbroken practice both under the statute and at common law respecting motions for new trial not to examine anew the original trial for the detection of errors which might have been raised by exceptions taken at the trial." Commonwealth v. McLaughlin, 364 Mass. 211 , 229 (1973), quoting from Commonwealth v. Dascalakis, 246 Mass. 12 , 24 (1923). See Commonwealth v. Morgan, 280 Mass. 392 , 394 (1932) (failure to except to portion of the jury charge cannot be raised as a matter of right on motion for new trial); Commonwealth v. Morrison, 134 Mass. 189 , 190 (1883) (where defendant failed to except to portion of jury charge at trial, defendant had no ground to except to denial of motion for new trial).

Moreover, we note that the judge's charge concerning reasonable doubt in these cases, unlike the charge in Ferreira, emphasized "moral certainty" which is both a traditional and an acceptable instruction. See Commonwealth v. Fielding, 371 Mass. 97 , 116-117 (1976); Commonwealth v. Webster, 5 Cush. 295 , 320 (1850). The use of

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analogies, taken in the context of the entire charge, did not amount to reversible error. Compare Commonwealth v. Coleman, 366 Mass. 705 , 712 (1975), and Commonwealth v. Ferguson, 365 Mass. 1 , 12 (1974), with Commonwealth v. Ferreira, supra at 129. We find the instant cases more closely analogous to the Coleman and Ferguson cases than to the Ferreira case.

The charge on the parole consequences of possible murder convictions also does not require reversal. This court has subscribed to a "long-standing general rule that neither sentencing nor parole may appropriately be considered by the jury in reaching their verdict." Commonwealth v. Mutina, 366 Mass. 810 , 823 n.12 (1975). See Commonwealth v. Goodwin, 356 Mass. 632 , 633-634 (1970). The defendants excepted to this portion of the charge but failed to argue this exception as error at the original appeal. Thus, this claim of error has been waived. Commonwealth v. Amazeen, 375 Mass. 73 , 74 n.1 (1978). Commonwealth v. Kleciak, 350 Mass. 679 , 681 (1966). See G. L. c. 278, Section 33D; S.J.C. Rule 1:13, as amended, 366 Mass. 853 (1975). Cf. Commonwealth v. Grace, supra at 758; Commonwealth v. Roberts, 362 Mass. 357 , 369 (1972).

While such remarks are better left unsaid, we think that not every comment on parole consequences by a judge necessarily requires a new trial. See Commonwealth v. Burnett, 371 Mass. 13 , 16 (1976).

We have reviewed the charge as a whole and find that it stressed the duty of the jurors, the seriousness of their decision, moral certainty in defining reasonable doubt, and the Commonwealth's burden of proof. Therefore, we hold that a new trial is not mandated.

Order denying motion for new trial affirmed.

FOOTNOTES

[Note 1] Commonwealth vs. Ross M. Grace.