COMMONWEALTH vs. LOUIS GRECO.

COMMONWEALTH vs. LOUIS GRECO.

384 Mass. 799

August 13, 1981

Louis Greco, a codefendant of Henry Tameleo, see Commonwealth v. Tameleo, ante 368 (1981), was granted leave by a single justice of this court to appeal from an order of the Superior Court denying his motion for a new trial. He claims that the trial judge's instructions to the jury (1) created a mandatory presumption of malice, shifting the burden of proof to the defendant, see Sandstrom v. Montana, 442 U.S. 510 (1979); (2) trivialized the jury's duty through the use of personal decision-making examples in the definition of the reasonable doubt standard, see Commonwealth v. Ferreira, 373 Mass. 116 (1977); (3) shifted the burden of proof to the defendant to

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prove alibi, see Commonwealth v. McLeod, 367 Mass. 500 (1975); and (4) otherwise incorrectly explained the burden of proof.

For the reasons stated in Commonwealth v. Tameleo, supra, and Commonwealth v. Pisa, ante 362 (1981), [Note 1] we conclude that the order of the Superior Court judge denying the defendant's motion for a new trial should be affirmed.

So ordered.

FOOTNOTES

[Note 1] With the exception of the Sandstrom issue, all of the defendant's claims of error could have been raised at least by the time of his third motion for a new trial (1978). "The repeated failures of counsel to raise the point[s] suggest that [they were] not thought to be critical." Commonwealth v. Grace, 381 Mass. 753 , 760 (1980).