Opinion
14-P-902
11-20-2015
COMMONWEALTH v. TIMOTHY LUCAS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury found the defendant guilty of murder in the second degree in 1993. This court affirmed his conviction on direct appeal, rejecting challenges based on, inter alia, the defendant's contention that it was error for the trial judge not to instruct the jury on involuntary manslaughter. See Commonwealth v. Lucas, 39 Mass. App. Ct. 1114 (1995). The Supreme Judicial Court denied the defendant's application for further appellate review. See Commonwealth v. Lucas, 421 Mass. 1108 (1995). Before us is the defendant's pro se appeal from the order denying his third motion for a new trial, which, as he concedes, is essentially an argument that this court "incorrectly decided" the question of the trial judge's refusal to instruct on involuntary manslaughter in his direct appeal. We affirm.
In support of his contention that this court erred in deciding his initial appeal, the defendant analogizes to Commonwealth v. Horne, 466 Mass. 440 (2013), and distinguishes Commonwealth v. Childs, 445 Mass. 529 (2005). However, the defendant insists that he is not relying on Horne as if it had created a new rule or changed the applicable legal landscape under Griffith v. Kentucky, 479 U.S. 314, 322-323 (1987), and Teague v. Lane, 489 U.S. 288, 301 (1989). Rather, the defendant argues that Horne's conclusion that an involuntary manslaughter instruction was warranted in circumstances that the defendant believes are similar to his own shows that this court's prior decision was "flat wrong." See Horne, supra at 444. This is the basis of his contention that he is not estopped from raising this argument: "the rule of collateral estoppel does not preclude the defendant from seeking relief on this point, that this courts' [sic] prior decision was flat wrong as it was applied to the circumstances and facts of his argument that he was constitutionally entitled to involuntary manslaughter instructions."
As a matter of terminology, the defendant is not "collaterally" estopped from relitigating this issue. "Where, as here, the issue actually litigated arises from the same indictment, the principle of issue preclusion is more appropriately referred to as direct estoppel." Commonwealth v. Rodriguez, 443 Mass. 707, 709 (2005).
The defendant's argument is foreclosed by the Supreme Judicial Court's opinion in Commonwealth v. Rodriguez, 443 Mass. 707 (2005). As in Rodriguez, "[t]he defendant raises no new factual or legal issue in [his] rule 30 (b) motion. [He] simply seeks to relitigate . . . based on [his] assertion that [his] direct appeal was decided wrongly. We conclude that principles of direct estoppel operate as a bar to the defendant's attempt in [his] rule 30 (b) motion to relitigate" an issue -- the trial judge's refusal to instruct on involuntary manslaughter -- that was litigated at trial and already reviewed on direct appeal. Id. at 710-711.
See Mass.R.Crim.P. 30 (b), as appearing in 435 Mass. 1501 (2001).
The defendant claims unfairness in the application of estoppel principles to his current new trial motion, arguing that this court's "decision on his direct appeal was flawed and fundamentally unfair and for this court to procedurally bar him from collaterally attacking the validity of such is a manifest injust [sic]." But the defendant's pro se brief evinces his understanding that he has, in fact, already had the benefit of his day(s) in court: "Here, what is a criminal defendant to do when any court issues a ruling that is flawed or flat wrong. File for reconsideration or appeal to the next highest court seeking relief." The defendant has had every opportunity to seek relief on this issue. First, he appealed the trial judge's refusal to instruct the jury on involuntary manslaughter to this court, which considered the issue and affirmed the ruling of the trial judge in a thorough decision. Although it does not appear that the defendant ever petitioned this court for a rehearing on his direct appeal, he did in fact seek further appellate review of that decision. As the motion judge below wrote in his comprehensive decision, "[t]he defendant's opportunity to argue that the Appeals Court 'got it wrong' was his application for further appellate review of the Appeals Court's decision, which the S[upreme] J[udicial] C[ourt] denied."
The defendant nonetheless seems to believe that he can continue to invoke rule 30(b). He cannot. A motion for a new trial may not be used as a vehicle to compel reconsideration of questions of law on which a defendant has already had his day in appellate court. See Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). Where we have already considered and decided these issues previously, they warrant no further review.
Although he is not entitled to a consideration on the merits, remarkably, as the motion judge and the Commonwealth have pointed out, Horne the very case that the defendant claims shows that this court's prior opinion on his entitlement to an involuntary manslaughter charge was incorrectly decided -- includes a footnote, Horne, 466 Mass. at 445 n.3, that explicitly distinguishes Commonwealth v. Dyous, 436 Mass. 719, 731 (2002), the case of one of the defendant's coventurers in the murder. In Dyous, the court concluded that the circumstances of the same murder (albeit on a different trial record) did not entitle the defendant's coventurer to an involuntary manslaughter instruction. See ibid. More than ten years later, the footnote in Horne indicates that, like the defendant in Childs, but unlike the defendant in Horne, the defendant's coventurer's conduct -- intentionally firing a gun into an automobile, "killing someone inside, in circumstances known to defendant that suggested that someone was inside [the] vehicle" -- was of the kind that "creates nothing less than a plain and strong likelihood of death" and, that in such cases there is "no entitlement to [an] involuntary manslaughter instruction." Horne, supra at 445 & n.3, citing Commonwealth v. Childs, 445 Mass. at 533. Although, again, the facts that emerged at Dyous's trial were not necessarily identical to those at the defendant's trial for the same murder, this footnote, see ibid., strongly suggests that the defendant's argument would fare no better on the merits today. Contrary to the defendant's reasoning, in Horne, the Supreme Judicial Court puts the defendant's coventurer's case on the Childs end of the spectrum in terms of entitlement to an involuntary manslaughter instruction. See Horne, supra.
The motion judge observed: "As a general rule, separate trials, even of codefendants, are unlikely to have identical evidence and the present case and Dyous are no exception. For obvious reasons, however, the facts in Dyous more closely track those here than those in Horne, which involved a defendant firing a rile into a window covered with venetian blinds and dark curtains at 1:30 A.M. See Horne, 466 Mass. at 444." We agree.
Thus the defendant is in a similar position to the directly estopped defendant in Rodriguez. In Rodriguez, the defendant claimed that a subsequent decision by the Supreme Judicial Court had indicated that that court's decision in her case was wrongly decided. See Rodriguez, 443 Mass. at 708. Even if, as in Rodriguez, we assume without deciding "that rule 30(b) contemplates relief in the highly unusual circumstances asserted by the defendant, the flaw in [his] argument is that," as discussed above, Horne does not actually indicate that our previous decision in his case "had been decided wrongly." Id. at 711.
Finally, the motion judge did not abuse his discretion in denying the defendant's motion for an evidentiary hearing. See Commonwealth v. Bresilla, 470 Mass. 422, 428 (2015). Where the issue the defendant raised in his motion was already raised and adjudicated, and thereby estopped, the motion judge properly denied the motion for an evidentiary hearing.
We therefore affirm the order denying the defendant's third motion for a new trial on the basis of direct estoppel and note that, in addition to what has already been said, the reasoning of the motion judge strongly suggests that the defendant cannot prevail on the merits either.
Order denying third motion for new trial affirmed.
By the Court (Katzmann, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: November 20, 2015.