Commonwealth v. James , 477 Mass. 549 ( 2017 )

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SJC-12196
COMMONWEALTH vs. STEVEN JAMES.
Suffolk. March 6, 2017. - August 1, 2017.
Present: Gants, C.J., Lenk, Hines, Lowy, & Budd, JJ.
Practice, Criminal, Capital case, Postconviction relief.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 9, 2016.
The case was reported by Hines, J.
Rosemary Curran Scapicchio (Dennis M. Toomey also present)
for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
HINES, J. The narrow question before us, here on a
reservation and report from a single justice of the county
court, is whether a juvenile who has been convicted of murder in
the first degree, and whose conviction has been affirmed by this
court after plenary review, is thereafter subject to the
gatekeeper provision of G. L. c. 278, § 33E. We conclude that
2
the gatekeeper provision applies. The case should now proceed
in the county court as a gatekeeper matter.
Background. The defendant, Steven James, was convicted in
1995 of murder in the first degree on a theory of extreme
atrocity or cruelty. He was sentenced to a mandatory term of
life without the possibility of parole, pursuant to G. L.
c. 265, § 2, as amended through St. 1982, c. 554, § 3. See
Commonwealth v. James, 427 Mass. 312, 313, 318 (1998). He was
seventeen years old when the killing occurred in 1994, id. at
315, and under the law at that time was considered an adult for
purposes of the criminal proceedings. See Watts v.
Commonwealth, 468 Mass. 49, 50-51 (2014). On appeal, this court
"reviewed the entire record and conclude[d] that relief pursuant
to G. L. c. 278, § 33E, [was] not warranted," and affirmed
James's conviction. James, supra at 318.
In 2013, James filed a motion for a new trial in the
Superior Court, with multiple subsequent supplements. A judge
other than the trial judge, who had since retired, held a
nonevidentiary hearing and denied the motion. However, because
James was under the age of eighteen at the time of the killing,
he was resentenced to life with the possibility of parole. See
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 658 (2013), S.C., 471 Mass. 12 (2015) ("imposition of a
sentence of life in prison without the possibility of parole on
3
individuals who were under the age of eighteen when they
committed the crime of murder in the first degree violates the
prohibition against 'cruel or unusual punishments'"). James
thereafter filed an application in the county court, pursuant to
the gatekeeper provision of G. L. c. 278, § 33E, seeking leave
to appeal the denial of his motion for a new trial. He
subsequently supplemented the petition, arguing that he is not
subject to the gatekeeper provision at all, since he now has
been resentenced and is no longer sentenced to the most severe
sentence recognized in Massachusetts, life without parole
eligibility. The single justice reserved and reported that
threshold procedural question, namely, "whether the
postconviction case of a defendant who was tried on an
indictment for murder in the first degree and was convicted of
murder in the first degree, but who was a juvenile at the time
of the crime and thus subject to a lesser penalty than life
without the possibility of parole, is a 'capital case' as
defined in § 33E." See Mass. R. Civ. P. 64 (a), as amended, 423
Mass. 1403 (1996).
Discussion. As the single justice recognized, James was
"tried on an indictment for murder in the first degree and was
convicted of murder in the first degree." G. L. c. 278, § 33E.
On direct appeal, this court reviewed the whole case, including
both the law and the evidence, and affirmed his conviction. See
4
Commonwealth v. Gunter, 459 Mass. 480, 485-487, cert. denied,
565 U.S. 868 (2011); James, 427 Mass. at 318. Irrespective of
the subsequent resentencing, after his direct appeal concluded,
James continued to stand convicted of murder in the first
degree, and remained convicted of a "capital case" for purposes
of the statute. See Commonwealth v. Francis, 450 Mass. 132, 137
(2007); Commonwealth v. Gilbert, 447 Mass. 161, 165 (2006). In
such a case, the statute plainly and expressly prohibits a
subsequent appeal from "any motion" filed in the Superior Court
unless authorized by a single justice "on the ground that it
presents a new and substantial question." G. L. c. 278, § 33E.
See Commonwealth v. Davis, 410 Mass. 680, 683 (1991).1
We recognize that, following the court's decision in
Diatchenko, 466 Mass. 655, a juvenile defendant is no longer
subject to a sentence of life without the possibility of parole.
We left open the question in Commonwealth v. Brown, 474 Mass.
576, 592 n.9 (2016), whether "a juvenile convicted of murder in
the first degree is entitled to plenary review under G. L.
c. 278, § 33E, and is subject to the gatekeeper provision of
1
In contrast, when a verdict has been reduced from murder
in the first degree after plenary review under G. L. c. 278,
§ 33E, the defendant no longer stands convicted of a "capital
case," and therefore is not subject to the statute's gatekeeper
restriction governing future appeals. See Commonwealth v.
Gilbert, 447 Mass. 161, 165 n.7 (2006); Commonwealth v. Perry,
424 Mass. 1019, 1020 (1997); Commonwealth v. Lattimore, 400
Mass. 1001, 1001 (1987).
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that statute; or whether such a defendant is not entitled to
plenary review but is entitled to a right of appeal from the
denial of all motions for a new trial." This case does not
present an occasion to decide that question, however, because
this is not James's direct appeal and the single justice did not
report that question. James already has had his direct appeal,
received plenary review under G. L. c. 278, § 33E,2 and,
following that review, continues to stand convicted of murder in
the first degree.
After receiving the benefit of this "uniquely thorough
review," it follows that James is thereafter afforded "a
narrower opportunity for appeal of postconviction motions than
other criminal defendants." He must comply with the gatekeeper
2
Plenary review under the statute has been described as a
"uniquely thorough review." Dickerson v. Attorney Gen., 396
Mass. 740, 744 (1986).
"Under G. L. c. 278, § 33E, this court has
extraordinary powers in reviewing capital convictions on
direct appeal: we consider the whole case, both the law
and the evidence, to determine whether there has been any
miscarriage of justice. . . . Unlike appellate review of
convictions of other crimes, our consideration of first
degree murder cases is not limited to issues based on
objections rendered at trial. . . . We are empowered under
G. L. c. 278, § 33E, to consider questions raised by the
defendant for the first time on appeal, or even to address
issues not raised by the parties, but discovered as a
result of our own independent review of the entire record."
(Citations omitted.)
Id. See Commonwealth v. Gunter, 459 Mass. 480, 485-487, cert.
denied, 565 U.S. 868 (2011).
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provision. Dickerson v. Attorney Gen., 396 Mass. 740, 744
(1986) ("since we have already reviewed the 'whole case' as
required by G. L. c. 278, § 33E, the capital defendant
justifiably is required to obtain leave of a single justice
before being allowed once again to appear before the full
court"). Plenary review (for the direct appeal) and the
gatekeeper provision (for subsequent appeals) are interconnected
and complementary component parts of the G. L. c. 278, § 33E,
process. See Gunter, 459 Mass. at 486-487. See also Dickerson,
supra at 743-744. As we have said, once plenary review has been
given, "[i]nterests of judicial economy are best served by
having a single justice 'screen out' postconviction motions
which do not present a 'new or substantial question.'" Davis,
410 Mass. at 683, quoting Dickerson, supra at 744-745. See
Leaster v. Commonwealth, 385 Mass. 547, 549-550 (1982). See
also Commonwealth v. Lanoue, 409 Mass. 1, 8 (1990) (O'Connor,
J., concurring). This is no less true for a juvenile defendant
than it is for an adult defendant.3
3
In Patrick P. v. Commonwealth, 421 Mass. 186, 193-194
(1995), the court held that the determination of what
constitutes a "capital case" for purposes of the exercise of
plenary review under G. L. c. 278, § 33E, takes "into account
not only the requirement of a first degree murder indictment,
but also the possible severity of the punishment involved."
Similarly, in Dickerson, 396 Mass. at 744, the court described
plenary review as being "warranted by the infamy of the crime
and the severity of its consequences." Those cases do not aid
the defendant's position. They simply described who is entitled
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Conclusion. We answer the reported question as follows:
the gatekeeper provision of G. L. c. 278, § 33E, applies to a
juvenile defendant who, like James, has had a direct appeal, has
received plenary review and, following that review, remains
convicted of murder in the first degree. The case shall proceed
in the county court for consideration of James's gatekeeper
application, specifically whether the issues presented in his
new trial motion are "new and substantial" for purposes of
§ 33E. See Gunter, 459 Mass. at 487-488.
So ordered.
to plenary review and why. They do not suggest that plenary
review and the gatekeeper provision should be decoupled in any
circumstances. Indeed, once the court has conducted plenary
review, so long as the defendant remains convicted of murder in
the first degree, he or she continues to be a capital defendant
for purposes of the gatekeeper provision of the statute, and the
same rationale for the gatekeeper provision continues to apply,
irrespective of any ensuing alteration of sentence.