Commonwealth v. Greco , 384 Mass. 799 ( 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 prove alibi, see Commonwealth v. McLeod, 367 Mass. 500 (1975); and (4) otherwise incorrectly explained the burden of proof.

John Cavicchi for Louis Greco. Robert J. McKenna, Jr., Assistant District Attorney, for the Commonwealth. Stephen R. Delinsky & Barbara A. H. Smith, Assistant Attorneys General, for the Attorney General, amicus curiae, submitted a brief. Andrew Good, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

For the reasons stated in Commonwealth v. Tameleo, supra, and Commonwealth v. Pisa, ante 362 (1981),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.

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 pointfs] suggest that [they were] not thought to be critical.” Commonwealth v. Grace, 381 Mass. 753, 760 (1980).