|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Simmons, 417
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Donald A. Beaudry,
Elizabeth Dunphy Farris, Asst. Dist. Atty.,
for the Com.
Before LIACOS, C.J., and WILKINS, ABRAMS and
O'CONNOR, JJ.
O'CONNOR, Justice.
Following
a jury trial, the defendant appeals from a conviction of murder in the first
degree, from a denial in the trial court of his motion for a new trial, and
from a denial by a single justice of this court of a second motion for a new
trial. In the appeal from his
conviction, the defendant argues that a false statement in the nature of an
alibi that he made to the police when he was arrested for the murder was
involuntarily made and therefore the trial judge erred in admitting it in
evidence. He also says that the
prosecutor impermissibly argued to the jury in his summation that the defendant
had a degenerate life‑style and was the type of person who would be
likely to commit murder. In addition,
the defendant argues that the judge's instructions to the jury concerning joint
venture felony‑murder, with armed robbery as the underlying felony, were
prejudicially incomplete because the judge failed to tell the jury that the
defendant could be guilty of armed robbery only if he knew that his coventurer
was armed at the time of the incident.
[1]
The defendant's contention with respect to his first motion for a new trial is
that, by denying his motion, the trial judge deprived him of important
impeachment evidence that did not become available to him until after the
trial. Finally, the defendant argues
that, because the Commonwealth's appellate brief in this court disclosed to the
defendant for the first time exculpatory evidence that the prosecutor had
withheld throughout the trial despite the defendant's request for it, the
defendant's motion for a new trial grounded on that contention[417 Mass. 62] should have been allowed
by the single justice. (FN1) After considering the defendant's arguments
and the entire record, we affirm the conviction and the denial of the motions
for postconviction relief.
There
was evidence that, on the morning of August 26, 1987, the body of Harry
Holland, Jr., was found floating close to the edge of the Connecticut River
near Bondi's Island and the border of West Springfield and Agawam. An autopsy revealed the cause of death to
have been strangulation and blunt force trauma to the head. Death was determined to have occurred during
the early morning hours of August 26.
Items of Holland's clothing were found near a pile of rocks, some of
which were bloodstained, a few yards from where the body was found,
and drag marks flanked by two sets of footprints led from that spot to the
river bank.
There
also was evidence that Raymond David, the owner of the Pub Lounge in
Springfield, observed the defendant and John Cirillo playing pool together at
the lounge after midnight, August 25‑26.
Susan Rainville, an employee at the lounge, testified that she had
ordered the defendant, Cirillo, and Holland to leave the lounge at closing
time, 2 A.M. on August 26. She saw the
three men leave together.
Holland's
truck was recovered after his death on Elmdale Street in West Springfield. Anthony J. Filippone, a resident of 27
Elmdale Street, heard a motor vehicle pull up in front of his house between 2
A.M. and 2:30 A.M. on August 26. He saw
two white men get out of Holland's truck.
Filippone's general description of the two men, including the color of
their hair, matched the appearances of the defendant and Cirillo.
[417 Mass. 63] Cirillo testified at the defendant's trial pursuant to an
agreement with the Commonwealth that anticipated Cirillo's pleading guilty to
the murder in the second degree of Holland.
The agreement required Cirillo to testify truthfully. Cirillo told the jury that in the early
morning of August 26, he, the defendant, and Holland left the Pub Lounge in
Holland's truck. They drove to Bondi's
Island, parked the truck, and ingested cocaine supplied by Holland. After finishing the cocaine the three got out
of the truck. At this time, out of
earshot of Holland, Cirillo and the defendant planned to rob Holland of the
cocaine and money which they believed he had.
The three men moved to a clearing by the tree line and engaged in sexual
acts. Then the defendant demanded more
cocaine from Holland. While Cirillo
stood fifteen to twenty feet away, the defendant and Holland began to
fight. The defendant repeatedly struck
Holland about the head and chest.
Meanwhile, Cirillo returned to the truck to look for a weapon. Finding a tire iron in the truck, Cirillo
walked up behind Holland while he was still fighting with the defendant and
struck him four or five times on the head with the tire iron. Holland fell to the ground and Cirillo struck
him once or twice more. During this
attack, the defendant moved away from Holland and stood by. Cirillo, and then the defendant, checked
Holland's pulse and, not finding any, believed that he was dead. At this point, Cirillo searched Holland's
pockets for money or cocaine. The search
turned up only pocket change which Cirillo and the defendant left with
Holland. The two then dragged Holland's
body to the river's edge and placed it in the water. The two men returned to Holland's truck and
the defendant drove it to Elmdale Street.
They then walked to the bus station and separated, after agreeing to
deny any knowledge of the killing.
Cirillo denied strangling Holland and testified that he did not see the
defendant strangle him.
At
approximately 6 A.M. on August 26, West Springfield police Officer Charles
Harlow found the defendant sleeping by the side of Riverdale Road in West
Springfield. He woke [417 Mass. 64] the
defendant who told Harlow he had fallen asleep because he was tired from
walking.
The
defendant was arrested for murder on September 3, 1987. On being shown the warrant for his arrest the
defendant spontaneously volunteered to Trooper John Cauley that he had an
alibi. Following a voir dire, Trooper
Cauley testified to the jury that the defendant appeared to have been drinking
but was "cognizant of what was going on," and "understood what
was happening to him." After being
transported to the Agawam police station, the defendant told the police that he
had been at the Pub Lounge with Gray Chandler on the night of August 25. The defendant was not questioned further at
that time because the officers determined that his "belligerent" and
"combative" demeanor would make such questioning futile.
Chandler
testified that the defendant had not been with him on the night of August 25,
but had been with him on the night of August 24 and until midmorning of the
25th. At the trial, the defendant
presented a revised account of his whereabouts on the night of August 25 and
the early morning of August 26. He said
that he had spent the early part of August 25 at his cousin's house and that he
went from there to downtown Springfield where he spent the early evening shooting
pool at a barroom. According to the
defendant's testimony, he left the barroom at about 9:15 P.M. and went by bus
to Holyoke to meet Sandra Rogers for a prearranged "dinner
date." He got off the bus at the
outskirts of Holyoke and walked. At
approximately 11 P.M. he stopped at a package store along the way. The defendant reached the vicinity of
Rogers's apartment and sat across the street in a park. At about 12:15 A.M., August 26, the defendant
saw Rogers at an apartment window and beckoned for her to come down and speak
with him. Rogers met the defendant in
the park, but would not let him into her apartment. They talked for some time and then Rogers
left the defendant in the park. She gave
the defendant a jacket and some blankets to fight off the night's chill. After Rogers's departure, the defendant began
to walk back toward Springfield and, becoming tired, fell [417 Mass. 65] asleep
at the side of the road where he was found by Officer Harlow.
The
defendant presented the testimony of John Cuoco, an inmate at the York Street
Jail. Cuoco testified that he had
overheard a conversation in the jail between Cirillo and another inmate in
which Cirillo said that, even though the defendant was not at the scene of the
murder, "he [Cirillo] was going to take him down."
[2]
We turn now to a discussion of the issues on appeal. The first issue we shall take up is the
defendant's assertion that, because he was intoxicated when he told the police
that he had been with Gray Chandler on the night of August 25, a claim that
Chandler controverted and the defendant abandoned at trial, the statement was
involuntary and inadmissible. The error,
the defendant says, was prejudicial because it damaged his credibility as a
witness and unfairly tended to show his consciousness of guilt. It is true, of course, that if the
defendant's statement was involuntary, it was also inadmissible. It is true, too, that the statement was
involuntary if it was in large measure a product of intoxication.
Commonwealth v. Benoit, 410 Mass. 506, 511, 574 N.E.2d 347 (1991).
Commonwealth v. Hosey, 368 Mass. 571, 577‑579, 334 N.E.2d 44
(1975).
[3]
In Commonwealth v. Blanchette, 409
Mass. 99, 106, 564 N.E.2d 992 (1991), we said:
"When voluntariness is an issue, a judge should conduct a voir dire
examination to determine whether the statements are indeed voluntary.... If the judge determines that the statements
are voluntary, the question should be submitted to the jury so that they may
make the final determination.... The
Commonwealth has the burden of proving the voluntariness of such statements
beyond a reasonable doubt."
(Citations omitted.) Here, the
judge conducted a proper voir dire, and found that, although the defendant may
have been somewhat intoxicated when he spoke to the police, his mind was
rational and his faculties were under control.
He concluded that the statement had been voluntarily given. The judge's finding of voluntariness was
supported by the testimony of the police officers that, although the
defendant's speech was slightly slurred, the police had no [417 Mass. 66]
difficulty understanding him, he walked without difficulty, and he appeared to
appreciate the situation he was in.
"Although alcohol intoxication is an important factor bearing on
the issue of voluntariness, intoxication alone is not sufficient to negate an
otherwise voluntary act. Commonwealth v. Lanoue, 392 Mass. 583,
587 [467 N.E.2d 159] (1984)." Commonwealth v. Parker, 402 Mass. 333,
341, 522 N.E.2d 924 (1988). The judge's
voir dire findings were supported by the evidence. The evidence was properly admitted at the
trial.
The
next of the defendant's contentions that we address relates to the prosecutor's
closing argument. The defendant did not
object at trial to the argument nor did he request curative instructions. "In considering issues argued on direct
appeal as to which the defendant's appellate rights were not preserved by an
objection or in some manner, we apply the standard of G.L. c. 278, § 33E (1990
ed.). We must decide whether there is a
substantial likelihood that a miscarriage of justice has occurred."
Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d 621 (1992).
The
relevant portion of the prosecutor's summation was as follows:
"Now, ladies and gentlemen, you ask
yourselves why Cirillo and Simmons are together. And is it odd that these two people should be
together? Aren't they the same type of
people? Aren't they the same type of people,
hang around the block, don't have any money, no steady job? And what do they do, these two people? They do the same thing. They look for people who have money to buy
them a drink, and that's the type of life they lead. It's not unusual, ladies and gentlemen, that
Cirillo and Simmons met up. It's not
unusual that they're playing pool for drinks, and it's not unusual that they
avail themselves of someone to buy them drinks, like Harry Holland, and it's
not unusual, as Mr. Braese said, that they leave with this guy and get high
with him. That's the type of life they
had.... It's not unusual[417 Mass. 67] they're together, ladies
and gentlemen. Simmons and Cirillo are
cut from the same mold."
[4][5]
The defendant's contention is that the prosecutor's argument was, "in
essence, that Mr. Cirillo was a degenerate killer, Mr. Simmons [the defendant]
and Mr. Cirillo [were] alike," and that therefore the defendant
"probably killed Mr. Holland."
The thrust of the defendant's argument on appeal is that, in his
summation the prosecutor unfairly urged the jury to infer that the defendant,
like Cirillo, was a bad man who would be likely to commit murder and, from
that, to conclude that he murdered Holland.
We agree that such an argument would have been impermissible. However, we do not agree that that was the
main thrust of the prosecutor's argument.
The theory of the Commonwealth's case was that Cirillo and the defendant
were together at the Pub Lounge where they became involved with Holland, and
that they left the lounge with Holland and went to a remote place where they
killed him in the course of robbing him.
The defendant presented evidence that he was not at the lounge or with
Cirillo. The gist of the prosecutor's
argument was that the Commonwealth was not urging the jury to accept an
unlikely story; that the defendant and
Cirillo had similar life‑styles which were consistent with their having
found and joined each other and Holland at the Pub Lounge on the night of
August 25, as the Commonwealth's witnesses testified. The prosecutor had a right to argue the
evidence and the fair inferences from it in his summation. Commonwealth v. Fitzgerald,
376 Mass. 402, 416, 381 N.E.2d 123 (1978), and cases cited. We are satisfied that, if the defendant had
objected to the argument at trial and the judge had nevertheless permitted the
argument, the judge would have acted within his discretion in concluding that
the relevancy of the argument was not outweighed by unfair prejudice to the
defendant. We are satisfied, too, that
no substantial likelihood of a miscarriage of justice resulted from the
prosecutor's argument.
[6]
The next issue focuses on the judge's instructions to the jury concerning joint
venture felony‑murder. We have
said [417 Mass. 68] that a "defendant [cannot]
properly be found guilty of ... joint venture felony‑murder with armed
robbery as the underlying felony unless, at the close of the Commonwealth's
case, the evidence warranted a finding beyond a reasonable doubt that the
defendant knew that [the coventurer] had a [weapon]." Commonwealth v. Fickett,
403 Mass. 194, 197, 526 N.E.2d 1064 (1988).
The defendant does not argue that the evidence was insufficient for the
jury to find that he knew Cirillo was armed.
Rather, the defendant argues that the judge instructed the jury,
inconsistently with the rationale of
Fickett, that they could find the defendant guilty of murder in the first
degree on a theory of joint venture felony‑murder, with armed robbery as
the underlying felony, without informing the jury that they could only do so if
they found beyond a reasonable doubt that the defendant knew that Cirillo was
armed.
The
relevant portion of the judge's instructions is as follows:
"There
is ... a second theory of first degree murder that is being advanced by the
Commonwealth, and that is called the felony murder rule. The defendant is charged or alleged to have
committed murder in the commission or attempted commission of a crime
punishable by imprisonment for life. The
statute defining murder allows you to find the defendant guilty of first‑degree murder, if you find the
Commonwealth has proved beyond a reasonable doubt that the defendant murdered
the victim in the commission or attempted commission of a crime punishable by
imprisonment for life. Such a crime
would be robbery. Robbery is a felony
that could be punishable by life imprisonment.
"And robbery is defined as the
felonious taking and carrying away of the property of another from his person
and against his will by force and violence or by assault and putting in fear
with intent to steal. Robbery can be
armed or unarmed, and either way, if a person is [417 Mass. 69] guilty
of robbery, the maximum penalty can be life imprisonment.
"Thus, the Commonwealth would have
to prove beyond a reasonable doubt that the defendant murdered the victim,
Harry Holland, in the commission or attempted commission of a crime punishable
by imprisonment for life. This principle
of law which so defines murder, as I have said, is known as the felony murder
rule. The effect of the felony murder
rule is to substitute the intent to commit the underlying felony for the malice
aforethought required for murder. Thus,
the felony murder rule, where applicable, is based on the theory that the
intent to commit the underlying felony, that is robbery, the stealing of drugs
or money from a person, is equivalent to the malice aforethought necessary for
a murder conviction.
"In order to find the defendant
guilty of first‑degree murder under the felony murder rule, the
Commonwealth must prove the following three elements beyond a reasonable
doubt: First that there was an unlawful
killing; second, that the homicide was
committed in the course of a felony or attempted felony, and, as I say, robbery
is such a felony; third, that, under the
circumstances of this case, the defendant committed the felony or attempted
felony with a conscious disregard for human life. To summarize, the felony murder rule enables
you, the jury, to find the existence of murder by substituting the attempt to
commit this specific felony in this case, that is the Commonwealth claims is
robbery, with malice aforethought necessary for the commission or murder. In order to apply the felony murder rule,
however, the Commonwealth must have convinced you beyond a reasonable doubt, 1,
that a homicide, that is an unlawful killing, was completed; 2, that the homicide was committed in the
commission or attempted commission of a felony by the defendant; and 3, that the commission of this felony
indicates that there was a [417
Mass. 70] conscious disregard for
the risk‑‑of the risk to human life created by the defendant's
actions.
"If after considering all the
evidence you find the Commonwealth has proven beyond a reasonable doubt each
and every one of the three elements that I have just now defined, then the
felony murder rule applies, and you must find the defendant guilty of
murder. If, however, after your
consideration of all the evidence you find that the Commonwealth has not proven
any one of those three elements beyond a reasonable doubt, you must find the
defendant not guilty of murder, at least under the felony murder
principle."
The defendant correctly says that the
judge failed to instruct the jury that the defendant could be guilty of armed
robbery only if he knew that Cirillo was armed.
The defendant did not object to the omission or otherwise preserve his
appellate rights at trial, however.
Therefore, the question before us is whether, on account of the
omission, there is a substantial likelihood of a miscarriage of justice. G.L. c. 278, § 33E. Commonwealth v. Wright, supra
411 Mass. at 681, 584 N.E.2d 621. We
conclude that there is no such likelihood because the judge instructed the jury
that, in order to find the defendant guilty of murder in the first degree by
application of the felony‑murder rule with armed or unarmed robbery as
the underlying felony, they would have to find beyond a reasonable doubt that
the defendant consciously disregarded the risk to Holland's life created by his
conduct. The judge correctly told the
jury that for them to find the defendant guilty of murder in the first degree
on a joint venture felony‑murder theory with unarmed robbery as the
underlying felony, they would have to find that the defendant consciously
disregarded the risk to Holland's life. The judge would have been correct if he also
had instructed the jury that, if they were to find armed robbery as the
underlying felony and that the defendant knew that Cirillo was armed, they
would not need to address the question whether the defendant consciously
disregarded the risk to Holland's life because armed robbery inherently[417 Mass. 71] involves a conscious
disregard of the risk to human life. Commonwealth v. Watson, 388 Mass. 536,
544, 447 N.E.2d 1182 (1983). The judge's
instruction that armed robbery can be the basis of felony‑murder only if
the defendant consciously disregarded the risk to Holland's life was more
favorable to the defendant than the law required. The judge's instructions did not result in a
substantial likelihood of a miscarriage of justice.
The defendant moved in the Superior Court
for a new trial based on the newly available testimony of Stephen Fountaine,
who had been a fugitive from justice at the time of the trial. The substance of Fountaine's anticipated
testimony was that Fountaine heard Cirillo say that the defendant was not with
him when he killed Holland. Fountaine so
informed the State police. For purposes
of this decision, we shall assume that newly "available" evidence is
like newly "discovered" evidence and is subject to the same
rules. The defendant does not urge us to
do otherwise.
[7][8] The motion for a new trial was
considered by the judge who had presided at the trial. In his memorandum of decision denying the
motion, the judge observed that, at the trial, "the Commonwealth presented
direct and circumstantial evidence to show that the defendant and co‑defendant
[Cirillo] had opportunity, motive and means to commit the crime. The defendant and a co‑defendant were
observed with the victim prior to his death.
The co‑defendant testified as to the manner and means of the
death. A witness observed two men whose
characteristics matched those of the defendant and co‑defendant abandon
the victim's truck. And finally the
defendant volunteered a false alibi at the time of his arrest and the second
alibi offered by the defendant at trial was rebutted by the
Commonwealth." Treating the
defendant's motion as though it were based on newly discovered evidence, as we
do, the judge correctly stated that "[a] defendant seeking a new trial on
the ground of newly discovered evidence must establish both that the evidence
is newly discovered and that it casts a real doubt on the justice of the
conviction. Commonwealth v. Grace, 397 Mass. 303 [,
305, 491 N.E.2d 246] (1986) citing [417
Mass. 72] Commonwealth v. Ortiz, 393 Mass. 523 [, 537‑538, 471 N.E.2d
1321] (1984).... Fountaine's testimony
is cumulative and like that of John Cuoco, impeaches the credibility of
Cirillo, the co‑defendant. Newly
discovered evidence that tends merely to impeach the testimony of a witness
does not ordinarily warrant a new trial. Commonwealth v. Ortiz, [supra ].
Based on the evidence presented, the one distinction between Fountaine's
testimony and that of the other inmate's [John Cuoco] would probably not have
been a real factor in the jury deliberations." We agree with the judge's ruling and
reasoning.
After the parties had filed their
appellate briefs in this court, the defendant filed here another motion for a
new trial stating as grounds that, at the trial, the Commonwealth "failed
to disclose exculpatory, material evidence in violation of an absolute
obligation to disclose. This evidence
was the Notice of Alibi filed by the Co‑Defendant John Cirillo.... This material evidence flatly contradicted
the testimony of the Commonwealth's principal witness against him.... Without this evidence, Mr. Simmons lost a
vital opportunity to cross examine and impeach the commonwealth's principal
witness against him.... The Commonwealth's
failure to disclose Cirillo's Notice of Alibi infected Mr. Simmons' first trial
with prejudicial, constitutional error because it denied him due process of
law." A single justice of this
court denied the defendant's motion without a hearing, and denied a motion to
reconsider.
The notice of alibi to which the motion
referred was filed in connection with the case in which the Commonwealth
charged Cirillo with Holland's murder.
Mass.R.Crim.P. 14(b)(1), 378 Mass. 874 (1979). In that notice, which Cirillo's counsel, but
not Cirillo personally, signed, Cirillo stated that "he was at the
following locations during the period set forth in the Commonwealth's Bill of
Particulars: 1. From 11:00 P.M. August 25th, 1987 until
2:00 A.M. August 26th, 1987, inside the Frontier Lounge, Springfield,
Massachusetts. 2. From 2:00 A.M. until
approximately 3:00 A.M. in the parking lot outside the Frontier Lounge, 19
Pearl Street, Springfield, Massachusetts.
3. From approximately 3:00 A.M. until 11:30 [417 Mass. 73] A.M. at
99 Byer's Street, Springfield, Massachusetts.
The Defendant reserves the right to call the following witnesses to
establish his alibi: 1. David Rogers No
known address 2. Patrick (no known last name) No known address 3. Raymond Pagan
No known address 4. Hajal Sander No known address 5. Jason Winslow No known
address"
[9][10] The "degree of prejudice or
possible prejudice that warrants or requires the granting of a new trial
because the prosecution improperly failed to deliver exculpatory evidence to
the defense" depends on whether "the prosecution has denied the defendant
specifically requested exculpatory evidence." Commonwealth v. Tucceri,
412 Mass. 401, 412, 589 N.E.2d 1216 (1992).
If the prosecution has denied the defendant specifically requested
exculpatory evidence, "a defendant need only demonstrate that a substantial
basis exists for claiming prejudice from the nondisclosure." Id. In
Tucceri, we also discussed the standard to be applied "when the
defendant has made no request or ... has made only a general request for
exculpatory evidence." Id. at 412‑415, 589 N.E.2d
1216. However, the defendant in Tucceri was not charged as here with
murder in the first degree, and therefore our decision was not controlled, as
it is here, by G.L. c. 278, § 33E. Where
the prosecution denies the defendant exculpatory evidence but the defendant has
not requested it or has made only a general request, this court will order a
new trial or reduction of the verdict whenever the court concludes that there
has been a substantial likelihood of a miscarriage of justice. G.L. c. 278, § 33E. Commonwealth v. Wright, supra,
411 Mass. at 681, 584 N.E.2d 621.
[11][12] On March 20, 1989, Cirillo
pleaded guilty to murder in the second degree.
Counsel for the defendant here (Simmons) requested that the prosecution
provide him with a copy of a statement that counsel understood Cirillo had
given to the district attorney before the plea hearing, and filed a motion to
require that the statement be provided.
It appears that, contrary to the belief of defendant's counsel, Cirillo
did not give the district attorney a written statement. A judge in the Superior Court denied the
defendant's motion. In his brief filed
with the single justice in support of his second motion[417 Mass. 74] for a new trial, the defendant argued that
his request for the statement counsel had understood Cirillo had given to the
district attorney before the plea hearing qualifies as a "specific
request" for the notice of alibi that the defendant says he was unaware of
until after the case was entered in this court.
The defendant argues that he is entitled to the standard of review
applicable when the prosecution denies a defendant specifically requested
exculpatory evidence. See Commonwealth v. Tucceri, supra 412
Mass. at 412, 589 N.E.2d 1216. A
request is specific if it "provide [s] the Commonwealth with notice of the
defendant['s] interest in a particular piece of evidence."
Commonwealth v. Wilson, 381 Mass. 90, 109, 407 N.E.2d 1229
(1980). We reject the defendant's
argument. He did not specifically
request Cirillo's notice of alibi.
[13] We also reject the defendant's
contention that the Commonwealth's failure to provide him the notice of alibi,
even if not specifically requested, was so prejudicial to the defense that
justice requires a new trial. In our view,
it is highly unlikely that, if the jury had heard evidence of Cirillo's notice
of alibi (even if it be attributed to him and not just his lawyer), the jury
would have concluded that Cirillo, who pleaded guilty to Holland's murder, was
not at the scene and was not with the defendant when Holland was killed. The Commonwealth's case was strong, and it
would have been strong if Cirillo's notice of alibi had been made known to the
jury. We are satisfied that there is no
substantial likelihood of a miscarriage of justice.
Judgment
affirmed.
Denial
of motions for postconviction relief affirmed.
(FN1.) The single justice denied the motion
for a new trial after the full court had referred it to him for disposition
pursuant to G.L. c. 278, § 33E.
Frequently, this court will transfer to the trial court a motion for a
new trial filed with this court during the pendency of an appeal. However, when the motion does not raise a
question of fact or otherwise require the participation of the trial court it
is proper for the motion to be disposed of by the single justice after referral
by the full court. G.L. c. 278, § 33E.