Opinion
August 13, 1981.
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.
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.
For the reasons stated in Commonwealth v. Tameleo, supra, and Commonwealth v. Pisa, ante 362 (1981), we conclude that the order of the Superior Court judge denying the defendant's motion for a new trial should be affirmed.
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).
So ordered.