unconstitutional presumption in Massachusetts

1992The test of whether the challenged portion of the instructions created an impermissible presumption is this: “ Tf a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in *248 the context of the charge as a whole,’ to see whether ‘a reasonable juror could . . . have considered the charge to have created an unconstitutional presumption.’ ” Commonwealth v. Blake, 409 Mass. 146, 151 (1991), quo

1991The defendant claims that, by instructing the jury that one of the forms of malice required only general intent, the judge created a presumption of malice for both the murder and the arson charge. 3 To determine whether a jury charge has created an impermissible presumption, we must apply the following test: “If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the char

1997Thus, to say that an instruction to apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence [and instructions] considered by those jurors independently of the presumption.” Id. at 403-404 . 3.

1991Thus, to say that an instruction to apply an unconstitutional presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption.” Id. at 1893 .

2023See also Estelle v. McGuire, 502 U.S. 62 , 72 n.4 (1991) (describing Boyde as "considering and rejecting standards that required examination of either what a reasonable juror 'could' have done or 'would' have done"). 17 juror from applying an unconstitutional presumption" (citation omitted).

1995See Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973) (“instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole”); 9 Commonwealth v. Repoza, 400 Mass. 516, 519 , cert. denied, 484 U.S. 935 (1987) (“jury instructions are not to be viewed in isolation but rather in the context of the charge as a whole”). 10 Reviewing the whole charge, including the judge’s emphatic and repeated statements that only the Commonwealth — and never the defendant — bore any burden, we believe that the jur

2022Our analysis of the question is informed by the interplay of a series of decisions of the Supreme Judicial Court and related habeas decisions of the United States Court of Appeals for the First Circuit (First Circuit), considering instructions very similar to the one at issue here: Commonwealth v. Hill, 387 Mass. 619, 624 (1982) (Hill I); Commonwealth v. Libby, 405 Mass. 231, 234-235 (1989) (Libby I); Hill, 927 F.2d at 648 (Hill II); Commonwealth v. Libby, 411 Mass. 177, 181-182 (1991) (Libby II); and Libby v. Duval, 19 F.3d 733, 735 (1st Cir.), cert. denied, 513 U.S. 927 (1994) (Libby III).

2022The First Circuit, in contrast, has determined that reasonable jurors "could easily have viewed such an instruction as mandatory" (quotation and citation omitted), Hill II, 927 F.2d at 651 , and indeed "that it was reasonably likely that the jurors construed" such language as creating a mandatory presumption.

2001It is necessary, then, to consider “the reasonable impression that a jury would have from the judge’s instructions as to their fact-finding obligations.” Commonwealth v. Doherty, 411 Mass. 95, 105 (1991).

1992We must, in short, assess “the reasonable impression that a jury would have from the judge’s instructions as to their fact-finding obligations. . . .” Commonwealth v. Doherty, 411 Mass. 95, 105 (1991).

2001Specifically, the defendant claims that the jury charge concerning intent created a presumption that relieved the Commonwealth of proving that he intended “to fully commit the crime of stalking.” “The test of whether the challenged portion of the instructions created an impermissible presumption is this: ‘If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge a

1992The test of whether the challenged portion of the instructions created an impermissible presumption is this: “ Tf a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in *248 the context of the charge as a whole,’ to see whether ‘a reasonable juror could . . . have considered the charge to have created an unconstitutional presumption.’ ” Commonwealth v. Blake, 409 Mass. 146, 151 (1991), quo

1995See Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973) (“instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole”); 9 Commonwealth v. Repoza, 400 Mass. 516, 519 , cert. denied, 484 U.S. 935 (1987) (“jury instructions are not to be viewed in isolation but rather in the context of the charge as a whole”). 10 Reviewing the whole charge, including the judge’s emphatic and repeated statements that only the Commonwealth — and never the defendant — bore any burden, we believe that the jur

1989See Francis v. Franklin, 471 U.S. 307, 325 (1985); Sandstrom v. Montana, 442 U.S. 510, 523 (1979); Commonwealth v. Repoza, 400 Mass. 516, 517-518 (1987).

1995See Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973) (“instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole”); 9 Commonwealth v. Repoza, 400 Mass. 516, 519 , cert. denied, 484 U.S. 935 (1987) (“jury instructions are not to be viewed in isolation but rather in the context of the charge as a whole”). 10 Reviewing the whole charge, including the judge’s emphatic and repeated statements that only the Commonwealth — and never the defendant — bore any burden, we believe that the jur

1994Cupp v. Naughten, 414 U.S. 141, 147 (1973).” (Emphasis added.) Francis v. Franklin, supra at 315 .

2022Our analysis of the question is informed by the interplay of a series of decisions of the Supreme Judicial Court and related habeas decisions of the United States Court of Appeals for the First Circuit (First Circuit), considering instructions very similar to the one at issue here: Commonwealth v. Hill, 387 Mass. 619, 624 (1982) (Hill I); Commonwealth v. Libby, 405 Mass. 231, 234-235 (1989) (Libby I); Hill, 927 F.2d at 648 (Hill II); Commonwealth v. Libby, 411 Mass. 177, 181-182 (1991) (Libby II); and Libby v. Duval, 19 F.3d 733, 735 (1st Cir.), cert. denied, 513 U.S. 927 (1994) (Libby III).

1991L. c. 278, § 33E, nor an unconstitutional presumption dictated to the jury [by this instruction].” Commonwealth v. Libby, supra at 235 .

1989See Francis v. Franklin, 471 U.S. 307, 325 (1985); Sandstrom v. Montana, 442 U.S. 510, 523 (1979); Commonwealth v. Repoza, 400 Mass. 516, 517-518 (1987).

1986Sandstrom, supra at 514 .

2023See Commonwealth v. Mathews, 450 Mass. 858, 871 (2008) (discounting dicta as precedent).

2022Our analysis of the question is informed by the interplay of a series of decisions of the Supreme Judicial Court and related habeas decisions of the United States Court of Appeals for the First Circuit (First Circuit), considering instructions very similar to the one at issue here: Commonwealth v. Hill, 387 Mass. 619, 624 (1982) (Hill I); Commonwealth v. Libby, 405 Mass. 231, 234-235 (1989) (Libby I); Hill, 927 F.2d at 648 (Hill II); Commonwealth v. Libby, 411 Mass. 177, 181-182 (1991) (Libby II); and Libby v. Duval, 19 F.3d 733, 735 (1st Cir.), cert. denied, 513 U.S. 927 (1994) (Libby III).

2022Our analysis of the question is informed by the interplay of a series of decisions of the Supreme Judicial Court and related habeas decisions of the United States Court of Appeals for the First Circuit (First Circuit), considering instructions very similar to the one at issue here: Commonwealth v. Hill, 387 Mass. 619, 624 (1982) (Hill I); Commonwealth v. Libby, 405 Mass. 231, 234-235 (1989) (Libby I); Hill, 927 F.2d at 648 (Hill II); Commonwealth v. Libby, 411 Mass. 177, 181-182 (1991) (Libby II); and Libby v. Duval, 19 F.3d 733, 735 (1st Cir.), cert. denied, 513 U.S. 927 (1994) (Libby III).

2022Our analysis of the question is informed by the interplay of a series of decisions of the Supreme Judicial Court and related habeas decisions of the United States Court of Appeals for the First Circuit (First Circuit), considering instructions very similar to the one at issue here: Commonwealth v. Hill, 387 Mass. 619, 624 (1982) (Hill I); Commonwealth v. Libby, 405 Mass. 231, 234-235 (1989) (Libby I); Hill, 927 F.2d at 648 (Hill II); Commonwealth v. Libby, 411 Mass. 177, 181-182 (1991) (Libby II); and Libby v. Duval, 19 F.3d 733, 735 (1st Cir.), cert. denied, 513 U.S. 927 (1994) (Libby III).

2018See Commonwealth v. Cole , 468 Mass. 294 , 295, 308-309, 10 N.E.3d 1081 (2014). 2 In relevant part, G.

2018See Commonwealth v. Cole , 468 Mass. 294 , 295, 308-309, 10 N.E.3d 1081 (2014). 2 In relevant part, G.

2012As the Supreme Judicial Court has recently affirmed, §7 only “impose(s] the burden of production on the defendant, maintaining the ultimate burden of disproving a properly raised affirmative defense on the prosecution . . . [tjhere is no constitutional deficit in this allocation of the burdens.” Commonwealth v. Jefferson, 461 Mass. 821, 834-35 (2012) (quoting Commonwealth v. Gouse, 461 Mass. 787, 807 (2012)).

2012As the Supreme Judicial Court has recently affirmed, §7 only “impose(s] the burden of production on the defendant, maintaining the ultimate burden of disproving a properly raised affirmative defense on the prosecution . . . [tjhere is no constitutional deficit in this allocation of the burdens.” Commonwealth v. Jefferson, 461 Mass. 821, 834-35 (2012) (quoting Commonwealth v. Gouse, 461 Mass. 787, 807 (2012)).

2001“Reviewing the whole charge, including the judge’s emphatic and repeated statements that only the Commonwealth — and never the defendant — bore any burden, we believe that the jury could not have concluded that the judge’s misstatement created an unconstitutional presumption relieving the State of its burden of persuasion beyond a reasonable doubt pf every element of [the crime charged].” Commonwealth v. Torres, 420 Mass. 479, 490-491 (1995). 15 These instructions do not create a substantial likelihood of a miscarriage of justice. b.

2001Specifically, the defendant claims that the jury charge concerning intent created a presumption that relieved the Commonwealth of proving that he intended “to fully commit the crime of stalking.” “The test of whether the challenged portion of the instructions created an impermissible presumption is this: ‘If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge a

1998Relying on Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 95 (1989), Bennett maintains that conditioning her continued right to receive the fruits of her employment contract with the MBTA on submission to an unconstitutional test constitutes “coercion." Webster v. Motorola, Inc., 418 Mass. 425, 430 (1984), relied upon by the MBTA, is distinguishable since it did not involve employees governed by the terms of a collective bargaining agreement.

1998Relying on Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 95 (1989), Bennett maintains that conditioning her continued right to receive the fruits of her employment contract with the MBTA on submission to an unconstitutional test constitutes “coercion." Webster v. Motorola, Inc., 418 Mass. 425, 430 (1984), relied upon by the MBTA, is distinguishable since it did not involve employees governed by the terms of a collective bargaining agreement.

1995See Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973) (“instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole”); 9 Commonwealth v. Repoza, 400 Mass. 516, 519 , cert. denied, 484 U.S. 935 (1987) (“jury instructions are not to be viewed in isolation but rather in the context of the charge as a whole”). 10 Reviewing the whole charge, including the judge’s emphatic and repeated statements that only the Commonwealth — and never the defendant — bore any burden, we believe that the jur

1990G.L.c. 276, § 1 (1988 ed.). [2] We reaffirmed Toole' s holding in Commonwealth v. Nowells, 390 Mass. 621, 627 (1983), when we stated: "The ownership or possession of a handgun (or a rifle) is not a crime and standing alone creates no probable cause." We noted in Commonwealth v. Rojas, 403 Mass. 483 , 485 n. 3 (1988), citing Nowells , that "possession of a handgun is not per se illegal." [3] Previously in the Jones opinion, supra at 405, we discussed the history and purpose of G.L.c. 278, § 7 (1988 ed.), which provides in part: "A defendant in a criminal prosecution, relying for his justificati

1986See the discussion in the Lipomi case, 385 Mass. at 382-383 . 10 All the contentions advanced in behalf of Perez, however, fall far short of showing abuse of discretion on the part of the trial judge and the single justice in denying preliminary injunctive relief.