supposed error in Massachusetts

1977Many of our opinions on this subject start with the following *529 statement of the basic applicable rule in Zeitlin v. Zeitlin, 202 Mass. 205, 207 (1909): "It is in the interests of justice that, after a trial and final judgment in a case, the matters heard and adjudicated shall not be opened for a further hearing because of a supposed error in the determination of facts by the tribunal that heard the evidence.

1977Many of our opinions on this subject start with the fol lowing statement of the basic applicable rule in Zeitlin v. Zeitlin, 202 Mass. 205, 207 (1909): “It is in the interests of justice that, after a trial and final judgment in a case, the matters heard and adjudicated shall not be opened for a further hearing because of a supposed error in the determination of facts by the tribunal that heard the evidence.

1941The latter instance, as well as the former, falls within the statement in Zeitlin v. Zeitlin, 202 Mass. 205 , at page 207, that “It is in the interests of justice that, after a trial and final judgment in a case, the matters heard and adjudicated shall not be opened for a further hearing because of a supposed error in the determination of facts by the tribunal that heard the evidence.” In Renwick v. Macomber, 233 Mass. 530, 534 , this court said, “The suppression or concealment of material facts as distinguished from the introduction of false and fabricated testimony does not, and in principle

1938See Renwick v. Macomber, 233 Mass. 530, 534 .

2026The defendant next argues that the judge erred by declining to instruct the jury on the possibility that his touching the victim was an accident, and the supposed error was compounded by the prosecutor's closing argument. 6 "Where the evidence fairly raises the possibility of accident, the defendant is entitled, if he requests, to have the judge instruct the jury that the Commonwealth has the burden of proving beyond a reasonable doubt that the [act] was not accidental." Commonwealth v. Jewett, 442 Mass. 356, 370 (2004).

2006The defendant attempts to overcome this reality by reliance on a statement taken out of context from the distinguishable case of Jacobson v. United States, 503 U.S. 540, 549 (1992), which he claims established the supposed principle that the Commonwealth must prove beyond a reasonable doubt that “the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” We are unpersuaded.

2006The literalness that the defendant ascribes to those words was clearly modified by the Jacobson Court’s example and statement (made immediately after the quoted passage) that a defendant’s “ready commission of the criminal act,” after being offered the opportunity to sell drugs and accepting the offer, “amply demonstrates the defendant’s predisposition.” Id. at 549-550 .

1996Nor did counsel provide the requisite precision and clarity to enable the judge “to understand, let alone correct, the supposed error.” Coupounas v. Madden, 401 Mass. 125, 130 (1987).

1987Counsel’s brief on appeal does not dispute this. 9 For a pro se defendant, as well as for others, a failure to object imports the standard question whether the supposed error created a “substantial risk of miscarriage of justice,” see Commonwealth v. Henley, 1 Mass. App. Ct. 564, 569 (1973), and here the answer is negative.

1987Co., 338 Mass. 67, 72 (1958).

1985See Betty Corp. v. Commonwealth, 354 Mass. 312, 321 (1968).

1976Stephens v. Lampron, 308 Mass. 50, 52-53 (1941).

1975See, e.g., Avance v. Mills, 495 P. 2d 828 (Okla.

1942See Chapman v. Chap man, 224 Mass. 427, 434 .