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July 21, 1977


Suffolk. Indictment found and returned in the Superior Court on October 16, 1970. A motion for a new trial was heard by Leen, J.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.


Practice, Criminal, Assistance of counsel, Disclosure of evidence, Probable cause hearing. Constitutional Law, Assistance of counsel.

The opinion of the court was delivered by: Kaplan

A Judge did not abuse his discretion in denying a criminal defendant's motion for a new trial on the ground of ineffective assistance of counsel. [111-115]

This is the second appearance of this case in our court. Having been convicted in Superior Court in April, 1971, of murder in the first degree (with a jury recommendation against the death penalty), the defendant Satterfield took his appeal here pursuant to G. L. c. 278, §§ 33A-33G. He contended, among other things, that he had not been properly represented by trial counsel, and included in the relief sought was a prayer for mitigation under § 33E. We affirmed the judgment and declined to act under § 33E. Commonwealth v. Satterfield, 362 Mass. 78 (1972). *fn1 In August, 1974, the defendant moved in the Superior Court for a new trial, again raising questions about his legal representation at the trial. The Judge -- the same Judge who had presided at the trial -- took evidence and heard argument in December, 1974, and made findings on the basis of which he denied the motion in February, 1975. This is an appeal from the denial. *fn2

While expressing the view that much of the new trial motion repeated matter that had been before this court on the appeal from the conviction, and had been already ruled on here, the Judge undertook a reexamination of the trial transcript in connection with his appraisal of the motion. We have done the same, and reach the same negative Conclusion.

First, as to the substance of the trial. Around 6 A.M., August 19, 1970, Richard Libby was killed in front of a lodging house at 617 Massachusetts Avenue, Boston, as a result of blows to his head, face, and neck, which caused a massive aspiration of blood. The principal witnesses for the prosecution were one Nick Cook, testifying as an eyewitness to the homicide; the medical examiner; a chemist, dealing with the bloodstains; and one of the police officers who first arrived on the scene. Cook said he saw the defendant stamp repeatedly with his booted feet on the victim who was lying prone on the sidewalk; at one point the defendant picked up a key ring from the sidewalk and attempted but failed to fit a key to a car parked at the curb nearby, and then returned to attack the victim again with his feet. The defendant remained near the scene and, speaking to an arriving police officer, said he had called the police thinking the victim had been hit by a car. But when the defendant took the stand in his own defense (he was the only defense witness), he admitted his own involvement but said that, being very drunk from intermittent drinking since the afternoon of the previous day, he had stumbled into the victim outside the lodging house, and in the altercation that followed he had kicked him defensively. The defendant's extenuating story -- including his claims that he was intoxicated to the point of being incapable of deliberate premeditation, and that he acted or commenced to act in self-defense (he was twenty-eight years old, the victim fifty-seven) -- emerges unimpressively from the transcript. Following instructions that put all the alternatives to the jury as to murder and manslaughter, the jury returned the verdict mentioned, which may have been based on a finding of murder "with extreme atrocity or cruelty."

Our reading of the trial transcript confirms the Judge's view, expressed at the trial and again in the findings on the new trial motion, that counsel for the defendant in his general conduct of the case in court gave competent service to his client. He made a full battery of pre-trial motions. He had a command of the facts and examined the witnesses with care. His interactions with opposing counsel and the court were those of a lawyer of some experience. It may be that an examiner with the skill of a Patrick Hastings could have made better progress on cross-examination, but one concludes that the basic trouble from the defense standpoint was weaknesses in the facts rather than any inadequacy of counsel.

To turn to particular criticisms, there were serious strains in the defendant's relation with counsel, and we must see whether any ground exists here for a new trial.

Just before the jury empanelment, counsel found it necessary to inform the Judge that he had advised the defendant to accept a "plea bargain" of guilty of manslaughter but the defendant had refused the advice. *fn3 The following morning, at an interval in the questioning of members of the venire, counsel said he wanted to state for the record that his client was not listening to him and was insisting that the case be conducted his way. To which the defendant answered that counsel was "mad" at him because he had not gone along with the manslaughter plea. The Judge remarked that the defendant would do better to consider the advice of counsel but could insist that a given course be followed even against that advice.

Next day, after damaging direct testimony by Cook, the Judge, referring to the earlier exchange, inquired whether the defendant would now prefer to question the witness himself, with counsel's assistance. The defendant said he was content to have counsel do the questioning; and the Judge added that the defendant could make suggestions to counsel. By the close of the day, Cook had been cross-examined, and much of the rest of the weight of the Commonwealth's case had been put in.

By this time counsel had become so concerned about the defendant's fractiousness that he procured a psychiatric examination to be made of the defendant before the next session of court. The psychiatrist reported that the defendant remained rational and able to stand trial but wanted to "fire" his counsel.

Hearing the report, the defendant burst out with a demand for different counsel, saying that he had given names to counsel and counsel had refused to follow them up; that he didn't know who was paying counsel, and counsel said he wasn't interested in the case because he wasn't earning enough; that counsel was competent but didn't believe him and wasn't doing anything for him. Responding, counsel said in substance that he was not court-appointed but had in fact received no compensation, *fn4 and that he had searched for persons named by the defendant but without result. Speaking to the defendant's demand for fresh counsel, the Judge said that was not feasible in midtrial. The defendant could ...

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