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11/09/77 COMMONWEALTH v. ROBERT SCHLIEFF

November 9, 1977

COMMONWEALTH
v.
ROBERT SCHLIEFF



Bristol. Indictments found and returned in the Superior Court on June 11, 1974. The cases were tried before Prince, J., and motions for a new trial were heard by him.

Hale, C.j., Keville, & Grant, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Assistance of counsel. Search and Seizure. Identification. Constitutional Law, Assistance of counsel, Identification.

The opinion of the court was delivered by: Keville

At a criminal trial, the defense counsel's failure to file pre-trial motions to suppress evidence seized from the defendant, an admission by the defendant, and in-court identifications of the defendant by the victims and his failure to use the probation and criminal records of one of the victims to impeach his testimony did not constitute ineffective assistance of counsel where it appeared that the pre-trial motions would have been unlikely to succeed and where the value of the records for impeachment purposes was questionable and their admissibility doubtful. [667-672]

At the trial of several indictments, the defendant was not prejudiced by the Judge's failure to dismiss the indictment for mayhem where no evidence was admitted on that indictment which could not also have been admitted on the indictment for assault and battery with a dangerous weapon. [672]

The defendant appeals pursuant to G. L. c. 278, §§ 33A-33G, from convictions on six indictments including those for armed burglary at the dwelling of Mr. and Mrs. Kenneth St. George and assaults on their persons.

When at about 10:00 p.m. on January 17, 1974, Mrs. St. George opened the rear door of their dwelling in the town of Easton, she was confronted by two men wearing black leather jackets, hats pulled down to their eyebrows and carrying handguns. She ran screaming into the living room where her husband was asleep on the couch. That area was well lighted. The men followed her there and ordered the St. Georges to get on the floor face down. Mrs. St. George responded immediately, but Mr. St. George did not comply until ordered to do so a second time.

Once on the floor, Mr. St. George, for a period of three or four minutes, kept his face to one side in such a position as to be able to observe the intruders while he responded to the questions of one of them, later identified as the defendant Schlieff, concerning the location of money, "dope" and a firearm. The assailant who had asked the questions kicked Mr. St. George on the face and on other parts of his body with resulting serious injury to one of his eyes. The intruders remained in the house for about ten minutes and then fled.

Shortly after the invasion of their home, the St. Georges, upon being shown a group of photographs by the police, selected one of them as being that of a man who they thought looked like one of their assailants. However, when they viewed the subject in person, they concluded that they had been mistaken in their photographic identifications. Subsequently the St. Georges viewed a large number of photographs on several occasions and identified Schlieff's codefendant. *fn1

On March 24, 1974, approximately two months after the assaults, the St. Georges each selected a photograph of Schlieff from an array of eleven shown to them at a police station. Early in April, following those photographic identifications, the St. Georges were called by the police to a District Court. While there, they identified Schlieff as he was standing among a group of about ten persons in the hallway of the court house.

About a week following the St. Georges' identification of Schlieff's photograph, the police went to his apartment with a warrant for his arrest. There was evidence that after Schlieff was informed that he was being placed under arrest and apprised of his constitutional rights, he admitted to a police officer that a black leather jacket, which the police observed on the back of a chair in the room, belonged to him.

The defendant claims that he is entitled to a new trial primarily because his counsel was inadequate. In support of that contention he argues counsel's failure to file pretrial motions to suppress (a) the jacket allegedly worn by the defendant during the commission of these crimes, (b) an admission by the defendant to the police of his ownership of the jacket, and (c) in-court identifications of the defendant by the victims. The defendant also points to trial counsel's failure to request probation and criminal records of Mr. St. George as further evidence of ineffective assistance of counsel.

The standard for evaluation of effectiveness of counsel is clear: "hat is required in the actual process of decision of claims of ineffective assistance of counsel, and what our own decisions have sought to afford, is a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Cross, 4 Mass. App. Ct. 54, 56-57 (1976), and cases cited. The question of effectiveness of counsel is a practical, not a theoretical, one. Failure to file pre-trial motions to suppress does not, ...


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