Suffolk. Indictments found and returned in the Superior Court on June 13, 1973. The cases were tried before Roy, J., and a motion for a new trial was heard by him.
Hennessey, C.j., Quirico, Braucher, Wilkins, & Liacos, JJ.
Practice, Criminal, Assistance of counsel, Criminal records of witness. Constitutional Law, Assistance of counsel. Conflict of Interest.
The opinion of the court was delivered by: Wilkins
Although a decision by defense counsel at a murder trial to call a witness who had made a detailed statement to the police implicating the defendant resulted in the admission of the statement as a prior inconsistent statement, the decision was not so unreasonable as to deprive the defendant of effective assistance of counsel. [727-730]
The defendant failed to demonstrate a conflict of interest or prejudice resulting from his defense counsel's previous representation of another person at a probable cause hearing concerning the same crime. [730-731]
There was no error in the denial of the defendant's pre-trial motion that the Commonwealth be ordered to produce the criminal records of witnesses for the Commonwealth where the defendant failed to show that he was unfairly inhibited from obtaining the criminal record of any prosecution witness. [732-733]
The defendant was convicted of murder in the first degree and armed robbery. Represented by new counsel, he appeals from his convictions and from the denial of his motion for a new trial. These appeals were argued together here.
He argues that he was denied the effective assistance of counsel in violation of his constitutional rights, because his trial counsel's representation was grossly inadequate and because his trial counsel was in a position of conflict of interest. He argues additionally that he was improperly denied access, for impeachment purposes, to criminal records of certain prosecution witnesses. We affirm the judgments.
In order to understand the issues presented, a detailed description of much of the evidence presented at the trial is required. An employee of the Massachusetts Bay Transportation Authority (MBTA) was assaulted and robbed in the early morning of November 27, 1972, in the Essex Street subway station in Boston. The victim, found after a silent alarm signal had been set off, had been struck with a blunt object. Cash boxes taken from the station area were found up the tracks, broken open. The victim died at Boston City Hospital early in the morning of November 28, 1972.
One Wyatt Moore testified for the prosecution that in December, 1972, in the kitchen of his mother's house in Dorchester and in the presence of his wife, his sister Lynne, and one James Gill, he had a conversation with the defendant. Moore testified that the defendant said that he had gone down to the Essex Street subway station with Harry and Warren Ambers to "take off" the cash boxes. One of the three used a board to hit an MBTA attendant, who was on duty, and, after a fight, knocked him out. They took his gold watch and the cash boxes, went up the tracks, and ripped the boxes open. Moore testified further that the defendant said that, in ripping the boxes open, he cut his hand which bled. *fn1
On cross-examination, Moore testified that at the end of 1970 he had tried to hit the defendant with part of a bicycle. Moore also disclosed a substantial criminal past. He was not certain whether two of his sisters other than Lynne were present when the defendant told of the incident in the Essex Street subway station. Moore admitted that he had discussed the incident with Harry Ambers, who was convicted of the same crimes with which the defendant was charged, and that he had told Harry Ambers that he felt that the defendant had set him up to be arrested on an unrelated charge. He denied, however, that he had told Ambers that he was going to make sure the defendant "would get hit with something."
Moore's wife testified for the prosecution that in December, 1972, in the kitchen of her mother-in-law's house, she heard the defendant say that he and the Ambers brothers hit a man in the Essex Street subway station and took money from the turnstyles. She said that her husband, Moore's sister Susan, and James Gill were present. On cross-examination she testified that she was not certain whether Moore's sister Robin was present but that Lynne Moore was. *fn2 Lynne testified that she heard the conversation in the kitchen and that the defendant described the incident in the Essex Street subway station.
The defendant, testifying on his own behalf, denied involvement in the crimes. He testified that in 1970 Moore once hit him with the fork that holds a bicycle wheel. He recalled that in December, 1972, he sat at a table in the Moore house with Moore, Gill, and Moore's sisters Sylvia and Susan. The conversation was general. He testified that Moore had threatened him in February, 1973, and that Moore had told him that he was going to "jam" him, that is, do something to hurt him. ...