Argued: October 6, 2014.
Indictments found and returned in the Superior Court Department on October 23, 1991.
Following review by this court, 420 Mass. 263, 649 N.E.2d 1079 (1995), a motion for a new trial, filed on January 6, 2012, was considered by Patrick F. Brady, J.
A request for leave to appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk.
Dennis Shedd for the defendant.
Paul B. Linn, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[23 N.E.3d 64] Cordy, J.
The defendant's conviction of murder in the first degree was affirmed by this court in 1995. See Commonwealth v. Valentin, 420 Mass. 263, 649 N.E.2d 1079 (1995). In 2012, he filed a motion for a new trial, which was denied. The case is now before us pursuant
to an order of a single justice of the county court allowing, in part, the defendant' s application for leave to appeal from that denial under G. L. c. 278, § 33E.
We conclude that trial counsel did not render ineffective assistance in failing to impeach a witness as to one of his statements, where counsel's decision was not manifestly unreasonable and, in any event, did not so impact the outcome of the trial as to create a substantial risk of a miscarriage of justice. We also conclude that the substitution of trial counsel's partner to stand in for her during jury deliberations was not one of structural error warranting a new trial absent a showing of prejudice. Further, considering the claim as one of [23 N.E.3d 65] ineffective assistance of counsel, we conclude that the defendant did not receive constitutionally deficient assistance or suffer any appreciable prejudice as a result of the substitution. Accordingly, the defendant's motion for new trial was properly denied.
In October, 1991, the defendant was indicted on charges of murder in the first degree, G. L. c. 265, § 1, for the killing of Timothy Bond in July, 1991, and for assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A ( b ).
1. Evidence at trial.
The facts of this case are set forth in our decision in Valentin, 420 Mass. at 265-266. In summary, in July, 1991, Timothy Bond stole cocaine from Angel Ruidiaz, who was selling drugs on behalf of the defendant's brother, Simon. Though Ruidiaz paid Simon for the stolen drugs, Simon stated that he was " still going to get" Bond.
Later that month, Bond went to Metcalf Court in the Jamaica Plain section of Boston with his friend Kenneth Stokes and joined a group of others who were sitting on a wall, talking and drinking. Shortly thereafter, Simon and the defendant approached Bond from behind and Simon shot Bond in the back of the head. Bond then fell to the ground and Simon shot him once more in the head. Stokes testified that the defendant subsequently stomped on the victim's head, saying, " Die, motherfucker," and then fled with Simon. While running away, the defendant said to Simon, " Man, put the gun away, the police are coming."
At trial, the defendant's primary defense was alibi. He called three witnesses to testify that he was elsewhere playing dominoes at the time of the shooting. The Commonwealth called four witnesses (including Stokes) who were present at the shooting. Each of them testified that the defendant " kicked" or " stomped" on Bond's head after Simon fired the second shot. Only Stokes
testified that the defendant said, " Die, motherfucker," when he did so. The defense cast doubt on the credibility of these witnesses, two of whom acknowledged that when they spoke to the police shortly after the incident, they did not say that the defendant had stomped on Bond. Stokes was extensively cross-examined but was not questioned about his initial failure to tell the police about the defendant's " Die, motherfucker" statement.
2. Role of trial counsel's law partner.
On the second day of jury deliberations, trial counsel, Frances Robinson, asked permission from the judge to have her law partner stand in for her. Her partner had not done any work on the case, but had discussed it with Robinson. The judge granted this request. The judge did not seek the defendant's consent to the substitution on the record.
While substitute counsel was standing in, the jury asked to be reinstructed on both joint venture and premeditation. With substitute counsel present, the judge provided supplemental instructions on both topics. After the judge provided these reinstructions, substitute counsel asked to preserve any objections that Robinson had made previously to the joint venture and premeditation instructions in the main jury charge. The judge assured substitute counsel that he was not waiving any of these objections. Later that afternoon the jury found the defendant guilty as a joint venturer in premeditated murder, and not guilty of assault and battery by means of a dangerous weapon.
[23 N.E.3d 66] In January, 2012, the defendant filed a motion for a new trial, which was denied without a hearing on February 6, 2013. Later that month, the defendant filed a petition for leave to appeal under G. L. c. 278, § 33E, and on August 1, 2013, a single justice allowed the petition as to two of the presented issues: first, whether the defendant's trial counsel rendered ineffective assistance by failing to impeach Stokes's testimony about the defendant's statement made at the scene of the murder; and second, whether the defendant was deprived of counsel when his trial counsel's law partner stood in during jury deliberations.
As this case comes to us on appeal from the denial of a motion for a new trial and alleges errors that are grounded in the record that was before this court in its plenary review, we review it under the standard of " substantial risk of a miscarriage of justice." Commonwe ...