Commonwealth v. Valentin , 470 Mass. 186 ( 2014 )

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SJC-11581
COMMONWEALTH vs. PEDRO VALENTIN.
Suffolk. October 6, 2014. - December 8, 2014.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Constitutional Law, Assistance of counsel. Due Process of Law,
Assistance of counsel. Homicide. Practice, Criminal,
Assistance of counsel, Capital case, New trial. Witness,
Impeachment.
Indictments found and returned in the Superior Court
Department on October 23, 1991.
Following review by this court, 420 Mass. 263 (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.
CORDY, J. The defendant's conviction of murder in the
first degree was affirmed by this court in 1995. See
2
Commonwealth v. Valentin, 420 Mass. 263 (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
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.
Background. 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).
3
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,
4
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.1
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
1
In her affidavit filed in connection with the new trial
motion, trial counsel stated that she discussed the substitution
of counsel with the defendant.
5
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.
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.
Discussion. 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." Commonwealth v. Randolph, 438 Mass.
290, 297 (2002). A substantial risk of a miscarriage of justice
exists when we have a "serious doubt whether the result of the
trial might have been different had the error not been made."
Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.
6
72 (2005), quoting Commonwealth v. LeFave, 430 Mass. 169, 174
(1999). "Errors of this magnitude are extraordinary events and
relief is seldom granted. . . . Such errors are particularly
unlikely where, as here, the defendant's conviction . . . has
undergone the exacting scrutiny of plenary review under § 33E"
(citation omitted). Randolph, supra at 297. However, because
the single justice permitted the defendant leave to appeal from
the denial of his motion for a new trial, we review the issues
raised.
1. Impeachment of Stokes. We turn first to whether the
defendant was denied effective assistance of counsel as a result
of trial counsel not impeaching Stokes's testimony attributing
the statement, "Die, motherfucker," to the defendant. This
testimony had obvious relevance to the defendant's shared intent
with his brother in the murder of Bond. While at trial Stokes
testified that the defendant had said this, he had not told this
to the police who interviewed him immediately after the
shooting, saying then only that the perpetrators "ran away."
In Strickland v. Washington, 466 U.S. 668, 686 (1984),
quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970), the
United States Supreme Court recognized that the right to counsel
in a criminal case is the right to "effective assistance of
counsel." To establish a claim of constitutional
ineffectiveness, the defendant must establish that his
7
attorney's performance fell "below an objective standard of
reasonableness" such that there is a "probability sufficient to
undermine confidence in the outcome." Id. at 688, 694. The
court emphasized that "[j]udicial scrutiny of counsel's
performance must be highly deferential" and that "the distorting
effects of hindsight" must be avoided in evaluating a claim made
after a trial in which attorney's defense strategy was proved
unsuccessful. Id. at 689.
When evaluating a claim of ineffective assistance of
counsel arising under both the Sixth Amendment to the United
States Constitution and art. 12 of the Declaration of Rights of
the Massachusetts Constitution, we ask whether there has been a
"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. Sylvain, 466 Mass. 422, 437 (2013);
Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
Essentially, "[t]he defendant must demonstrate that 'better work
might have accomplished something material for the defense.'"
Acevedo, 446 Mass. at 442, quoting Commonwealth v. Satterfield,
373 Mass. 109, 115 (1977). Moreover, this court has generally
8
shown deference to the strategic decisions made by attorneys,
noting that "[a] strategic or tactical decision by counsel will
not be considered ineffective assistance unless that decision
was 'manifestly unreasonable' when made." Acevedo, supra at
442, quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
See Commonwealth v. Fisher, 433 Mass. 340, 354 (2001);
Commonwealth v. White, 409 Mass. 266, 272 (1991) ("In cases
where tactical or strategic decisions of the defendant's counsel
are at issue, we conduct our review with some deference to avoid
characterizing as unreasonable a defense that was merely
unsuccessful").
Although the failure to pursue an "obviously powerful form
of impeachment" can theoretically rise to the level of
unreasonableness that would constitute ineffective assistance,
we have repeatedly stated that, generally, the failure to
impeach a witness does not, on its own, constitute ineffective
assistance. Fisher, 433 Mass. at 357. See Commonwealth v.
Jenkins, 458 Mass. 791, 805-808 (2011), citing Commonwealth v.
Bart B., 424 Mass. 911, 916 (1997). Ultimately, this is because
the "[i]mpeachment of a witness is, by its very nature, fraught
with a host of strategic considerations to which we will, even
on § 33E review, still show deference" and "it is speculative to
conclude that a different approach to impeachment would likely
have affected the jury's conclusion." Fisher, supra. Here, we
9
cannot say that trial counsel's decision not to impeach Stokes
on the statement in question was "manifestly unreasonable" such
that her assistance was ineffective (citation omitted).
Acevedo, 446 Mass. at 442.
In an affidavit submitted in connection with the
defendant's motion for a new trial, trial counsel explains: "I
did cross examine . . . Stokes extensively on his not having
made statements consistent with the testimony he gave at trial.
In reviewing the transcript, I believe that I did not cross
examine him specifically on not having said '[D]ie,
motherfucker' because I had gotten the point across that his
statement was not the same. I do not believe that further cross
examination on the statement . . . would have helped the defense
because I believe it would have highlighted it." Having focused
considerable attention on proving that the defendant was not
Simon's companion at the incident in pursuit of an alibi
defense, and having impeached the credibility of Stokes based on
various differences between his original statement to police and
his testimony, trial counsel's decision not to impeach Stokes on
whether he heard the defendant make this particular statement,
in order to avoid highlighting it, was not manifestly
unreasonable.
However, the defendant notes that trial counsel did end up
repeating the "Die, motherfucker" statement in her closing in an
10
attempt to discredit it, and did not discuss alibi until the end
of her argument. The manner in which the trial ultimately
played out after Stokes's cross-examination is of little weight
in our analysis of whether it was "manifestly unreasonable" for
counsel to have cross-examined Stokes the way she did at the
time of his testimony. This is particularly so where she
conducted a thorough impeachment of Stokes based on a series of
inconsistent statements, thereby casting doubt on the veracity
of his over-all testimony.
Even if it was unreasonable for counsel not to impeach
Stokes's specific statement, we cannot say that this error led
to a substantial risk of a miscarriage of justice. There is no
question that the "Die, motherfucker" statement was evidence
that went directly to the question whether the defendant had the
necessary mental state to support a finding of guilt as a joint
venturer. The defendant cites to Commonwealth v. Reaves, 434
Mass. 383, 391-392 (2001), arguing that a conviction of murder
in the first degree requires a finding that he had to share the
mental state of "intent to kill and premeditation" with the
principal. He further contends that if Stokes's statement had
been more thoroughly discredited through additional impeachment,
the Commonwealth could not have convinced the jury that the
defendant had the requisite mental state to support his
conviction. We disagree.
11
In Reaves, this court stated that the "jury may infer the
requisite mental state [for a joint venturer] from the
defendant's knowledge of the circumstances and subsequent
participation in the offense." Id. at 392, quoting Commonwealth
v. Longo, 402 Mass. 482, 486 (1988).2 Accordingly, in the
instant case, even though the specific statement was not
impeached, there was substantial additional evidence from which
the jury could have inferred that the defendant shared Simon's
intent to kill the victim, including evidence that the defendant
(1) knew that Simon was angry at the victim over a drug deal
gone bad; (2) knew that Simon had a gun; (3) appeared to be
acting as a lookout before the crime; (4) arrived with and stood
with the shooter during the commission of the crime; and (5)
fled with and urged the shooter to conceal the gun.3
The defendant points to several cases in which this court
did conclude that failure to pursue an avenue of witness
impeachment could constitute ineffective assistance. However,
each of these cases is appreciably different from the instant
case. For example, in Commonwealth v. Ly, 454 Mass. 223, 229-
2
We also noted this point in our 1995 decision upholding
the defendant's conviction. See Commonwealth v. Valentin, 420
Mass. 263, 266-267 (1995).
3
The jury also heard the testimony of three witnesses other
than Stokes that the defendant kicked or stomped on the victim's
head as he fled the scene with Simon, although in his testimony
the medical examiner did not mention any injuries to the victim
consistent with being kicked or stomped on the head.
12
231 (2009), the defendant's primary defense to a charge of
indecent assault and battery was that the complainant had called
him multiple times after having sexual relations with him,
saying that she wanted to marry and move away with him, and that
she did not bring a complaint until after he refused. The
attorney in Ly failed to summon these crucially relevant
telephone records and therefore was unable to impeach the
complainant when she denied ever calling the defendant after the
incident. Id. at 229. Accordingly, this court found that the
failure of counsel to impeach the complainant using telephone
records was ineffective assistance, noting that the "centrality
of the telephone calls to the only issue in the case is
apparent, and should have been apparent to trial counsel before
the case began." Id. at 230. See Commonwealth v. Nwachukwu, 65
Mass. App. Ct. 112, 116-117 (2005) (ineffective assistance of
counsel where attorney failed to obtain records that
contradicted complainant's testimony and therefore failed to
impeach her though her testimony and credibility went to heart
of case).
Unlike in Ly where there was only one disputed issue that
depended completely on the complainant's credibility, there were
several disputed issues here other than Stokes's credibility,
and each could have been established in a variety of ways.
Whether the defendant actually made the statement in question
13
was not the linchpin of the defense. Defense counsel presented
several alibi witnesses, who, if believed, would have rendered
anything that Stokes said about the shooting incident
irrelevant. Moreover, defense counsel did attempt to impeach
Stokes's credibility and the credibility of the other
eyewitnesses with prior inconsistent statements about what
occurred. Even if the jury did not believe the alibi witnesses,
they still had reason to doubt the testimony of the
Commonwealth's witnesses as to what the defendant did and said.
Where this was not a single issue case like Ly, the failure to
impeach here is not so obviously unreasonable.
The defendant also cites to Commonwealth v. Sena, 429 Mass.
590 (1999), S.C., 441 Mass. 822 (2004). In Sena, although other
witnesses placed the defendant at the scene of the crime, only
one saw the defendant shoot the victim. Id. at 592. Prior to
trial, the witness had made a statement to a defense
investigator that contradicted his trial testimony. Id. at 591-
593. After already having been admonished twice by the judge to
comply with a pretrial discovery order, defense counsel gave
prosecutors a report of the eyewitness's earlier statement on
the final day of trial. Id. at 592-593. Given the judge's
previous warnings to comply with the discovery order and defense
counsel's extremely untimely provision of the report, the judge
did not permit defense counsel to question the investigator
14
regarding the report and defense counsel was unable to use it to
impeach the eyewitness himself. Id. at 593-594. Ultimately,
this court ordered a new trial, as, given counsel's missteps, we
could not be "substantially confident that, if the error had not
been made, the jury verdict would have been the same," id. at
595, quoting Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3
(1998), as the preclusion of the reports "had a tangible effect
on [the defendant's] defense." Id.
Sena is readily distinguishable from the present case. In
that case, the attorney's error was not merely a strategic
decision. The ultimate prejudice to the defendant arose from
his attorney's failure to comply with a discovery order. As a
consequence, defense counsel was unable to use the
investigator's report to cross-examine the eyewitness or to
examine the investigator. Id. at 594-595. Although the
eyewitness had already been impeached and some of the facts from
the report otherwise had been admitted in evidence, the addition
of the investigator's report would have permitted the jury to
completely reject the sole eyewitness's testimony rather than
just call it into question. See id. at 595.
Finally, the defendant analogizes his case to a series of
United States Supreme Court cases under the confrontation clause
of the Sixth Amendment in which a judge's refusal to allow
impeachment of a witness was sufficiently prejudicial to require
15
a new trial. However, these cases are not analogous to the
defendant's case for two reasons. First, the standard of review
of confrontation errors is considerably stricter than the
ineffectiveness standard applicable to the instant case. See,
e.g., Olden v. Kentucky, 488 U.S. 227, 232 (1988), quoting
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) ("whether,
assuming that the damaging potential of the cross-examination
were fully realized, a reviewing court might nonetheless say
that the error was harmless beyond a reasonable doubt");
Commonwealth v. Vardinski, 438 Mass. 444, 450 (2003) ("whether
reversal is warranted because the error was not harmless beyond
a reasonable doubt"). Second, those cases deal with a judicial
decision to disallow impeachment evidence, rather than a defense
counsel's strategic decision not to impeach a witness or to use
a particular method of impeachment after tactical consideration.
Given that this case involved multiple avenues of defense,
more than one key witness, and general impeachment of all of the
Commonwealth's witnesses based on inconsistent statements,
defense counsel's strategic decision not to impeach Stokes's
particular statement was not "manifestly unreasonable" such that
her assistance was ineffective. Moreover, even though defense
counsel did not pursue an otherwise available avenue of
impeachment, and although in hindsight that may not appear to
have been wise, we cannot conclude that this decision so
16
impacted the outcome of the case that there was a "substantial
risk of a miscarriage of justice."
2. Substitution of trial counsel. The United States
Supreme Court has found that a criminal trial is inherently
unfair if the defendant is denied counsel at a "critical stage"
of the proceedings, meaning that counsel is either totally
absent or is prevented from assisting the accused at that time.
United States v. Cronic, 466 U.S. 648, 659 n.25 (1984). Such
denials of counsel constitute structural error and require no
showing of prejudice to warrant reversal. Id. at 658-660, 662.
In Massachusetts, jury deliberations have been found to be
a critical stage of the proceedings, at least when the jury
communicates a request that is of legal significance.
Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 632 (2000).
See Commonwealth v. Floyd P., 415 Mass. 826, 833-834 (1993).
The assistance of counsel in these circumstances requires the
judge, before responding to the jury's communication, to consult
with counsel as to an appropriate response.
Here, the jury requested reinstruction on joint venture and
premeditation, two legal issues of significance to the case, and
the judge responded to the jury's questions in the absence of
the defendant's original counsel. Therefore, the issue before
us clearly arose during a critical stage of the proceedings,
such that if the defendant was actually or constructively denied
17
counsel, he would have a right to a new trial without a showing
of prejudice. See, e.g., Curtis v. Duval, 124 F.3d 1, 4-5 (1st
Cir. 1997) (automatic reversal required when judge gives jury
instruction without consulting with and in absence of defendant
and counsel).
a. Structural error. The defendant argues that even
though he had counsel during every stage of jury deliberations,
he was constructively denied counsel because the judge did not
obtain his informed consent to the substitution of counsel and
substitute counsel was unfamiliar with the case. Further, even
if the Sixth Amendment does not require a finding of structural
error here, the defendant argues that art. 12 is given a broader
reading than the Sixth Amendment.
The Commonwealth concedes that jury deliberations are a
critical stage of the proceedings, such that denial of counsel
would warrant automatic reversal. However, the Commonwealth
argues that because the defendant did not raise the issue of
informed consent to the substitution of counsel in his motion
for a new trial, the single justice was prevented from
determining whether the issue was new and substantial as
required by G. L. c. 278, § 33E. Accordingly, the Commonwealth
argues that the issue is waived.4
4
No challenge to the substitution of counsel, or the lack
of consent to the same, was raised in the direct appeal.
18
On the merits of the defendant's claim, the Commonwealth
argues that he was not constructively denied counsel because
substitute counsel, a licensed lawyer, was present and competent
to represent him at that stage. The Commonwealth additionally
argues that even though art. 12 may afford greater protections
than the Sixth Amendment, the defendant is still required to
show that the substitution of counsel resulted in the forfeiture
of a substantial defense, which the defendant has not shown.
Trial counsel's affidavit indicates that the defendant
least knew about the attorney substitution, but it is apparent
that the judge did not obtain the defendant's consent on the
record before permitting it. The defendant has not cited to any
case in which a court has held that the absence of informed
consent to substitute counsel mandates reversal, and we decline
to adopt such an absolute rule. We are not persuaded that the
substitution of counsel during jury deliberations without the
defendant's consent constitutes a per se structural error.
Structural errors are ones that render the "adversary process
itself presumptively unreliable" or that constitute
"constitutional error[s] of the first magnitude" that simply
cannot be cured even if the error was ultimately harmless.
Cronic, 466 U.S. at 659, quoting Davis v. Alaska, 415 U.S. 308,
318 (1974). This court also has held that structural errors are
"fundamental defects" that "necessarily render[] a criminal
19
trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence," and accordingly, "occur
rarely." Commonwealth v. Petetabella, 459 Mass. 177, 183
(2011), quoting Commonwealth v. Hampton, 457 Mass. 152, 163
(2010).
We cannot say that the substitution of counsel in this case
amounted to such a high order of unfairness that our confidence
in the adversary process itself is in doubt or that there was a
substantial risk of a miscarriage of justice. While the court
in Cronic acknowledged that "[c]ircumstances of [this] magnitude
may be present on some occasions when although counsel is
available to assist the accused during trial, the likelihood
that any lawyer, even a fully competent one, could provide
effective assistance is so small that a presumption of prejudice
is appropriate without inquiry into the actual conduct of the
trial," 466 U.S. at 659-660, constructive denials of counsel
which meet that order of magnitude are rare. In Cronic itself,
the Court declined to find structural error, even where a
defendant was facing a twenty-five year sentence for mail fraud
and was appointed a young attorney with a real estate practice
who had only twenty-five days to prepare, while the government
had had four and one-half years to investigate the case and
review thousands of documents. 466 U.S. at 649, 666. Contrast
Powell v. Alabama, 287 U.S. 45, 58 (1932) (structural error
20
where defendants charged with atrocious crime and "put in peril
of their lives within a few moments after counsel for the first
time charged with any degree of responsibility began to
represent them").
The defendant notes several cases in other jurisdictions in
which convictions were overturned because an unprepared counsel
was appointed at the last minute for the duration of an entire
trial. See Hunt v. Mitchell, 261 F.3d 575, 582-583, 585 (6th
Cir. 2001); United States v. Koplin, 227 F.2d 80, 86 (7th Cir.
1955); In re Shawn P., 172 Md. App. 569, 587-588 (2007). Such
cases present a far different circumstance from the one before
us. Each involves representation by an unprepared attorney for
an entire trial, such that defense counsel could not
meaningfully function as an effective adversary. Ultimately,
"the 'appropriate [Sixth Amendment] inquiry focuses on the
adversary[y] process, not on the accused's relationship with his
lawyer.'" Commonwealth v. Britto, 433 Mass. 596, 607 (2001),
quoting Commonwealth v. Tuitt, 393 Mass. 801, 806-807 (1985).
The defendant's argument that art. 12 should provide relief
in these circumstances is also meritless. He cites no examples
of how a broader reading of art. 12 would help him in this
analysis, other than that this court has found denials of the
right to counsel amounting to structural error specifically
where a trial attorney has a conflict of interest or where the
21
trial judge has not followed strict protocols for forfeiting the
right to counsel. See, e.g., Commonwealth v. Hodge, 386 Mass.
165, 169-170 (1982) (where counsel has genuine conflict of
interest, no prejudice required to warrant new trial);
Commonwealth v. Means, 454 Mass. 81, 89-97 (2009) (strict
protocols apply before defendant can be found to have waived or
forfeited his right to counsel). Both of these cases are
consistent with an understanding that constructive denials of
counsel rising to a level of structural error occur only where
the defendant essentially is denied the assistance of any
qualified attorney who could theoretically represent him in a
way that does not undermine our trust in the adversary system.
Here, substitute counsel was not fundamentally incapable of
representing the defendant's interests for the brief period of
his representation to warrant a finding of structural error.
And, as found by the motion judge, substitute counsel did
actively render some assistance to the defendant by ensuring
that objections to the instructions made earlier by trial
counsel were preserved. Any error in permitting substitute
counsel to stand in for trial counsel was not structural and
therefore requires a showing of prejudice in order to justify a
new trial.5 No such showing has been made.
5
In the future, it would be better practice for the judge
to engage in a colloquy with the defendant to ensure that he has
22
b. Effectiveness of counsel. Even if the defendant was
not constructively denied counsel outright, he still has a right
to effective assistance of counsel. Accordingly, we look to
whether the conduct fell within a range of professionally
reasonable judgments based on the professional norms as they
existed at the time. Strickland, 466 U.S. at 688. The measure
we use in assessing attorney conduct is an objective one. See
Commonwealth v. Hardy, 464 Mass. 660, 665 (2013), cert. denied,
134 S. Ct. 248 (2013); Saferian, 366 Mass. at 96. Unlike with a
structural error, if substitute counsel's performance was
substandard, the defendant must still show prejudice and that
better work "might have accomplished something material for the
defense." Acevedo, 446 Mass. at 442, quoting Satterfield, 373
Mass. at 115.
Here, substitute counsel represented the defendant for only
a portion of the jury's deliberations, during which time the
judge provided reinstruction on two legal issues on which he had
previously instructed the jury in the presence of trial counsel.
The defendant claims error as to the "joint venture"
reinstruction, noting that while trial counsel made sure the
judge instructed that both "guilty" and "not guilty" verdicts
were options when considering whether the defendant should be
been properly informed about and has no objection to the
substitution before allowing it.
23
convicted of this charge, the judge did not include the option
of "not guilty" when reinstructing on joint venture and
substitute counsel did not object. This omission on the part of
substitute counsel arguably is not even error, because the jury
were previously instructed both generally and in the context of
joint venture that they could find the defendant not guilty and
had to if the Commonwealth failed to prove any element of murder
beyond a reasonable doubt.
Further, it is not clear that the judge would have repeated
the full instruction he had given previously even if substitute
counsel had objected. The jury's question was specifically,
"Your Honor, could you please refresh [us] on the laws on the
elements of the joint venture in detail." The judge could have
interpreted this question to be fully answered by only walking
through the various elements of joint venture. Therefore, we
cannot say that substitute counsel's failure to object likely
influenced the jury's verdict in any significant way.
The defendant also claims error as to the judge's
supplemental premeditation instruction. The judge intermingled
a definition of malice generally within his explanation of
premeditated malice and included a statement, only in the
supplemental premeditation instruction, that malice generally
could be "a specific intent to inflict grievous bodily harm."
Thus, the jury could have possibly understood premeditated
24
malice to include intent to inflict grievous bodily harm, so
long as the "deliberation and reflection" elements of
premeditation were met.6
In support of his argument, the defendant cites
Commonwealth v. Johnson, 435 Mass. 113, 119, 121-122 (2001), in
which this court held that a premeditation instruction that
included all three prongs of malice created a substantial
likelihood of miscarriage of justice. However, Johnson was
decided long after the defendant's trial and substitute counsel
could not possibly have been aware of it at that time. As noted
by the Commonwealth, this court did not expressly state until
1998 that jury instructions should make clear that "murder in
the first degree by reason of deliberate premeditation relates
only to the first prong of malice," a specific intent to kill.
Commonwealth v. Diaz, 426 Mass. 548, 553 (1998). Still,
substitute counsel could have argued that the supplemental
instruction was confusing. Accordingly, we consider whether not
pursuing this argument was "manifestly unreasonable" in a way
that gives rise to a "substantial risk of a miscarriage of
justice" (citation omitted). Acevedo, 446 Mass. at 442.
6
The Commonwealth claims that the judge included a
reference to malice as grievous bodily harm in the original jury
instructions as well and trial counsel did not object. Although
this is accurate, the judge also clearly delineated malice
generally, as it would apply to murder in the second degree,
from premeditated murder.
25
Given that this court had yet to articulate expressly that
jury instructions on deliberate premeditation clearly should
relate only to the first prong of malice, it is an unreasonably
high standard to expect "an ordinary fallible lawyer" to have
anticipated this future holding and objected to the jury
instructions. See id., quoting Saferian, 366 Mass. at 96.
Substitute counsel would not have had a clear statement of law
on which to rely in arguing that the judge erred in mentioning
grievous bodily harm in a way that could have been interpreted
to apply to premeditated murder.
Even if this was error on substitute counsel's part, we
cannot say that there was a substantial risk of a miscarriage of
justice. In a postappeal, collateral attack that raises an
issue regarding jury instructions, we "consider whether 'a
reasonable juror could have used the instruction incorrectly,'"
in light of "the instruction as a whole and in the context of
the trial." Commonwealth v. Gagnon, 430 Mass. 348, 349-350
(1999), quoting Commonwealth v. Smith, 427 Mass. 245, 249
(1998).
Considering the instructions in this case in light of how
the jury would have perceived them and in the context of the
entire trial, there was no substantial risk of a miscarriage of
justice here. First, this was a supplemental instruction and
the judge's original instructions on general malice and
26
premeditation clearly delineated the two concepts. Second,
although the judge did not distinguish the two concepts as
clearly in the supplemental instruction, he did make a
distinction between the two. He described "malice aforethought,
just plain malice aforethought," and then reiterated that this
could be an intent to kill without justification or an intent to
inflict grievous bodily harm. Then, he noted that "deliberately
premeditated malice aforethought is something more than that,"
and proceeded to discuss premeditation at greater length.
Moreover, in his premeditation discussion, he repeatedly
described premeditated malice as "something more than the
instant formation of the purpose to take life," it requires a
"plan or purpose to take life," or a settled "determination to
kill."
Thus, even though the judge's supplemental instructions
could have more clearly distinguished between general malice and
premeditation, the jury would have understood from the language
of the judge's supplemental instruction that deliberate
premeditation relates to an intent to kill and not an intent to
inflict grievous bodily harm. Although the defendant surmises
that trial counsel might have objected to portions of the
supplemental instructions given her detailed familiarity with
the case, the fact that a certain attorney might have done a
better job on the defendant's behalf is not the standard for
27
ineffective assistance of counsel. Even though he could have
made certain objections regarding the supplemental instructions,
substitute counsel's actions did not fall below what we would
expect from an ordinary fallible lawyer, and the defendant was
not significantly prejudiced by substitute counsel's performance
such that he is entitled to a new trial.
Conclusion. The order denying the defendant's motion for a
new trial is affirmed.
So ordered.