Commonwealth v. Gorham, 32 N.E.3d 1267

Gorham was convicted of deliberately premeditated murder in the Bristol County Superior Court for shooting Davis during an Amity Street confrontation in 2007.
He defense argued only intent to scare, with the rifle discharging during a struggle when Davis grabbed the barrel.
On appeal, Gorham, represented by new counsel, challenged trial counsel’s investigation into voluntary intoxication and sought postconviction relief and funds for an investigator.
The trial judge denied a voluntary intoxication instruction and denied postconviction motions without a hearing, finding insufficient evidence of intoxication or investigative failure.
Appellate court reviewed under § 33E, affirming the conviction and the denials, and declined to exercise 278, § 33E powers to order relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was trial counsel ineffective for failing to investigate voluntary intoxication?	Gorham argues investigation was inadequate and would have supported voluntary intoxication.	Commonwealth contends investigation was sufficient and evidence insufficient for an instruction.	No reversible error; record supports trial counsel’s conduct and lack of sufficient evidence to mandate instruction.
Was there newly discovered evidence warranting a new trial?	Affidavits show intoxication and undiscovered witnesses; investigator flaws undermine trial.	The judge lacked a full accounting of the investigator’s efforts; affidavits are unreliable and not newly discovered.	No abuse of discretion; lack of full investigator record defeats newly discovered evidence claim.
Did the court err in denying motions for new trial and for funds for an investigator?	Without investigator results, posttrial relief is warranted; funds needed to complete inquiry.	Record already shows sufficient basis to deny relief and funding absent solid investigator results.	Affirmed; no error in denying motions or funds.
Should this court grant relief under G. L. c. 278, § 33E on the record as a whole?	The postconviction record warrants reconsideration and possible lesser conviction.	Record supports continued homicide conviction; no basis to reduce guilt or grant new trial.	No reason to reduce guilt or grant a new trial; § 33E review complete.

Commonwealth v. Nieves, 429 Mass. 763 (Mass. 1999) (standard for reviewing ineffective assistance in capital cases)
Commonwealth v. Wright, 411 Mass. 678 (Mass. 1992) (trial counsel conduct reviewed for potential error under § 33E)
Commonwealth v. Williams, 450 Mass. 645 (Mass. 2008) (probative threshold for effectiveness claims and investigator duties)
Commonwealth v. Diaz, 453 Mass. 266 (Mass. 2009) (credit given to postconviction affidavits in evaluating claims)
Commonwealth v. James, 424 Mass. 770 (Mass. 1997) (escapes from need for de minimis intoxication evidence in instruction)
Commonwealth v. Adams, 374 Mass. 722 (Mass. 1978) (defense strategy not manifestly unreasonable when evidence is thin)
Commonwealth v. Zinser, 446 Mass. 807 (Mass. 2006) (standards for evaluating ineffective assistance claims under trial record)