144 N.E.3d 254
Mass.2020Background
- In 1976 Martin entered Gordon Brown's Cambridge apartment with intent to obtain drugs; during an attempted robbery Martin shot and killed Edward Paulsen; Richard Paulsen testified they intended to buy drugs and were robbed.
- Martin fled to Canada and was arrested in 1999; tried in Massachusetts and convicted by a jury in 2001 of first‑degree murder on the theory of felony‑murder.
- Key evidence: Richard's consistent eyewitness account, Weiss (girlfriend) testimony that Martin brought a gun, forensic/ballistics evidence inconsistent with a close‑range accidental discharge, and Martin’s post‑flight statement to a cousin claiming a struggle/accidental shot.
- Defense counsel in opening said Brown would testify the crime was an armed robbery and promised to elicit police testimony about how drug deals are handled; Brown never testified and the promised police testimony was not elicited.
- Martin sought a new trial claiming ineffective assistance, sought retroactive application of Commonwealth v. Brown (2017), and claimed the judge erred by refusing manslaughter instructions; he also asked relief under G. L. c. 278, § 33E.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Martin) | Held |
|---|---|---|---|
| 1) Ineffective assistance for opening statement promises and limited pretrial contact | Errors did not create reasonable likelihood of influencing verdict; overwhelming evidence of armed robbery. | Counsel was manifestly unreasonable for promising Brown would testify, failing to elicit promised police testimony, and inadequate client contact. | Counsel’s statement about Brown was manifestly unreasonable, but errors were not prejudicial given the strong evidence; other claims fail. |
| 2) Retroactive application of Commonwealth v. Brown (change to felony‑murder) | Brown changed substantive common law and may be prospectively applied; retroactivity not required. | Brown should apply to pending appeals for fairness and due process; Martin’s trial occurred before Brown was decided but appeal was pending. | Declined to apply Brown retroactively; Brown changed substantive common law (not a new federal constitutional rule) and may be prospectively limited. |
| 3) Failure to instruct on voluntary/involuntary manslaughter | Instructions given (including on murder 2d) were sufficient; evidence did not credibly support manslaughter for jury. | Judge erred in refusing requested manslaughter instructions because a jury could credit Martin’s story of an accidental shooting during a struggle. | Judge erred in refusing manslaughter instructions, but error was not prejudicial given other instructions and weak supporting evidence. |
| 4) Failure to instruct on felony‑murder 2d based on uncharged felonies / §33E relief | No party requested such an instruction at trial; no error in omitting instruction on uncharged predicate felonies; conviction stands. | Judge should have instructed on felony‑murder 2d based on uncharged felonies (conspiracy, unlicensed firearm, armed assault). | No error; court declines §33E relief after plenary review; conviction of 1st‑degree felony‑murder affirmed. |
Key Cases Cited
- Commonwealth v. Brown, 477 Mass. 805 (2017) (revised common‑law felony‑murder rule; felony‑murder no longer alone supplies malice for murder).
- Griffith v. Kentucky, 479 U.S. 314 (1987) (new federal constitutional rules of criminal procedure must be applied retroactively on direct appeal).
- Fiore v. White, 531 U.S. 225 (2001) (distinguishing clarifications of existing law from substantive changes with retroactivity implications).
- Bunkley v. Florida, 538 U.S. 835 (2003) (Fiore analysis on whether change is substantive or clarifying).
- Commonwealth v. Kolenovic, 471 Mass. 664 (2015) (ineffective‑assistance review: tactical decisions tested for being "manifestly unreasonable").
- Commonwealth v. Stokes, 460 Mass. 311 (2011) (uncharged felonies may serve as predicate for felony‑murder if supported by evidence).
- Commonwealth v. Pina, 481 Mass. 413 (2019) (standard for when manslaughter instruction is required).
- Commonwealth v. Field, 477 Mass. 553 (2017) (prejudice standard for ineffective assistance claims).