Commonwealth v. ConceicaoCommonwealth v. Conceicao
- Reporters:
- , ,
- Before:
- Hennessey
The defendant, Paul Conceicao, was convicted by a jury of the unarmed robbery of Albert LeBoeuf and sentenced to the Massachusetts Correctional Institution at Walpole for a term of seven to fifteen years. The defendant appealed and the conviction was affirmed by the Appeals Court in Commonwealth v. Conceicao, 10 Mass. App. Ct. 899 (1980). Both at trial and on appeal to the Appeals Court the defendant was represented by court-appointed counsel.
On March 11, 1981, the defendant, pro se, filed a motion for a new trial, pursuant to
On this appeal, the defendant argues that the United States Constitution, the Massachusetts Declaration of Rights, and
In August, 1978, around 1 a.m., Albert LeBoeuf was in his car in New Bedford. LeBoeuf was approached by a woman, later identified as Maureen Pullman, who asked him if he wanted to go out. LeBoeuf accepted, a price was discussed, and the two drove to a parking lot next to some apartments on Elm Street in New Bedford. LeBoeuf got out of the car, turned around, and saw two men, one of whom he later identified as the defendant. The man with the defendant pointed at the defendant and said to LeBoeuf, “What are you doing with his old lady?” The defendant
When he awoke, he ran from the parking lot, where the defendant, the woman, and the other man were still standing. LeBoeuf noticed that money was missing from his pocket. He telephoned a friend who accompanied him to a police station. LeBoeuf told the police that his car had been stolen, that he had been dragged out of his car, beaten up, and robbed by four men. He described one of the men, but his description did not match the defendant. Later that day, the police again questioned LeBoeuf, and he told the police about the woman and the two men and the incident that occurred in the parking lot. The police report contained no description of either Maureen Pullman or the defendant. LeBoeuf picked out photographs of Pullman and the defendant from an array of photographs shown him by the police.
1. Constitutional Right to Have Counsel.
The defendant’s first argument is that the State and Federal Constitutions require appointment of counsel to assist indigent defendants in preparing and presenting motions for a new trial. The defendant relies on
Douglas
v.
California,
372 U.S. 353, 355-356 (1963), where the United States Supreme Court established a per se rule that a State is bound constitutionally to provide counsel for an indigent defendant on his first appeal as of right. The defendant in this case acknowledges, however, that indigent defendants do not have an absolute right to have counsel appointed to represent them in all postconviction proceedings. Indeed, in
Ross
v.
Moffitt,
417 U.S. 600, 609-616 (1974), the Court concluded that neither the due process clause nor the equal protection clause of the Fourteenth Amendment requires a State to provide an indigent defendant appointed counsel to represent him on a discretionary appeal to a State supreme court. The Court noted that, although a State has no duty to provide an appellate process, once it chooses to allow appeals, it may not single out indigent defendants and deny them meaningful access to the appellate system because of
Hence, in
Ross,
the Supreme Court clearly determined that an indigent defendant does not have an absolute right to have counsel appointed at all postconviction proceedings.
3
See also
Gagnon
v.
Scarpelli,
411 U.S. 778, 788-789 (1973) (indigent defendant’s right to have counsel appointed to represent him at probation revocation hearing must be decided on case-by-case basis). See generally Note, Criminal Procedure — Post-Conviction Right to Counsel, 77 W. Va.
We are aware of only one case where a court has addressed an indigent defendant’s right to have counsel appointed to represent him on a motion for a new trial. In Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965), the United States Court of Appeals for the First Circuit summarily concluded that the Federal Constitution does not require a court to appoint counsel to represent an indigent defendant in presenting a motion for a new trial. Rather, the court determined, “[ajfter final conviction the appointment of counsel must rest in the discretion of the court.” Id. In analogous cases, courts have determined that indigent defendants do not have an absolute right to be provided with a free trial transcript to aid them in preparing a motion for a new trial. See United States v. Banks, 369 F. Supp. 951, 955 (M.D. Pa. 1974); People v. Martinez, 174 Cal. Rptr. 771, 782 (1981); People v. Lopez, 1 Cal. App. 3d 78, 81-83 (1969); Morris v. State, 532 S.W.2d 61, 63 (Tenn. Crim. App. 1975). These courts have reasoned that, although the equal protection clause guarantees that indigency may not compromise a person’s defense or statutory appeal procedure, “[a] motion for a new trial is consistently placed in a different category than the original trial or an appeal from a conviction.” Banks, supra at 954.
In cases involving petitions for habeas corpus relief, which are similar to motions for a new trial, courts have also concluded that indigent defendants do not have an absolute right to be furnished appointed counsel. See, e.g.,
Norris
v.
Wainwright,
588 F.2d 130, 132-134 (5th Cir.), cert. denied, 444 U.S. 846 (1979) (Federal and State petition);
Graham
v.
State,
372 So. 2d 1363, 1365-1366 (Fla. 1979) (Federal and State petition);
Honore
v.
Washington State Bd. of Prison Terms,
77 Wash. 2d 660, 673-674 (1970) (State petition). Some courts have adhered to a view that the decision whether to appoint counsel in proceedings on a habeas corpus petition is discretionary with the trial judge
After reviewing both United States Supreme Court precedent and decisions of other courts, we conclude that an indigent defendant does not have an absolute right under any provision of the United States Constitution or the Massachusetts Declaration of Rights to appointed counsel in preparing or presenting his motion for a new trial. We emphasize that, by reason of the fact that a State has no obligation to provide a procedure enabling defendants to make motions for a new trial, it need not place poor and wealthy defendants on an absolutely equal level in terms of the services available to them in pursuing a motion for a new trial. Ross v. Moffitt, 417 U.S. 600, 609-616 (1974). Rather, the State need only ensure that indigent defendants have meaningful access to this postconviction proceeding. Id. at 616.
The appointment of counsel on a motion for a new trial is not necessary in all cases to ensure meaningful access. In many cases, the judge ruling on the motion for a new trial will be the same judge who presided over the original trial. See
United States
v.
Banks,
369 F. Supp. 951, 955 n.7 (M.D. Pa. 1974). Therefore, the judge will have familiarity with both the legal and factual issues involved. Moreover, in many cases defendants present frivolous and repetitive motions. Accordingly, allowing a judge to rule on these motions without appointing counsel would not result in a denial of meaningful access to the court. Furthermore,
We note that, when a defendant presents a motion for a new trial which raises a colorable or meritorious issue, “it is much the better practice to assign counsel.” Dillon v. United States, 307 F.2d 445, 448 (9th Cir. 1962), quoting United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir. 1960). We do not go so far, however, as those courts which have concluded that, once a substantial issue is raised, the appointment of counsel is mandatory. See, e.g., Graham v. State, 372 So. 2d 1363, 1366 (Fla. 1979). In our view, the decision whether to appoint counsel remains discretionary with the judge and the determination whether a refusal to appoint counsel deprives an indigent defendant of meaningful access, Ross v. Moffitt, supra at 616, or results in fundamental unfairness, Lassiter v. Department of Social Servs., 452 U.S. 18, 24-25 (1981), will be resolved on a case-by-case basis. See Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973).
In this case no constitutional violation occurred when the judge declined to appoint counsel to represent the defendant. We point out that the judge who presided at trial was also the judge who reviewed the defendant’s motion for a new trial. Furthermore, five of the eight recited reasons alleged to require a new trial related to the trial judge’s charge to the jury and involved no factual issues. See
Commonwealth
v.
Lynes,
13 Mass. App. Ct. 1028 (1982). The remaining three errors asserted in the defendant’s motion pertained to defense counsel’s alleged ineffectiveness in failing to request production of photographs that were shown to the Commonwealth’s identification witness, in failing to move to suppress the photographic identification, and in allowing a policeman to testify to the effect that the defendant had been in trouble with the police prior to the incident at issue. Each of these claims involved factual and legal issues with which the judge was sufficiently familiar to consider the defendant’s motion without appointing counsel. The strongest factor negating a constitutional violation in
2.
Right to Counsel Under
The defendant also claims that he was entitled to appointed counsel under
3. Denial of Effective Assistance of Counsel.
The defendant’s remaining arguments relate to the substantive grounds on which he bases his motion for a new trial. We need not address any of these issues except in so far as they relate to whether the defendant was denied effective assistance of counsel because none of these issues were raised at trial or in the defendant’s appeal as of right, although they could have been, and, further, because some of these issues were not raised in the defendant’s motion for a new trial. See Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973), and cases cited.
(a)
Failure to file motion to suppress.
The defendant asserts that he was denied effective assistance of counsel because his trial counsel failed to file a pretrial motion to suppress certain photographic identifications made by the victim. We disagree. There is no indication that the pretrial identification was the result of impermissibly suggestive procedures or that there was any defect in the identification process.
4
Therefore, it is highly unlikely that a motion to suppress would have succeeded. It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success. See
Commonwealth
v.
Saferian,
366 Mass. 89, 99 (1974);
Commonwealth
v.
LeBlanc,
11 Mass. App. Ct. 960, 962-963 (1981);
Commonwealth
v.
Schlieff,
5 Mass. App. Ct. 665, 669 (1977). Furthermore, as the defendant concedes, the decision not to file a motion to suppress may have been a tactical one. See
(b) Failure to request misidentification charge. The remainder of the defendant’s arguments relate to the adequacy of the judge’s instructions to the jury. First, the defendant submits that he was denied effective assistance of counsel by his trial attorney’s failure to request jury instructions on the issue of misidentification. The defendant relies principally on Commonwealth v. Rodriguez, 378 Mass. 296, 302 (1979), where we indicated that a defendant who fairly raises issues at trial concerning misidentification might well be entitled to instructions on those issues. See also United States v. Telfaire, 469 F.2d 552, 555 n.11 (D.C. Cir. 1972) (per curiam). In Rodriguez, supra, we suggested the identification instructions of Telfaire, supra at 558-559, as appropriate for cases in which identification is in issue, with the further suggestion that they may be modified as the evidence and allegations at trial require. Rodriguez, supra at 310 n.1. See also Commonwealth v. Moffett, supra at 755. The defendant here argues that his entire defense at trial rested on challenging the credibility of the victim’s identification. The defendant further asserts that no identification instructions were given. We point out, however, that the trial judge did charge on the possibility of misidentification. Although the judge did not include every portion of the Rodriguez instruction, trial counsel’s failure to request such instructions did not deprive the defendant of his right to effective assistance of counsel. 5
(c)
Failure to object to charge on reasonable doubt.
The defendant next argues that the judge erred in equating reasonable doubt with moral certainty. The defendant asserts that the repeated equation of “reasonable doubt” with “moral certainty” deprived him of his constitutional right to be convicted of a crime only on proof beyond a reasonable doubt. He contends that the phrase “moral certainty” misinforms the jury because “[it] could be interpreted to mean that the certainty is based on feeling, i.e., moral conviction, rather than facts. ”
United States
v.
Indorato,
628 F. 2d 711, 721 n.8 (1st Cir.), cert. denied, 449 U.S. 1016 (1980). In
Indorato, supra,
the United States Court of Appeals for the First Circuit disapproved of the use of the “moral certainty” phraseology in jury instructions.
Id.
at 721. See also
United States
v.
Whitaker,
372 F. Supp. 154, 160 (M.D. Pa.), aff’d mem., 503 F.2d 1400 (3d Cir. 1974), cert.
Our use of the phrase “moral certainty” derives from suggested jury instructions in Commonwealth v. Webster, 5 Gush. 295, 320 (1850). In Commonwealth v. Tavares, 385 Mass. 140, 147 (1982), we, like the Court of Appeals for the First Circuit, recently indicated that use of this term was not error. The defendant’s, argument therefore fails. In this case, the charge read as a whole adequately apprised the jury of the reasonable doubt standard and the defendant was not deprived of effective assistance of counsel by his trial attorney’s failure to object to the judge’s charge.
(d)
Failure to object to charge on appellate process.
The defendant asserts next that the trial judge’s reference in his charge to the appellate process constituted error. We disagree. Although we have cautioned against the “unnecessary mention of the appellate process to the jury,”
Commonwealth
v.
Johnson,
379 Mass. 177, 182 (1979), we have held such remarks to constitute reversible error only when they had the “inescapable effect of reducing the jurors’ appreciation of the significance of their deliberations and verdict.”
Id.,
quoting
Commonwealth
v.
Walker,
370 Mass. 548, 574, cert. denied, 429 U.S. 943 (1976). The judge in this case did not advise jurors “not to be overly concerned about rendering hasty or ‘correct’ verdicts [on the ground that] the defendant is adequately protected by the process of appeal to higher tribunals.”
Walker, supra.
Nor did the judge suggest that an appellate court would correct fact-finding errors of the jury. See
Johnson, supra.
An examination of the instructions reveals that the judge mentioned the appeal process only in explaining to the jurors that they should apply the law as he instructed them and should not attempt to determine whether his view of the
(e) Failure to object to charge on presumption of innocence. The defendant’s final contention is that the judge erred in his instructions as to the presumption of innocence. Specifically, the defendant argues that the judge committed reversible error when he stated that the defendant was “cloaked” with a presumption of innocence. The defendant submits that the use of the word “cloaked” prejudiced him because it conveyed to the jury that the defendant was disguised or concealed by the presumption of innocence. When read in their entirety, however, the judge’s instructions on the presumption of innocence conform substantially to the type of instructions that we have approved. See Commonwealth v. DeFrancesco, 248 Mass. 9, 13 (1924).
The defendant also urges that the judge erred in failing to state that the presumption of innocence governs until it is overcome by proof beyond a reasonable doubt. In Commonwealth v. Boyd, 367 Mass. 169, 188-189 (1975), however, we determined that a trial judge is not required to use this suggested language in his charge because this language grants the defendant an additional benefit. See also Commonwealth v. Powers, 294 Mass. 59, 63-64 (1936). Accordingly, we conclude that the judge’s instructions on the presumption of innocence were proper and that the defendant was not denied effective assistance of counsel by trial counsel’s failure to object.
Thus, we reject all the defendant’s arguments. The actions of trial counsel in this case simply cannot be said to fall below that which is expected from an ordinary, fallible lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Commonwealth v. Bernier, 359 Mass. 13, 18-19 (1971).
Order denying motion for new trial affirmed.
Notes
The defendant does not raise any joint enterprise issues, which were the only issues addressed by the Appeals Court in Commonwealth v. Conceicao, 10 Mass. App. Ct. 899 (1980). He also does not argue that he was denied effective assistance of counsel by his trial counsel’s failure to seek production of the identification photographs.
The Court stressed that, in North Carolina, at the time indigent defendants seek discretionary review in the State Supreme Court, they have a transcript of the trial proceedings, a brief that was submitted by counsel in the appeal as of right, and in many cases an opinion by the intermediate appellate court.
Ross
v.
Moffitt,
417 U.S. 600, 615 (1974). The Court also noted that the function of discretionary review by the North Carolina Supreme Court is not to examine every case to determine whether there has been a correct adjudication of guilt.
Id.
Rather, the critical issue, the Supreme Court explained, is whether the subject matter of the appeal has significant public interest or involves important legal principles or whether the decision below is in probable conflict with a decision of the State Supreme Court.
Id.
In these aspects, we note, the North Carolina procedures closely parallel the statutory criteria for appellate review by the Supreme Judicial Court. See
The Court also held that indigent defendants do not have a constitutional right to have counsel appointed to assist them in preparing a petition for a writ of certiorari for submission to the United States Supreme Court. Ross v. Moffitt, supra at 617-618. The Court based its determination on the same factors as its principal holding as well as on the additional ground that the rationale of Douglas v. California, 372 U.S. 353 (1963), applies only where a State-created right of review is at issue. Ross, supra at 617-618.
After the victim offered a description of the woman in the parking lot, a police officer produced an array of five photographs. The victim identified a photograph of Maureen Pullman as the woman in the parking lot. The officer then produced an array of eight photographs of males, and the victim positively identified the defendant as the man who beat him. The officer testified that he simply handed the photographs to the victim and asked whether he recognized anyone. The officer further stated that he did not comment or offer any suggestions to the victim during this process. These facts reveal no specific defect or suggestive tactic in the identification process, nor does the defendant suggest any.
The defendant also asserts that the identification may be challenged on the basis of the possibility of a mistaken identification induced by unre