46 Mass. App. Ct. 348 | Mass. App. Ct. | 1999
The defendant, Abigail Gilliard, was tried by jury and convicted of the murder in the second degree of Yolanda Carter. She received the mandatory sentence of life imprisonment. On appeal, our court affirmed the conviction. Commonwealth v. Gilliard, 36 Mass. App. Ct. 183 (1994). However, the court (by Fine, J.), on its own initiative, ordered that new defense counsel be appointed who might move for a new trial. Id. at 192. This was to test whether trial counsel had provided ineffective assistance to the defendant by failing to request an instruction on assault and battery as a lesser included offense. New counsel did as the court suggested and a judge of the Superior Court (other than the trial judge), after reexamining the trial record and receiving affidavits of trial counsel, al
1. There is no discordance between the summary of the record by our court and the summary by the motion judge. The substance — we borrow largely verbatim from the two summaries — is as follows. On the night of January 27, 1990, a large number of people, mostly female, including the defendant Gilliard (aged seventeen), were involved in a street fight on Shawmut Avenue in the Roxbury section of Boston. The fight resulted in the fatal stabbing of Yolanda Carter.
At the trial on the indictment for murder, five of the six eyewitnesses who testified for the prosecution stated that before the victim collapsed with a fatal knife wound, several females, of whom the defendant, at least inferably, was one, were punching and beating the victim for a period of between five and twenty minutes while she was trying to protect herself at the hood of a parked car. Testimony from those five Commonwealth witnesses placed one knife in the hands of a male and another knife in the hands of a girl dressed in red. No one testified that this female was the defendant. A defense witness testified that she saw a knife in the hands of a light-skinned girl, also not the defendant.
There was no direct evidence of who did the stabbing. Only Lisa Lane, a Commonwealth witness, provided evidence connecting the defendant with a knife. Lane testified that she had a knife and that, in the course of the fight, the defendant called to her, “Give me the knife; [gjive me the knife,” and she then handed the knife to the defendant. Shortly after the incident, however, Lane told the police that she had not seen the defendant with a knife, and that it was a different participant, a close friend of hers, who had requested the knife.
In addition to the testimony surrounding the incident, the Commonwealth offered inculpatory statements made by the defendant on two subsequent occasions. Trial witness Denise Spurill testified that on March 10, 1990, while at the Jackson Square Massachusetts Bay Transportation Authority station, the defendant said, ‘You’ll be the next bitch that I kill, just like I did that bitch Yolanda Carter.” Trial witness Terry Spence testi
2. After closing speeches, the judge instructed the jury on murder in the first and second degrees. He also instructed on voluntary manslaughter. Defendant’s counsel wanted the judge to instruct on murder and on no other offenses, so they objected to the judge’s instructing even on manslaughter.
As we observed, 36 Mass. App. Ct. at 189, there was evidence warranting a finding that the defendant engaged in a joint venture to murder Carter, and also evidence warranting a finding that the defendant, without the intent required for murder, participated in a joint venture only to beat Carter with her fists. In connection with the instruction on joint venture, defense counsel asked the judge to distinguish what was required for a finding of joint venture to murder from the requirements for a joint venture to commit assault and battery. The judge charged accordingly.
The jury brought in a verdict of guilty of murder in the second degree and subjoined a statement on the verdict slip indicating that the defendant’s guilt was that of a joint venturer, not a principal — guilty “as a participant in a joint enterprise.”
3. On defendant’s appeal to our court,
The court responded to these contentions and affirmed the conviction. It added the order for appointment of new counsel.
4. As mentioned above, trial counsel sought and obtained an instruction marking the difference between joint venture to murder and joint venture to assault and beat. At the same time, counsel must have been aware — and an affidavit of counsel confirms they were aware — that there was evidence sufficient to support a finding of assault and battery.
The Commonwealth, assuming for argument’s sake that counsel rendered ineffective assistance,
The court in Commonwealth v. Schand, 420 Mass. 783, 787 (1995), said “[a] motion for new trial is addressed to the sound discretion of the judge” (quoting from Commonwealth v. Moore, 408 Mass. 117, 125 [1990]), “and the judge’s disposition of the motion will not be reversed unless it is manifestly unjust.” Ibid. We believe there was no abuse of discretion herein.
5. Our affirmance of the motion judge’s order for a new trial on the ground of ineffectiveness of trial counsel relieves us, as it did the motion judge, of deciding whether the trial judge erred in failing to charge sua sponte on assault and battery as a lesser offense. See Commonwealth v. Thayer, 418 Mass. 130, 133 (1994); Commonwealth v. Yunggebauer, 23 Mass. App. Ct. 46, 52 & n.4 (1986).
So, also, we need not consider whether counsel’s admitted failure to consult with the defendant about gambling to forgo an assault and battery instruction was misconduct which itself would warrant the allowance of a new trial. See Strickland v. Washington, 466 U.S. 668, 688 (1984). As the Commonwealth remarks in its brief, “Counsel unquestionably should have consulted with the defendant.”
Order allowing new trial affirmed.
Neither side asked for an evidentiary hearing; both submitted briefs and argued orally. The judge accepted the factual assertions in the affidavits of defense counsel since they were uncontroverted.
The judge charged: “The mere fact that the defendant decided to engage in a fist fight is no evidence that she decided to enter a joint enterprise involving knives. There is a shared criminal intent again of striking the victim with a knife that you must find to a point beyond a reasonable doubt.”
Counsel on the defendant’s appeal was affiliated with trial counsel.
There was testimony from at least five eyewitnesses that the defendant was
In appraising a claim of ineffective assistance of counsel, we are “to see whether there has been 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).