COMMONWEALTH vs. JAMES ANTHONY MARTIN.
SJC-08768
Supreme Judicial Court of Massachusetts
May 5, 2020
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SJC-08768
COMMONWEALTH vs. JAMES ANTHONY MARTIN.
Middlesex. December 5, 2019. - May 5, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Homicide. Felony-Murder Rule. Constitutional Law, Assistance of counsel, Retroactivity of judicial holding. Retroactivity of Judicial Holding. Practice, Criminal, Capital case, Assistance of counsel, Retroactivity of judicial holding, Request for jury instructions.
Indictment found and returned in the Superior Court Department on December 14, 1976.
The case was tried before Robert A. Mulligan, J., and a motion for a new trial, filed on February 18, 2016, was heard by Merita A. Hopkins, J.
Claudia Leis Bolgen for the defendant.
Timothy Ferriter, Assistant District Attorney, for the Commonwealth.
The defendant makes three arguments on appeal. First, he contends that his motion for a new trial was wrongly denied because he was deprived of his constitutional right to the effective assistance of counsel, especially in light of strategic errors his attorney made in his opening statement, which resulted in a substantial likelihood of a miscarriage of justice. Second, the defendant claims that we should extend the reach of our holding in Commonwealth v. Brown, 477 Mass. 805, 807 (2017), cert. denied, 139 S. Ct. 54 (2018), to his case, where the appeal was pending when Brown was decided, even though we limited that holding to cases where trial commenced after the date of the opinion, which would exclude this case. Third, the defendant argues that the trial judge committed prejudicial error when he declined the defendant‘s request that the jury be instructed on the elements of voluntary and involuntary manslaughter.
The defendant also asks that we exercise our extraordinary authority under
Background. We recite the facts as the jury could have found them in the light most favorable to the Commonwealth, reserving certain details for later discussion.
In 1976, the victim introduced Richard to a drug dealer, Brown, who could supply Richard with drugs. Richard‘s first purchase from Brown took place outside Symphony Hall in Boston. The victim accompanied Richard, who paid cash to Brown in exchange for the drugs. As testified to by Richard, the transaction went “very smoothly” and was a “friendly” interaction.
Richard‘s second purchase from Brown took place at Brown‘s apartment on the second floor of a three-story house in Cambridge. The victim again accompanied Richard to the transaction, and in the living room of the apartment, Brown handed Richard the drugs in exchange for cash. During these first two transactions, Richard purchased an amount of marijuana for $150 and one pound of hashish for $900.2
For the third purchase, the victim arranged for Richard to buy one kilogram of hashish from Brown for $1,600 at Brown‘s apartment. On September 9, 1976, the victim and Richard arrived at the apartment between 9 P.M. and 9:30 P.M. Richard carried with him a box with a scale inside to weigh the hashish and $1,600 for the purchase. When they entered the apartment, Brown appeared to be agitated and uneasy, which was completely different from his “happy-go-lucky” demeanor during the first two transactions. Brown told Richard and the victim that the person bringing the drugs had not yet arrived. Brown said he was going to step out and buy some beer but would be right back.
Uncomfortable with Brown‘s behavior, the victim and Richard decided to leave the apartment. As they walked downstairs, they passed two people ascending the stairs -- a woman and a man -- later identified as Meredith Weiss and the defendant, who carried a paper bag. Once the victim and Richard were outside, Richard could see that the defendant and Weiss were inside Brown‘s apartment. The victim and Richard returned to the apartment and
Immediately after Brown left, the defendant entered the bedroom from an adjoining room. The defendant pointed a gun at Richard and the victim and asked them where the money was. The victim raised his hands in the air, palms wide open, and told the defendant to “wait a minute.” The defendant then shot the victim in the chest from a distance of approximately five feet. The victim fell backwards, and Richard ran to him, guiding him to the floor. The defendant again asked where the money was, and Richard told him that the money was in their car. The defendant searched the victim‘s pockets and left.
After the defendant left the bedroom, Richard went out the window onto the porch and dropped to the ground. He saw people playing softball at a field across the street, so he ran over, screaming for help. Richard then led some ball players back to the apartment, and two individuals performed cardiopulmonary resuscitation on the victim until emergency services arrived. The victim died that night of a single gunshot wound to the left chest.
Weiss, who was the defendant‘s girlfriend at the time, testified that she had driven the defendant to the apartment that evening. The defendant told her that he needed to go to Brown‘s apartment for a drug deal, although Weiss did not see any drugs that day. The defendant also told Weiss that he was carrying a gun for protection because he was concerned about selling drugs to individuals he did not know. Weiss and the defendant passed two men as they went up the stairs to Brown‘s apartment. After Brown spoke privately with the defendant, the defendant asked Weiss to wait downstairs, so she returned to the vehicle. She had waited there about ten to twenty minutes when she heard a bang.
Five minutes later, Brown entered Weiss‘s car, followed shortly by the defendant. Both men appeared panicked, and the defendant told Weiss, “Let‘s get out of here.” Weiss drove Brown and the defendant to the apartment in Somerville that she shared with the defendant and then to Medford, where they stayed for two nights
Brown and the defendant traveled by bus to California, where the defendant telephoned his cousin, Douglas Nesbitt, late one night and asked if they could stay with him. Less than an hour later, the defendant and Brown appeared at Nesbitt‘s apartment. Nesbitt testified that the defendant explained that he was in California because he had been involved in a drug deal in Cambridge involving “two white guys” that had “gone bad.”5 The defendant told Nesbitt that, while he was negotiating the drug deal, one of the white guys pulled out a gun and “tried to stick them up.” He and one of the white guys wrestled over the gun, and the older white guy got shot. When Nesbitt returned home the next day, the defendant and Brown had left.
The defendant remained a fugitive for many years. In December 1999, he was apprehended by Canadian authorities in Montreal, where he lived under a different name, and was brought to Massachusetts to be tried for murder.
Richard Kaufman, a forensic chemist at the State police crime laboratory, analyzed the victim‘s jacket for gunpowder residue in the area where the bullet penetrated the victim‘s chest and did not detect any nitrate particles or partially burned gunpowder particles around the hole in the jacket. He testified that if the weapon had been fired close to the garment, there would be gunpowder residue in that area.
William Duke, a State police ballistician, attended the victim‘s autopsy and offered the opinion that, in light of the lack of evidence of any surrounding tissue damage or powder on the skin, the wound was not a contact wound, that is, the muzzle of the weapon was not touching or very close to the victim or to the victim‘s
Discussion.
1. Ineffective assistance of counsel.
The defendant gives three reasons why he was deprived of his constitutional right to the effective assistance of counsel. First, defense counsel in his opening statement told the jury that Brown would testify that “this was an armed robbery and not a drug deal,” even though the prosecutor had not expressly promised to call Brown as a witness, and defense counsel did not intend to call him; Brown ultimately did not testify at trial. Second, defense counsel promised in his opening statement to elicit through cross-examination of the testifying police officers “how drug deals are handled,” but never elicited that testimony at trial. Third, defense counsel visited the defendant only six times before trial and failed adequately to prepare for trial. We address each claim in turn.
a. Describing Brown‘s anticipated trial testimony in opening statement.
Before jury empanelment, at a motion in limine hearing, the judge asked the prosecutor, “Is Mr. Brown going to be a witness in this case?” The Commonwealth replied that Brown would be brought into court and that his attorney had indicated that he would testify if called. But the prosecutor added, “Strategically, I don‘t know. . . . [H]e will be available to testify. I‘m not promising him to the jury.” In his opening statement, the prosecutor did not promise the jury that Brown would be a witness or describe evidence that only Brown would have known. But in defense counsel‘s opening statement, he declared:
“You will hear from Gordon Brown during the course of this case, Gordon Kent Brown. And Gordon Kent Brown has been in jail for a substantial period of time. And in 1999 he had a parole hearing, and he was turned down for parole. The police came to see Gordon Kent Brown shortly after he was turned down for parole and asked him about [the defendant], asked him if he knew where he was, wanted information about him, so that they could arrest [the defendant]. Mr.
Brown‘s response to that was in the negative initially, but there was a second visit shortly after the first during which Mr. Brown began negotiations for [the defendant‘s] whereabouts. That is, he wanted money in exchange for bringing information that he could provide him about [the defendant]. “A year after the first parole hearing there was a second parole hearing. Mr. Brown who had been turned down for parole previously wanted to get this parole this time, and, so, during the course of the parole hearing he agreed to assist the police, to help the government in this prosecution against [the defendant] who had by that time been arrested, and based at least in part upon the representations that he made, that he was going to help, he was granted parole. At the time he was granted parole he knew [Richard] Paulsen‘s story. He knew that [Richard] Paulsen had told the police that this was an armed robbery and not a drug deal, and he knew that he had to agree with that story in order to get parole. And, so, he did.”
At a sidebar conference after defense counsel‘s opening statement, the prosecutor stated, “I just want to be clear. I never promised the jury Gordon Brown,” and “on the record I said that I was -- I don‘t want to say ambivalent, but I didn‘t know whether I was going to call Mr. Brown.” The prosecutor asked that the jury be reinstructed that opening statements are not evidence; the judge declined to do so. Neither the Commonwealth nor defense counsel called Brown to testify during the course of trial.
At the evidentiary hearing on the motion for a new trial on October 5, 2018, defense counsel testified that he never intended to call Brown as a witness but expected from his experience as a defense attorney that the Commonwealth would call Brown to testify because Brown was on the witness list, had entered into a “plea agreement” with the Commonwealth, and was still in custody. Based on his understanding of the research on opening statements “and the concepts of primacy and recency in persuading jurors,” he wanted the jury to know of “Brown‘s baggage . . . from the get go, and not after he‘d been introduced by the prosecutor,” who, on direct examination, would make “an effort to diminish the import of what his prior life had been.” He conceded, “[H]indsight being 20/20, I might not have done that today.”
The thrust of the defense, as articulated by defense counsel in opening statement, was that “this was a drug deal gone bad during the course of which the gun was flashed, a struggle ensued, the gun went off accidentally, and [the victim] was killed.” We conclude that, where defense counsel did not intend to call Brown as a witness, where the prosecutor earlier that day had told the judge in the presence of defense counsel that, strategically, he was not sure he would call Brown, and where the prosecutor did not tell the jury that Brown would testify or describe any evidence that only Brown could testify to, it was manifestly unreasonable to tell the jury that Brown would testify that what had occurred here was an armed robbery. To be sure, if Brown were to have testified, it would have been reasonable for defense counsel to discuss Brown‘s anticipated testimony in opening statement and his motivation for giving that testimony with the goal of influencing the jury‘s first impression of the credibility of that testimony. But where the prosecutor had told the judge that he had yet to decide whether to call Brown, defense counsel relied on an informed guess as to whether Brown actually would testify. The risk of telling the jury that Brown would testify and corroborate Richard‘s version of events far exceeded the benefit of influencing the jury‘s first impression of Brown if he were to testify. No competent attorney would have taken this risk and made this choice.
Counsel‘s ineffective assistance, however, requires a new trial only if it created a substantial likelihood of a miscarriage of
b. Promising to elicit from testifying police officers about “how drug deals are handled.”
In his opening statement, defense counsel told the jury:
“There‘s an alternative scenario that we would suggest to you that this was in fact a drug deal . . . and through the cross-examination of the police officers we suggest that we will show you how drug deals are handled. The drugs and the money are not generally in the same place at the same time. And in this circumstance that a sample of drugs was taken to the premises, a gun was carried in order to protect the individual from people he didn‘t know that were supposedly buying from him, that this was a drug deal gone bad during the course of which the gun was flashed, a struggle ensued, the gun went off accidentally, and [the victim] was killed.”
The Commonwealth‘s theory of this case, amply supported by Richard‘s testimony, was that this armed robbery occurred during what Richard and the victim intended to be a drug deal. Richard testified that he and the victim came to the apartment to buy drugs, and the defendant attempted to rob them of the money they had brought to pay for the drugs. There was no need for defense counsel to cross-examine the police officers to elicit from them that this was meant to be a drug deal, because that was never in dispute. What was disputed is whether the defendant sought to negotiate a drug deal, as the defendant told Nesbitt in California, or whether the defendant simply used Richard and the victim‘s belief that they were going to purchase drugs from Brown as an opportunity for an armed robbery, as Richard testified. There is no risk that this assertion in opening statement, or defense counsel‘s failure to elicit the promised testimony, in any way influenced the jury‘s verdict.
c. Defense counsel‘s failure to visit the defendant in jail more than six times before trial.
Between the date of arraignment and the commencement of trial on May 8, 2001, defense counsel visited the defendant six times while he was in jail awaiting trial: on January 12, 2000; March 23, 2000; June 17, 2000; April 26, 2001; May 1, 2001; and May 2, 2001. The defendant also contends that he received discovery from defense counsel that counsel and the defendant never had the opportunity to discuss; that they did not agree about trial strategy; that he tried to telephone defense counsel numerous times between January 2000 and April 26, 2001, but was never able to speak with him; and that they never engaged in any written dialogue about the case. The defendant, however, has failed to articulate how his defense would have been materially different if defense counsel had visited him more often or been more responsive to his attempts to contact defense counsel. At the close of the evidence at trial, the judge
2. Retroactive application of Brown.
The defendant argues that we should extend the reach of our holding in Brown to his case, even though we limited that holding to cases tried after the opinion was issued. In Brown, 477 Mass. at 807, we revised our common law of murder by declaring that, “in trials that commence[d] after the date of the opinion in [that] case,” felony-murder would no longer be an independent theory of liability for murder but simply an aggravating element under
We made clear in Brown that “[f]elony-murder is a common-law crime“; we determine its elements. Brown, 477 Mass. at 822. We declared that, in future trials, the element of malice would no longer be satisfied simply by proof of intent to commit the underlying crime: one of the three prongs of malice would have to be proved. Id. at 807. This was not a clarification of existing common law; it constituted a change to our common law. Nor was it a change to our law of criminal procedure; it was a change to our substantive criminal law. We made equally clear that our earlier felony-murder rule, which substituted the intent to commit the underlying felony for the malice required for murder, was not unconstitutional. Id. at 823. Our decision in Brown therefore did not announce a new constitutional rule. Id.
Because Brown neither established a new Federal constitutional rule nor a new Federal rule of criminal procedure, the United
In fact, this case illustrates the wisdom of prospective application of our new common law of felony-murder. The Commonwealth chose here to proceed on only one theory of murder in the first degree, felony-murder, which at the time of trial did not require the jury to find one of the three prongs of malice -- that is, that the defendant shot the victim with an intent to kill, or with an intent to cause grievous bodily harm, or intended to do an act that, in the circumstances known to the defendant, a reasonable
3. Request for jury instruction on voluntary and involuntary manslaughter.
The defendant argues that the judge committed prejudicial error in declining the defendant‘s request that the jury be instructed on voluntary and involuntary manslaughter. We agree that the judge erred, but we conclude that the error was not prejudicial in the context of his other instructions.
Although the Commonwealth proceeded solely on the theory of felony-murder, the judge, in accordance with our guidance at the time of trial, also instructed the jury regarding murder in the second degree, setting forth the three prongs of malice.7 Where an
Where the defendant requested such instructions and objected to their absence, we must determine whether the error was prejudicial. Pina, 481 Mass. at 422. “An error is not prejudicial only if the Commonwealth can show ‘with fair assurance . . . that the judgment was not substantially swayed’ by it.” Commonwealth v. Rosado, 428 Mass. 76, 79 (1998), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). We conclude, with fair assurance, that the defendant suffered no prejudice from this error.
The judge instructed the jury that, to find the defendant guilty of murder in the first degree on the theory of felony-murder, they must find beyond a reasonable doubt that the defendant brought the gun to the room in the apartment where the brothers were waiting, took it and displayed it in a threatening way, and did so with the intent to rob Richard and the victim of the money they had brought. The judge also instructed that, to find the defendant guilty of murder in the second degree, they must find that he came into the room with a gun and intentionally pointed it at one of the brothers. The judge further instructed that, to find the defendant guilty of murder in the first or second degree, the jury must find beyond a reasonable doubt that “there was an intentional act, that [the defendant] shot the gun, that it wasn‘t an accident,” and “that he pulled the trigger intentionally.”8 As a result, if the jury had a reasonable doubt whether the events had occurred as described by
4. Review under G. L. c. 278, § 33E .
As part of our plenary review, we have examined the record and conclude that a conviction of murder in the first degree is consonant with justice. We therefore decline the defendant‘s request to order a new trial or to reduce the verdict to murder in the second degree.
We specifically address only one claim of error that was not raised in the briefs but emerged in oral argument and was argued by the defendant in a letter submitted under
We have previously held “that the felony on which a charge of felony-murder is premised may be uncharged, so long as the evidence supports it.” Commonwealth v. Stokes, 460 Mass. 311, 315 (2011). The defendant is correct that the evidence would support at least the last two of the three uncharged felonies he identifies. “But where the felony later advanced by a defendant as the predicate for an instruction on felony-murder in the second degree is not itself the subject of a separate indictment, no error occurs if the trial judge does not charge the jury on it even though there may be sufficient evidence supporting such a charge -- at least where, as here, no party requested such an instruction or even brought the issue to the judge‘s attention at trial.” Id. We reasoned:
“A contrary rule has an obvious potential to undermine the
policy of finality of criminal convictions. It is likely that in almost every case where a defendant has been convicted of felony-murder in the first degree predicated on a felony punishable by life imprisonment, an argument can later be made that the trial evidence also supported the existence of one or more uncharged felonies not punishable by life imprisonment, and that therefore the jury should have been instructed on felony-murder in the second degree. Limiting the availability of such a claim to cases where the felony later advanced as presenting a basis for a charge of felony-murder in the second degree was the subject of a separate indictment may strike an appropriate balance. The existence of the indictment puts the Commonwealth (as well as the trial judge) on notice that at least there is a theoretical possibility of conviction of felony-murder in the second degree.”
Id. at 316. Applying that reasoning here, we conclude that there was no error. Nor do we find a substantial likelihood of a miscarriage of justice arising from the absence of an instruction regarding felony-murder in the second degree premised on other felonies that were not punishable by life in prison. The overwhelming evidence in this case was that the defendant committed an attempted armed robbery.
Conclusion. We affirm the defendant‘s conviction of felony-murder in the first degree and the denial of his motion for a new trial.
So ordered.