423 Mass. 17 | Mass. | 1996
In 1976 the defendant, Ronald R. Roberts, was convicted of unarmed robbery and murder in the first degree. We affirmed the murder conviction. Commonwealth
The facts of the case are detailed in Roberts, supra. At issue here is whether the motion judges erred in denying the defendant’s motions for a new trial. Those motions allege: (1) the trial judge unconstitutionally shifted the burden of proof by using “if you find” language in the voluntary intoxication part of his jury charge, and (2) trial counsel provided ineffective assistance by failing to impeach three prosecution witnesses. We affirm the denial of the defendant’s motions.
Jury instructions on voluntary intoxication. The defendant claims that the judge’s charge regarding the effect of voluntary intoxication on the capacity to premeditate unconstitutionally placed on him the burden of proving absence of premeditation. The defendant did not object to the intoxication instruction at trial. His appeal was reviewed pursuant to G. L. c. 278, § 33E.
The judge charged the jury as follows: “Now, there was some testimony about drinking. And since this crime requires a specific state of mind and a specific intent and a specific mental process, it is up to you to decide if the defendant’s brain was so addled with liquor that he was unable to form that specific intention or to go through that specific mental process and, if so, you could not find him guilty of first degree murder . . . if you find that the defendant was so intoxicated as to be unable to go through this mental process and reach this mental state, you would have to find that the Commonwealth had not proved murder in the first degree. . . .”
Here, the defendant asserts that the jury might have interpreted the “if you find” instruction as placing on him the burden of proving a lack of capacity to premeditate. We do not agree. The judge’s instructions, read in their entirety, stressed that the Commonwealth bore the burden of proof on each element of the alleged crimes. See Commonwealth v. Waite, 422 Mass. 792 (1996) (“finding” language best left unused, but no reversible error where instructions emphasized Commonwealth’s burden of proof beyond a reasonable doubt on every element of crime); Commonwealth v. Mello, 420 Mass. 375, 387-388 (1995) (“Although there was ‘finding’ language in the jury instruction, the charge as a whole clearly established that the Commonwealth had the burden to prove that the defendant had the specific intent to premeditate beyond a reasonable doubt”). The summations of the prosecutor and defense counsel also emphasized that the Commonwealth, not the defendant, bore the burden of proof. There was no error in denying the motion for a new trial on this ground.
Ineffective assistance. “Once we have given a defendant convicted of murder in the first degree full review pursuant to
The defendant bases his claim of ineffective assistance on the failure of his attorney to impeach three prosecution witnesses. The first two, Janice Roberts and John Vega, testified that the defendant told them three or four times that he had killed the victim by a rifle shot which caused “his brains [to] blow all over the walls.” The defendant, who testified at the trial, said that the murder had been committed by Joanne Gallagher, his girl friend, but that he falsely confessed to Janice and John in order to protect Gallagher.
Two years prior to the trial, Janice and John had been convicted of larceny from the person. G. L. c. 266, § 25 (b) (1994 ed.). They had been sentenced to six-month and one-year probations, respectively, on which they defaulted. They were both in default during the trial. The defendant claims that trial counsel’s failure to impeach Janice and John with their probation violations constitutes ineffective assistance. We do not agree.
Although convictions within the time frames established by G. L. c. 233, § 21 (1994 ed.), may be used to impeach a witness’s character for truthfulness, probation violations may not be so used. Commonwealth v. Ford, 397 Mass. 298, 300-301 (1986). Nevertheless, probation violations may be used
However, in the absence of evidence “indicating] the strong possibility that the witnesses were cooperating with the prosecution in exchange for leniency,” Commonwealth v. Schlieff, 5 Mass. App. Ct. 665, 671-672 n.3 (1977), or that inducements had been offered or promises made, we cannot say that counsel’s failure to attempt to show bias was “manifestly unreasonable.” See Commonwealth v. Daigle, 379 Mass. 541, 545, 546 (1980) (counsel justifiably declined to press claim that witness exchanged testimony for leniency where “evidently no such arrangement existed”). Similarly, we reject the defendant’s claim that counsel was derelict in not demonstrating John’s bias through evidence that John might have been charged with statutory rape. G. L. c. 265, § 23 (1994 ed.). Counsel’s failure to use Janice’s and John’s probation records also did not constitute ineffective assistance of counsel because the defendant admitted that he told John and Janice that he had killed the victim by a rifle shot.
The third witness, Radamus Colon, testified that the defendant told him that he was afraid, and when Colon asked why, the defendant replied that he had gone to the victim’s house, that the victim had pulled out a rifle, that they “had a hassle with the gun,” and that the gun went off. The defendant had denied that he told Colon anything other than that the victim had been shot.
The defendant now contends that trial counsel was seriously negligent in failing to impeach Colon with his two convictions of sale of a Class D controlled substance.
We conclude that the defendant has failed to show that trial counsel behaved in a manner “falling measurably below that which might be expected from an ordinary fallible lawyer.” Haley, supra at 775, quoting Saferian, supra at 96. We also conclude that the defendant has not shown that counsel’s failure to impeach Janice, John, or Colon deprived him of an “otherwise available, substantial ground of defence.” Id-
Orders denying motions for a new trial affirmed.
The trial judge, with Roberts’ consent, placed the robbery conviction on file.
During deliberations, the jury asked the judge to clarify “[h]ow . . . alcohol affectjs] the finding on degrees of murder.” The judge reiterated essentially the same instruction: “You will recall one of the bases for a finding of murder in the first degree is murder committed with deliberately premeditated malice aforethought. And I read you the case that indicated that
We note that the instruction given here is similar to instructions which we have previously approved. See Commonwealth v. Bousquet, 407 Mass. 854, 867 & n.7 (1990); Commonwealth v. Kelcourse, 404 Mass. 466, 469-470 (1989); Commonwealth v. Shea, 401 Mass. 731, 742-743 & n.7 (1988); Commonwealth v. Sylvester, 400 Mass. 334, 336-338 & n.4 (1987); Commonwealth v. Lanoue, 392 Mass. 583, 592 n.6 (1984), S.C., 400 Mass. 1 (1987), and 409 Mass. 1 (1990). See also Commonwealth v. Goudreau, 422 Mass. 731, 735-736 (1996).
Those convictions under G. L. c. 94C, § 32, inserted by St. 1971, c. 1071, § 1, were misdemeanors.