*1 App. v. Stirk. Gregory N. Stirk. vs. Middlesex. 7, 1982. 30, 1983. June June & Present: Hale, C.J., Grant, Dreben, JJ. Law, counsel,
Constitutional Assistance of Confrontation of witnesses. Practice, Criminal, counsel, Interest. Assistance of In- Conflict Evidence, structions to jury. Relevancy materiality. and There was no actual conflict of interest between the defendant a mur-
der attorney case an who casе for short period of time during stages initial of police investigation and who had advised the defendant before defendant made a statement to police admitting killing, inasmuch as at time attorney ad- vised defendant the attorney was no longer no longer considered himself to be one. dissen- J., [283-284] Dreben, ting. The Commonwealth’s failure in a murder case cаll as a an witness
individual who had certain to police investigating information the case did not deprive the defendant of right his constitutional confront accuser. [284] the trial a murder case in defendant admitted the killing
but claimed that he had acted in self-defense when the victim attacked advances, him after the defendant had refused victim’s homosexual there was no error of testimony exclusion of the defendant’s boy mother as a defendant had been subjected to a “homosex- ual assault.” [285] case,
At the of a phrases murder certain in the judge’s instruction improperly to the did not jury proof shift burden of on the issue of from malice the Commonwealth to the defendant. [285-286] found returned in the Court Superior Indictment on October 1979. Department Prince, The case was tried before J.
Steven defendant. Rappaport J. Rossi, L. Robert Assistant District for the Com- Attorney, monwealth. has from his convic- appealed
Hale, C.J. tion murder in the second on an indictment degree charg- v. Stirk. *2 of we were opin After the murder. ing appeal argued, be the case cоuld not the issue in properly ion that principal to made of fact were be by decided unless specific findings there conflict of the to whether was a judge Sandini, a mem the defendant and a Mr. interest between the advice ber had defendant Bar, of who legal given See that he killed victim. to his admission just prior 165, 167-168 Commmonwealth v. Mass. Hodge, an of re We rеmanded the case to the trial order by judge marg set out mand, of which are in pertinent parts in.1 held at the defendant
The trial a which hearing judge Mr. The Commonwealth called Sandini a witness. then made com- called three officers. police judge of and ultimate fact prehensive findings subsidiary have been made a of the record on appеal. part
There was evidence at trial that on the of morning August 30, 1979, a in was found in a sand Hudson. The body pit victim’s trousers were down around his ankles. An autopsy five revealed cause of death to have been stab wounds. victim, After of the three of- learning identity police ficers went where found some T-shirts apartment they In the course of the “Westboro State stamped Hospital.” the officers interviewed a David ensuing investigation, whom, Friedman from other received a among things, they of the which the victim had been automobile description a seen to enter as a beat old Chevrolet “with lot of up junk fit a which the officers back.” That car description knew to Mr. Sandini. The also knew Mr. belonged police aware the victim. Sandini were knew They home, there Mr. Sandini’s sometime proceeded arriving Court, where is Superior “The case is remanded fact, question gen make detailed whether there was findings on interest, on the him and uine conflict of basis of evidence earlier heard may present to be heard on a further at which the further hearing partiеs evidence, or particularly with to whether Mr. Sandini knew had respect when he reason to believe that he was a time given gave legal advice.” 16 Commonwealth o. Stirk. after 31.2 Mr. Sandini to the August responded a.m. knock on the door and was told Officer Sharon of the Marlborough Lieutenant police Turner and Officer Donahue of the Hudson he were investigating homicide wanted to ask him they some questions. told Mr. Sandini that the They victim been seen getting a motor into vehicle similar to his in the hours early morning 30. At insistence, Mr. Sandini’s August Miranda warn- him, were ings Officer told him Sharon although that he was not a then informed the suspect. that he officers had been all asleep question. night *3 this about time the room, defendant walked into the and the defendant, officers that the and Mr. San- recognized dini, the fit had received the driver description they the car. Miranda were then the defend- warnings to ant to and Mr. at the Sandini same time. Both Mr. Sandini and Stirk answered Mr. San- questions willingly, although dini at that time was disturbed “because he felt he was a which Officer Sharon denied.”
The the defendant told he had been Mr. police using car as Sandini’s his own vehicle needed He denied repairs. the victim then, and after a from reminder Mr. knowing Sandini, admitted that he did. said He that he could not and sleep hours of thirtieth had early morning taken Mr. Sandini’s car to a snack.” “get
The defendant then was informed had a police have witness wanted to look at him. He they but agreed he said that to a to site” but would back in be go “job time. he While was the defendant had his hair cut. gone, He later said he had done so he because was to march in the Labor Day parade. defendant,
On the witness said that the de- observing fendant looked like man he but saw that his hair looked Mr. different. Sandini was not time. this present after noon vol- defendant Shortly thirty-first, went to the further station for untarily Marlborough police point, summary judge’s findings From this our is taken from the after remand. 16 Mass. Miranda warnings. he was where again given
questioning, to to the sta- Sandini come 2:00 he called Mr. At about p.m. Sandini When Mr. to him some tion and bring cigarettes. the defendant. arrived, he with conferred privately time as for a short was period conference interruptеd them. left to obtain had not cigarettes brought defendant, San- conference, but not Mr. this to Prior After this dini, Miranda warnings. was again given Mr. San- the defendant conference questioned directed none of the with questions being dini’s presence, be ex- were defendant about Mr. Sandini. He warrant officers a cused when one of the mentioned getting there Mr. Sandini said sеarch Mr. Sandini’s automobile. warrant them was no need and gave permission get the car. defendant also to the search. search agreed State A and a marked “Westboro blood stained shirt shirt former, the said were found. As to the Hospital” on his that the blood stains were from bleeding pimple latter shirt the defendant back. When the was produced, hаd a if he could confer with Mr. Sandini. pri- asked They he could discussion, vate after which Mr. Sandini asked if or two so take the defendant home day might denied, talk to him some more. That request *4 A was defendant was arrested. further conference private defendant, held between Mr. Sandini and following a the defendant Miranda document and which signed rights said, it,” “I he had in self- thеn did that acted adding defense. trial, other at which defendant was represented by he
counsel, the admitted the but claimed defendant killing him after had acted in self-defense when the victim attacked homosexual ad- defendant had refused the victim’s vances. to The defendant claims he was denied right
1. that in an un- to “advise him the assistance of counsel imрartial Mr. was a since manner.” He that biased argues interest homicide, he conflict of had a suspect genuine not, Mr. Sandini was that of the defendant and that with therefore, in a position and, “unrestricted” advice give further, Sandini, as a had an interest in for the crime placing on the responsibility defendant. Mr. not, Sandini thus was the defendant in a argues, position advise in an unbiased manner. That argu- ment would warrant a trial if new it were based on a sound However, factual premise. found that for except a short of time period initial of the investi- during stages Mr. Sandini was gation, not and knew that he not a The suspect. concluded “that there judge ultimately was no conflict of interest between Sandini and Stirk at a time he when thе defendant advice.” gave legal all of which were judge’s findings, warranted evidence, thus remove the factual from the underpinnings defendant’s and for that reason the argument argument fails. defendant, makes a further he argument that,
asserts of above claim part because Mr. San- dini had been from the suspended law practice time that he him, advised thе defendant was denied the to counsel. Sandini testified that he had right (Mr. from the 29, 1979, law on March suspended practice dues” “annual Board of Bar failing pay Overseers and was reinstated on October 1979.) The defendant makes no that this in af- argument any way fected Mr. Sandini’s or his of the ability representation legal defendant. As the defendant makes no argument beyond assertion, bare it does not rise to the level of appellate argu- Banks, ment. Tobin Commissioner Mass. 909 2. The Commonwealth did call David Friedman as a witness, which rise to the defendant’s claim that he gives was denied his constitutional to confront his accuser. right There is record indicate the defendant *5 nothing had desire or need to have Friedman The Com- any testify. had no monwealth to call witness. duty any particular v. Sacco, 128, 259 Mass. 141 (1927). defendant knew who Friedman was and could have called him to considered it desirable or testify necessary. 16 Mass. v. Stirk.
Commonwealth in the clos- error claims 3. The defendant prosecutorial no to which registered. objection argument, ing there of was not improper, nоw complained argument Commonwealth of a miscarriage justice. is no risk Freeman, 556, 564 352 Mass. the exclusion of prof- as error
4. The defendant assigns the de- that as a of his mother youngster fered testimony He assault.” to a “homosexual fendant had been subjected have enabled the would jury that the “testimony argues assault the deceased’s homosexuаl upon determine whether case, of this the circumstances the defendant was likely, fear, fright such a state of anger, to have passion, provoked have excitement as would eclipsed capacity or nervous would have The testimony for reflection or restraint. time actual state of mind at the relevant to the defendant’s the deceased.” Assum- he delivered fatal wounds upon homosexual, the that the “assault” was in fact ing arguendo too remote. deemed the offered testimony judge rightly Moreover, tender of in the absence of any expected expert an earlier assault’s as to the likelihood of having testimony contended, irrelevant. See the effect the evidence was Trainor, (1978); rev. Evidence 1976). Wigmore, (Chadbourn § the defendant claims that two 5. Finally, phrases (“so, different, to a unless the evidence in case leads you jurors the evidence of all the facts conclusion” and “unless by contrary it’s minds” latter was circumstances disproved your [the once instructions to the shifted repeated]) judge’s jury to him.3 burden of of malice from proof following phrases appear: 3The is the context in which those rule, in- person ordinarily “As a it is reasonable to infer that a general probable consequences knowingly tends all the natural and of his acts done, in the case done or omitted to be so unless evidence knowingly different, draw you jurors contrary jury may leаds to a conclusion intends all the natural and prob- the inference and find that accused standing pos- able which one in like circumstances consequences any have from sessing knowledge reasonably expected like should result act done or omitted to be done the accused.” knowingly deadly weapon of a killing “Where the is caused the intentional use — — knife, deadly weapons may are malice be inferred unless gun *6 286 16 Mass. App. Callahan, Commonwealth 821, on v. 380 Mass. Relying Commonwealth, 822-826 and (1980), DeJoinville Mass. 248-249 the defendant seeks to excuse the (1980), failure of to the trial counsel because object charge “constitutional defendant relies . . . theory upon was not at the time of thе instant sufficiently developed trial.” He that the raise a argues quoted phrases “presump malice”, tion of for the opposed permission jury draw an inference of malice.
We note first that for the instruction except presump tion of innocence the word does not “presumption” appear in the We also note that the аnd judge’s charge. judge counsel to have been well aware appear judge’s “must not be so as establish charge phrased presump tion in favor of the Commonwealth which the defendant Callahan, must overcome.” at 825. At a conference held with counsel before arguments stated that wherever word charge, “pre defendant’s instruc requеsts sumption” appeared The defendant’s tions would use “inference” in its place. Callahan, id. counsel concurred. For the reasons stated in aware, 824-826, the court counsel were bound to be were, of the of the strictures they obviously importance in the use involved word “presumption.” We have read the crafted judge’s carefully chargе the im- have concluded that it could not have jury that it relieved the Commonwealth of its burden of pression is the reason defense In all why proof. probability did counsel not object.
Judgment affirmed. I concur in the Dreben, opinion (dissenting part). J. from the on the of this case of the phases apart majority your it’s disproved of all the facts and circumstances evidence minds.” v. Stirk. am in their conflict. I unable acceptance
alleged join *7 conflict that “there was no the ruling judge’s time Stirk in between Sandini and Stirk” at the was interest the at station Marlborough police prior terrogated This ultimate is “mixed determination confession. ruling fact,” 446 U.S. Sullivan, of law and Cuyler to a even rise “may give meaningful appeal, (1980), are a case where findings beyond in judge’s] subsidiary [the Moon, challenge.” practical 751, 756 (1980). notes, the the find-
As subsidiary opinion judge’s majority he in a first indicate Mr. Sandini believed was suspect ings at the time he and Stirk were murder investigation degree in Indeed, the his ultimate findings first questioned. the stated, “In initial stages “conclusions fact”) (labeled . . . Sandini had police interrogation [Mr.] to believе and believe he was a even reason did suspect he not.” assured him was though police which I careful subsidiary findings, Despite judge’s I cannot with his “conclusion of fact” fully accept, agree knew in the that Mr. Sandini he was not afternoon and, therefore, no actual conflict existed when acted the defendant’s adviser. San- Wholly discounting legal dini’s at trial at testimony supplementary hearing, he did consider free until Stirk that himself of suspicion confessed,1 I neither the evidence nor conclude that his conclusion judge’s subsidiary findings support conflict found to have existed morning dissipated afternoon. and the con- The first murder crime involved was degree The knew nections to Mr. Sandini were substantial. police hаd driven him that Mr. had known victim and was last seen alive in his car on occasions. victim prior testimony through was threat of sub Mr. Sandini’s at trial obtained con voluntarily hearing but remand. He poena, he testified he was de sistently (rejected by took not the position judge) finding legal fendant’s adviser. that Mr. Sandini acted judge’s evidence. Stirk’s counsel is warranted
in Mr. Sandini’s Chevrolet.
Stirk
аdmitted
Although
he had used the
automobile on
Stirk
night
question,
was a close associate and shared an
with Mr.
apartment
Sandini. Even if Stirk had driven the car and was the prime
there was
to indicate that
one
nothing
only
person
in the murder. Mr. Sandini’s
implicated
knowledge
that he had been home
alone
bed would not
much
carry
force if an alibi were
needed.
thе time of the interroga-
station,
tion at the
the crime had not
been solved.
yet
When the officers left in the
Stirk was not under
morning
arrest and was free to leave. This was also true in the after-
fact,
noon.
In
Stirk and Mr. Sandini were about to
home
go
to Mr. Sandini’s
to have his car searched.
*8
prior
volunteering
In
circumstances,
these
I
but
cannot
conclude that
interests of Mr. Sandini and those of Stirk were divergent.
Until
solved,
the crime was
Mr. Sandini could reasonably
Hurt,
Cf. United States v.
consider himself a
543
suspect.
162,
F.2d
167
Cir.
v.
Duffy,
(D.C.
1976);
483
170,
Pa.
It was in his
inter
strong personal
matter,
est to have a
resolution of the
a resolution
speedy
which could be achieved
an arrest and a confession.
different;
Stirk’s interests were
counsel with un
obviously
divided
would
advise
а confession.
loyalties
clearly
against
worth his salt will tell the
in no
“[A]ny lawyer
uncertain terms to make no statement
under
any
Illinois,
Escobedo
478,
circumstances.”
v.
378 U.S.
Indiana,
338 U.S.
49,
Watts
v.
(1964), quoting
(1949)
See
(Jackson, J.,
part
dissenting
part).
concurring
Brant,
also Commonwealth v.
558,
8 Mass.
571 &
App.
rev’d,
876,
n.7
380 Mass.
J.,
(1979) (Brown,
dissenting),
denied,
cert.
Accordingly, my strated tensions between the interests of Mr. Sandini and aсtual, of interest. himself which show an relevant conflict Michel, See 447, 451-452 381 Mass. and authorities cited. See also (1980), 386 Mass. 167-168 Hodge, (1982).2 protections 2 note that if the of art. 12 of the Massachusetts Declara here, he re- tion of the defendant need not show what advice Rights apply conflict, Since I am outvoted on the I need not question Commonwealth, decide the issues raised particularly conflict, the issue of waiver of have to be decid- may ed even if an actual conflict of is interest found. *9 ceived from Mr. Sandini. “[H]aving established a conflict of in
terest,
required
to prove neither actual prejudice
[the
nor
defendant]
adverse effect on his . . . counsel’s performance . . . .” Hodge,