COMMONWEALTH vs. PEDRO VALENTIN
Supreme Judicial Court of Massachusetts
December 8, 2014
470 Mass. 186 (2014)
Suffolk. October 6, 2014. Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
At a murder trial, the defendant‘s counsel was not ineffective in failing to impeach a Commonwealth witness as to his testimony concerning a statement made by the defendant, where, given that the case involved multiple avenues of defense, more than one key witness, and general impeachment of all of the Commonwealth‘s witnesses based on inconsistent statements, counsel‘s decision was not manifestly unreasonable and, in any event, did not so impact the outcome of the trial as to create a substantial risk of a miscarriage of justice. [188-194]
At a murder trial, the substitution, without the defendant‘s consent, of defense counsel‘s partner to stand in for her during a portion of jury deliberations was not structural error warranting a new trial without a showing of prejudice [194-197]; further, the defendant did not receive constitutionally ineffective assistance of counsel or suffer any appreciable prejudice as a result of the substitution, which occurred during a time that the judge provided reinstruction on two legal issues on which he previously had instructed the jury in the presence of trial counsel [197-200].
INDICTMENTS found and returned in the Superior Court Department on October 23, 1991.
Following review by this court, 420 Mass. 263 (1995), a motion for a new trial, filed on January 6, 2012, was considered by Patrick F. Brady, J.
A request for leave to appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk.
Dennis Shedd for the defendant.
Paul B. Linn, Assistant District Attorney, for the Commonwealth.
CORDY, J. The defendant‘s conviction of murder in the first degree was affirmed by this court in 1995. See Commonwealth v. Valentin, 420 Mass. 263 (1995). In 2012, he filed a motion for a new trial, which was denied. The case is now before us pursuant
We conclude that trial counsel did not render ineffective assistance in failing to impeach a witness as to one of his statements, where counsel‘s decision was not manifestly unreasonable and, in any event, did not so impact the outcome of the trial as to create a substantial risk of a miscarriage of justice. We also conclude that the substitution of trial counsel‘s partner to stand in for her during jury deliberations was not one of structural error warranting a new trial absent a showing of prejudice. Further, considering the claim as one of ineffective assistance of counsel, we conclude that the defendant did not receive constitutionally deficient assistance or suffer any appreciable prejudice as a result of the substitution. Accordingly, the defendant‘s motion for new trial was properly denied.
Background. In October, 1991, the defendant was indicted on charges of murder in the first degree,
1. Evidence at trial. The facts of this case are set forth in our decision in Valentin, 420 Mass. at 265-266. In summary, in July, 1991, Timothy Bond stole cocaine from Angel Ruidiaz, who was selling drugs on behalf of the defendant‘s brother, Simon. Though Ruidiaz paid Simon for the stolen drugs, Simon stated that he was “still going to get” Bond.
Later that month, Bond went to Metcalf Court in the Jamaica Plain section of Boston with his friend Kenneth Stokes and joined a group of others who were sitting on a wall, talking and drinking. Shortly thereafter, Simon and the defendant approached Bond from behind, and Simon shot Bond in the back of the head. Bond then fell to the ground and Simon shot him once more in the head. Stokes testified that the defendant subsequently stomped on the victim‘s head, saying, “Die, motherfucker,” and then fled with Simon. While running away, the defendant said to Simon, “Man, put the gun away, the police are coming.”
At trial, the defendant‘s primary defense was alibi. He called three witnesses to testify that he was elsewhere playing dominoes at the time of the shooting. The Commonwealth called four witnesses (including Stokes) who were present at the shooting. Each of them testified that the defendant “kicked” or “stomped” on Bond‘s head after Simon fired the second shot. Only Stokes
2. Role of trial counsel‘s law partner. On the second day of jury deliberations, trial counsel, Frances Robinson, asked permission from the judge to have her law partner stand in for her. Her partner had not done any work on the case, but had discussed it with Robinson. The judge granted this request. The judge did not seek the defendant‘s consent to the substitution on the record.1
While substitute counsel was standing in, the jury asked to be reinstructed on both joint venture and premeditation. With substitute counsel present, the judge provided supplemental instructions on both topics. After the judge provided these reinstructions, substitute counsel asked to preserve any objections that Robinson had made previously to the joint venture and premeditation instructions in the main jury charge. The judge assured substitute counsel that he was not waiving any of these objections. Later that afternoon the jury found the defendant guilty as a joint venturer in premeditated murder, and not guilty of assault and battery by means of a dangerous weapon.
In January, 2012, the defendant filed a motion for a new trial, which was denied without a hearing on February 6, 2013. Later that month, the defendant filed a petition for leave to appeal under
Discussion. As this case comes to us on appeal from the denial of a motion for a new trial and alleges errors that are grounded in the record that was before this court in its plenary review, we review it under the standard of “substantial risk of a miscarriage of justice.” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
1. Impeachment of Stokes. We turn first to whether the defendant was denied effective assistance of counsel as a result of trial counsel not impeaching Stokes‘s testimony attributing the statement, “Die, motherfucker,” to the defendant. This testimony had obvious relevance to the defendant‘s shared intent with his brother in the murder of Bond. While at trial Stokes testified that the defendant had said this, he had not told this to the police who interviewed him immediately after the shooting, saying then only that the perpetrators “ran away.”
In Strickland v. Washington, 466 U.S. 668, 686 (1984), quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970), the United States Supreme Court recognized that the right to counsel in a criminal case is the right to “effective assistance of counsel.” To establish a claim of constitutional ineffectiveness, the defendant must establish that his attorney‘s performance fell “below an objective standard of reasonableness” such that there is a “probability sufficient to undermine confidence in the outcome.” Id. at 688, 694. The court emphasized that “[j]udicial scrutiny of counsel‘s performance must be highly deferential” and that “the distorting effects of hindsight” must be avoided in evaluating a claim made after a trial in which attorney‘s defense strategy was proved unsuccessful. Id. at 689.
When evaluating a claim of ineffective assistance of counsel arising under both the Sixth Amendment to the United States Constitution and
Although the failure to pursue an “obviously powerful form of impeachment” can theoretically rise to the level of unreasonableness that would constitute ineffective assistance, we have repeatedly stated that, generally, the failure to impeach a witness does not, on its own, constitute ineffective assistance. Fisher, 433 Mass. at 357. See Commonwealth v. Jenkins, 458 Mass. 791, 805-808 (2011), citing Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). Ultimately, this is because the “[i]mpeachment of a witness is, by its very nature, fraught with a host of strategic considerations to which we will, even on § 33E review, still show deference” and “it is speculative to conclude that a different approach to impeachment would likely have affected the jury‘s conclusion.” Fisher, supra. Here, we cannot say that trial counsel‘s decision not to impeach Stokes on the statement in question was “manifestly unreasonable” such that her assistance was ineffective. Acevedo, 446 Mass. at 442.
In an affidavit submitted in connection with the defendant‘s motion for a new trial, trial counsel explains: “I did cross examine Stokes extensively on his not having made statements consistent with the testimony he gave at trial. In reviewing the transcript, I believe that I did not cross examine him specifically on not having said ‘[D]ie, motherfucker’ because I had gotten the point across that his statement was not the same. I do not believe that further cross examination on the statement . . . would have
However, the defendant notes that trial counsel did end up repeating the “Die, motherfucker” statement in her closing in an attempt to discredit it, and did not discuss alibi until the end of her argument. The manner in which the trial ultimately played out after Stokes‘s cross-examination is of little weight in our analysis of whether it was “manifestly unreasonable” for counsel to have cross-examined Stokes the way she did at the time of his testimony. This is particularly so where she conducted a thorough impeachment of Stokes based on a series of inconsistent statements, thereby casting doubt on the veracity of his over-all testimony.
Even if it was unreasonable for counsel not to impeach Stokes‘s specific statement, we cannot say that this error led to a substantial risk of a miscarriage of justice. There is no question that the “Die, motherfucker” statement was evidence that went directly to the question whether the defendant had the necessary mental state to support a finding of guilt as a joint venturer. The defendant cites to Commonwealth v. Reaves, 434 Mass. 383, 391-392 (2001), arguing that a conviction of murder in the first degree requires a finding that he had to share the mental state of “intent to kill and premeditation” with the principal. He further contends that if Stokes‘s statement had been more thoroughly discredited through additional impeachment, the Commonwealth could not have convinced the jury that the defendant had the requisite mental state to support his conviction. We disagree.
In Reaves, this court stated that the “jury may infer the requisite mental state [for a joint venturer] from the defendant‘s knowledge of the circumstances and subsequent participation in the offense.” Id. at 392, quoting Commonwealth v. Longo, 402 Mass. 482, 486 (1988). Accordingly, in the instant case, even though the specific statement was not impeached, there was substantial2
The defendant points to several cases in which this court did conclude that failure to pursue an avenue of witness impeachment could constitute ineffective assistance. However, each of these cases is appreciably different from the instant case. For example, in Commonwealth v. Ly, 454 Mass. 223, 229-231 (2009), the defendant‘s primary defense to a charge of indecent assault and battery was that the complainant had called him multiple times after having sexual relations with him, saying that she wanted to marry and move away with him, and that she did not bring a complaint until after he refused. The attorney in Ly failed to summon these crucially relevant telephone records and therefore was unable to impeach the complainant when she denied ever calling the defendant after the incident. Id. at 229. Accordingly, this court found that the failure of counsel to impeach the complainant using telephone records was ineffective assistance, noting that the “centrality of the telephone calls to the only issue in the case is apparent, and should have been apparent to trial counsel before the case began.” Id. at 230. See Commonwealth v. Nwachukwu, 65 Mass. App. Ct. 112, 116-117 (2005) (ineffective assistance of counsel where attorney failed to obtain records that contradicted complainant‘s testimony and therefore failed to impeach her though her testimony and credibility went to heart of case).
Unlike in Ly where there was only one disputed issue that depended completely on the complainant‘s credibility, there were several disputed issues here other than Stokes‘s credibility, and each could have been established in a variety of ways. Whether the defendant actually made the statement in question was not the linchpin of the defense. Defense counsel presented several alibi witnesses, who, if believed, would have rendered anything that
The defendant also cites to Commonwealth v. Sena, 429 Mass. 590 (1999), S.C., 441 Mass. 822 (2004). In Sena, although other witnesses placed the defendant at the scene of the crime, only one saw the defendant shoot the victim. Id. at 592. Prior to trial, the witness had made a statement to a defense investigator that contradicted his trial testimony. Id. at 591-593. After already having been admonished twice by the judge to comply with a pretrial discovery order, defense counsel gave prosecutors a report of the eyewitness‘s earlier statement on the final day of trial. Id. at 592-593. Given the judge‘s previous warnings to comply with the discovery order and defense counsel‘s extremely untimely provision of the report, the judge did not permit defense counsel to question the investigator regarding the report and defense counsel was unable to use it to impeach the eyewitness himself. Id. at 593-594. Ultimately, this court ordered a new trial, as, given counsel‘s missteps, we could not be “substantially confident that, if the error had not been made, the jury verdict would have been the same,” id. at 595, quoting Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998), as the preclusion of the reports “had a tangible effect on [the defendant‘s] defense,” Sena, supra.
Sena is readily distinguishable from the present case. In that case, the attorney‘s error was not merely a strategic decision. The ultimate prejudice to the defendant arose from his attorney‘s failure to comply with a discovery order. As a consequence, defense counsel was unable to use the investigator‘s report to cross-examine the eyewitness or to examine the investigator. Id. at 594-595. Although the eyewitness had already been impeached and some of the facts from the report otherwise had been admitted in evidence, the addition of the investigator‘s report would have permitted the jury to completely reject the sole eyewitness‘s testimony rather than just call it into question. See id. at 595.
Finally, the defendant analogizes his case to a series of United States Supreme Court cases under the confrontation clause of the Sixth Amendment in which a judge‘s refusal to allow impeach-
Given that this case involved multiple avenues of defense, more than one key witness, and general impeachment of all of the Commonwealth‘s witnesses based on inconsistent statements, defense counsel‘s strategic decision not to impeach Stokes‘s particular statement was not “manifestly unreasonable” such that her assistance was ineffective. Moreover, even though defense counsel did not pursue an otherwise available avenue of impeachment, and although in hindsight that may not appear to have been wise, we cannot conclude that this decision so impacted the outcome of the case that there was a “substantial risk of a miscarriage of justice.”
2. Substitution of trial counsel. The United States Supreme Court has found that a criminal trial is inherently unfair if the defendant is denied counsel at a “critical stage” of the proceedings, meaning that counsel either is totally absent or is prevented from assisting the accused at that time. United States v. Cronic, 466 U.S. 648, 659 n.25 (1984). Such denials of counsel constitute structural error and require no showing of prejudice to warrant reversal. Id. at 658-660, 662.
In Massachusetts, jury deliberations have been found to be a critical stage of the proceedings, at least when the jury communicate a request that is of legal significance. Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 632 (2000). See Commonwealth v. Floyd P., 415 Mass. 826, 833-834 (1993). The assistance of counsel in these circumstances requires the judge, before responding to the jury‘s communication, to consult with counsel as to an appropriate response.
a. Structural error. The defendant argues that even though he had counsel during every stage of jury deliberations, he was constructively denied counsel because the judge did not obtain his informed consent to the substitution of counsel and substitute counsel was unfamiliar with the case. Further, even if the Sixth Amendment does not require a finding of structural error here, the defendant argues that art. 12 is given a broader reading than the Sixth Amendment.
The Commonwealth concedes that jury deliberations are a critical stage of the proceedings, such that denial of counsel would warrant automatic reversal. However, the Commonwealth argues that because the defendant did not raise the issue of informed consent to the substitution of counsel in his motion for a new trial, the single justice was prevented from determining whether the issue was new and substantial as required by
On the merits of the defendant‘s claim, the Commonwealth argues that he was not constructively denied counsel because substitute counsel, a licensed lawyer, was present and competent to represent him at that stage. The Commonwealth additionally argues that even though art. 12 may afford greater protections than the Sixth Amendment does, the defendant is still required to show that the substitution of counsel resulted in the forfeiture of a substantial defense, which the defendant has not shown.
Trial counsel‘s affidavit indicates that the defendant at least knew about the attorney substitution, but it is apparent that the judge did not obtain the defendant‘s consent on the record before permitting it. The defendant has not cited to any case in which a court has held that the absence of informed consent to substitute counsel mandates
We cannot say that the substitution of counsel in this case amounted to such a high order of unfairness that our confidence in the adversary process itself is in doubt or that there was a substantial risk of a miscarriage of justice. While the court in Cronic acknowledged that “[c]ircumstances of [this] magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial,” Id. at 659-660, constructive denials of counsel that meet that order of magnitude are rare. In Cronic itself, the Court declined to find structural error, even where a defendant was facing a twenty-five-year sentence for mail fraud and was appointed a young attorney with a real estate practice who had only twenty-five days to prepare, while the government had had four and one-half years to investigate the case and review thousands of documents. Id. at 649, 666. Contrast Powell v. Alabama, 287 U.S. 45, 58 (1932) (structural error where defendants charged with atrocious crime and “put in peril of their lives within a few moments after counsel for the first time charged with any degree of responsibility began to represent them“).
The defendant notes several cases in other jurisdictions in which convictions were overturned because an unprepared counsel was appointed at the last minute for the duration of an entire trial. See Hunt v. Mitchell, 261 F.3d 575, 582-583, 585 (6th Cir. 2001); United States v. Koplin, 227 F.2d 80, 86 (7th Cir. 1955);
The defendant‘s argument that art. 12 should provide relief in these circumstances is also meritless. He cites no examples of how a broader reading of art. 12 would help him in this analysis, other than that this court has found denials of the right to counsel amounting to structural error specifically where a trial attorney has a conflict of interest or where the trial judge has not followed strict protocols for forfeiting the right to counsel. See, e.g., Commonwealth v. Means, 454 Mass. 81, 89-97 (2009) (strict protocols apply before defendant can be found to have waived or forfeited his right to counsel); Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982) (where counsel has genuine conflict of interest, no prejudice required to warrant new trial). Both of these cases are consistent with an understanding that constructive denials of counsel rising to a level of structural error occur only where the defendant essentially is denied the assistance of any qualified attorney who could theoretically represent him in a way that does not undermine our trust in the adversary system.
Here, substitute counsel was not fundamentally incapable of representing the defendant‘s interests for the brief period of his representation to warrant a finding of structural error. And, as found by the motion judge, substitute counsel did actively render some assistance to the defendant by ensuring that objections to the instructions made earlier by trial counsel were preserved. Any error in permitting substitute counsel to stand in for trial counsel was not structural and therefore requires a showing of prejudice in order to justify a new trial.5 No such showing has been made.
b. Effectiveness of counsel. Even if the defendant was not constructively denied counsel outright, he still has a right to effective assistance of counsel. Accordingly, we look to whether
Here, substitute counsel represented the defendant for only a portion of the jury‘s deliberations, during which time the judge provided reinstruction on two legal issues on which he had previously instructed the jury in the presence of trial counsel. The defendant claims error as to the “joint venture” reinstruction, noting that while trial counsel made sure the judge instructed that both “guilty” and “not guilty” verdicts were options when considering whether the defendant should be convicted of this charge, the judge did not include the option of “not guilty” when reinstructing on joint venture and substitute counsel did not object. This omission on the part of substitute counsel arguably is not even error, because the jury were previously instructed both generally and in the context of joint venture that they could find the defendant not guilty and had to if the Commonwealth failed to prove any element of murder beyond a reasonable doubt.
Further, it is not clear that the judge would have repeated the full instruction he had given previously even if substitute counsel had objected. The jury‘s question was specifically, “Your Honor, could you please refresh [us] on the laws on the elements of the joint venture in detail.” The judge could have interpreted this question to be fully answered by only walking through the various elements of joint venture. Therefore, we cannot say that substitute counsel‘s failure to object likely influenced the jury‘s verdict in any significant way.
The defendant also claims error as to the judge‘s supplemental premeditation instruction. The judge intermingled a definition of malice generally within his explanation of premeditated malice and included a statement, only in the supplemental premeditation instruction, that malice generally could be “a specific intent to inflict grievous bodily harm.” Thus, the jury could have possibly understood premeditated malice to include intent to inflict grievous bodily harm, so long as the “deliberation and reflection”
In support of his argument, the defendant cites Commonwealth v. Johnson, 435 Mass. 113, 119, 121-122 (2001), in which this court held that a premeditation instruction that included all three prongs of malice created a substantial likelihood of miscarriage of justice. However, Johnson was decided long after the defendant‘s trial and substitute counsel could not possibly have been aware of it at that time. As noted by the Commonwealth, this court did not expressly state until 1998 that jury instructions should make clear that “murder in the first degree by reason of deliberate premeditation relates only to the first prong of malice,” a specific intent to kill. Commonwealth v. Diaz, 426 Mass. 548, 553 (1998). Still, substitute counsel could have argued that the supplemental instruction was confusing. Accordingly, we consider whether not pursuing this argument was “manifestly unreasonable” in a way that gives rise to a “substantial risk of a miscarriage of justice” (citation omitted). Acevedo, 446 Mass. at 442.
Given that this court had yet to articulate expressly that jury instructions on deliberate premeditation clearly should relate only to the first prong of malice, it is an unreasonably high standard to expect “an ordinary fallible lawyer” to have anticipated this future holding and objected to the jury instructions. See id., quoting Saferian, 366 Mass. at 96. Substitute counsel would not have had a clear statement of law on which to rely in arguing that the judge erred in mentioning grievous bodily harm in a way that could have been interpreted to apply to premeditated murder.
Even if this was error on substitute counsel‘s part, we cannot say that there was a substantial risk of a miscarriage of justice. In a postappeal, collateral attack that raises an issue regarding jury instructions, we “consider whether ‘a reasonable juror could have used the instruction incorrectly,’ ” in light of “the instruction as a whole and in the context of the trial.” Commonwealth v. Gagnon, 430 Mass. 348, 349-350 (1999), quoting Commonwealth v. Smith, 427 Mass. 245, 249 (1998).
Considering the instructions in this case in light of how the jury would have perceived them and in the context of the entire trial,
Thus, even though the judge‘s supplemental instructions could have more clearly distinguished between general malice and premeditation, the jury would have understood from the language of the judge‘s supplemental instruction that deliberate premeditation relates to an intent to kill and not an intent to inflict grievous bodily harm. Although the defendant surmises that trial counsel might have objected to portions of the supplemental instructions given her detailed familiarity with the case, the fact that a certain attorney might have done a better job on the defendant‘s behalf is not the standard for ineffective assistance of counsel. Even though he could have made certain objections regarding the supplemental instructions, substitute counsel‘s actions did not fall below what we would expect from an ordinary fallible lawyer, and the defendant was not significantly prejudiced by substitute counsel‘s performance such that he is entitled to a new trial.
Conclusion. The order denying the defendant‘s motion for a new trial is affirmed.
So ordered.