|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Schlieff, 5 Mass.App.Ct. 665 (1977)
Appeals Court of Massachusetts,
Argued
Decided
Angelo P. Catanzaro,
Francis M. O'Boy, Asst.
Dist. Atty., for the Commonwealth.
Before [5
Mass.App.Ct. 665]
HALE, C. J., and KEVILLE and GRANT, JJ.
KEVILLE, Justice.
The
defendant appeals pursuant to G.L. c. 278, ss 33A‑33G, from convictions on six indictments
including those for armed burglary at the dwelling of Mr. and Mrs. Kenneth St.
George and assaults on their persons.
When at
about 10:00 P. M. on January 17, 1974, Mrs. St. George opened the rear door of
their dwelling in the town of Easton, she was confronted by two men wearing
black leather jackets, hats pulled down to their eyebrows and carrying
handguns. She ran screaming into the
living room where her husband was asleep on the couch. That area was well lighted. The men followed her there and ordered the
St. Georges to get on the floor face down.
Mrs. St. George responded immediately, but Mr. St. George did not comply
until ordered to do so a second time.
Once on
the floor, Mr. St. George, for a period of three of four minutes, kept his face
to one side in such a position as to be able to observe the intruders while he
responded to the questions of one of them, later identified as the defendant Schlieff, concerning the location of money,
"dope" and a firearm. The
assailant who had asked the questions kicked Mr. St. George on the face and on
other parts of his body with resulting serious injury to one of his eyes. The intruders remained in the house for about
ten minutes and then fled.
Shortly
after the invasion of their home, the St. Georges, upon being shown a group of
photographs by the police, selected one of them as being that of a man who they
thought looked like one of their assailants.
However, when they viewed the subject in person, they concluded that
they had been mistaken in their photographic identifications. Subsequently[5 Mass.App.Ct. 667] the St. Georges viewed a
large number of photographs on several occasions and identified Schlieff's codefendant.
([FN1])
On March
24, 1974, approximately two months after the assaults, the St. Georges each
selected a photograph of Schlieff from an array of
eleven shown to them at a police station.
Early in April, following those photographic identifications, the St.
Georges were called by the police to a District Court. While there, they identified Schlieff as he was standing among a group of about ten
persons in the hallway of the court house.
About a
week following the St. Georges' identification of Schlieff's
photograph, the police went to his apartment with a warrant for his
arrest. There was evidence that after Schlieff was informed that he was being placed under arrest
and apprised of his constitutional rights, he admitted to a police officer that
a black leather jacket, which the police observed on the back of a chair in the
room, belonged to him.
The
defendant claims that he is entitled to a new trial primarily because his
counsel was inadequate. In support of
that contention he argues counsel's failure to file pre‑trial motions to
suppress (a) the jacket allegedly worn by the defendant during the commission
of these crimes, (b) an admission by the defendant to the police of his
ownership of the jacket, and (c) in‑court identifications of the
defendant by the victims. The defendant
also points to trial counsel's failure to request probation and criminal
records of Mr. St. George as further evidence of ineffective assistance of
counsel.
[1][2] The
standard for evaluation of effectiveness of counsel is clear: "(W)hat is
required in the actual process of decision of claims of ineffective assistance
of counsel, and what our own decisions have sought to afford, is a discerning
examination and appraisal of the specific circumstances of the given case to
see whether there has been serious incompetency,[5 Mass.App.Ct.
668]
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, 315 N.E.2d 878, 883 (1974).
See Commonwealth v. Cross, ‑‑‑ Mass.App.
‑‑‑, ‑‑‑ ‑ ‑‑‑
(1976) ([FNA]),
340 N.E.2d 923 (1976), and cases cited.
The question of effectiveness of counsel is a practical, not a
theoretical, one. Failure to file pre‑trial
motions to suppress does not, ipso facto, constitute inadequate representation,
for counsel is not required to file motions or assert defenses of little or no
value to his client. Id. at ‑‑‑,
‑‑‑ ([FNB]), 340 N.E.2d 923; Saferian, supra, 366 Mass. at 99, 315 N.E.2d 878;
Commonwealth v. LeBlanc, 364 Mass. 1, 14, 299 N.E.2d 719 (1973).
[3] Trial
counsel is not to be judged as ineffective simply because of retrospective
differences of opinion about judgments formed or tactics used by him during
trial. Commonwealth v. Bernier, 359
Mass. 13, 19, 267 N.E.2d 636 (1971); Commonwealth v. McGrath, 361 Mass. 431,
439‑440, 280 N.E.2d 681 (1972). Delle Chiaie v. Commonwealth, 367 Mass. 527, 536, 327 N.E.2d 696
(1975).
[4][5] An
attorney may decide, as part of trial strategy, to forgo voir
dire and pre‑trial motions, and to develop his defenses through cross‑examination. Commonwealth v. McGrath, supra, 361 Mass. at
438‑439, 280 N.E.2d 681; Commonwealth v. Scott, 2 Mass.App.
763, 766, 767, 321 N.E.2d 682 (1975).
Here trial counsel employed the tactic of attacking the credibility of
the Commonwealth's witnesses under cross‑examination rather than relying
upon motions to suppress which were unlikely to succeed. He also called several witnesses through whom
he sought to contradict the Commonwealth's witnesses and to develop an
alibi. Such tactical decisions are not
indicative of ineffective assistance of counsel. Commonwealth v. Bernier, supra, 359 Mass. at
17, 267 N.E.2d 636. Commonwealth v.
McGrath, supra, 361 Mass. at 439, 280 N.E.2d 681. ([FN2])
[6][7][8] [5 Mass.App.Ct.
669] On the motion for a new trial,
it was the defendant's burden to prove those facts which were not agreed upon
or apparent on the face of the record.
The question of credibility at the hearing on the motion was a matter
for decision by the judge. Commonwealth
v. Bernier, supra, 359 Mass. at 15, 16, 267 N.E.2d 636; Commonwealth v.
McGrath, supra, 361 Mass. at 437, 280 N.E.2d 681. We conclude that his denial of the motion for
a new trial is supported by the record, on the strength of which we think it
unlikely that motions to suppress would have been successful, and that failure
to file such motions did not demonstrate inadequacy of counsel. See Commonwealth v. Cross, supra.
[9][10]
Counsel's failure to move to suppress the leather jacket seized in Schlieff's apartment was not indicative of inadequate
representation. The police entered the
apartment with a warrant for Schlieff's arrest. The jacket hung on the back of a chair in the
room where he was placed under arrest.
When police lawfully enter a dwelling, they may seize objects in plain
view if they have reasonable cause to believe that a nexus exists between the
object seized and criminal behavior.
Commonwealth v. Haefeli, 361 Mass. 271, 281,
279 N.E.2d 915 (1972). Commonwealth v.
Ross, 361 Mass. 665, 681, 282 N.E.2d 70 (1972), judgment vacated on other
grounds, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265, aff'd on rehearing, 363 Mass. 665, 296 N.E.2d 810, cert.
denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486
(1973). Harris v. United States, 390
U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067
(1968). In the circumstances, the police
were not obliged to ignore this evidence which was freely observed by them in
the course of their execution of the warrant for the defendant's arrest. See United States v. Thweatt,
140 U.S.App.D.C. 120, 125, 433 F.2d 1226, 1231
(1970).
[11]
Similarly, trial counsel's failure to move to suppress the defendant's
admission of ownership of the jacket did not demonstrate ineffective assistance
of counsel. The judge could have
believed the arresting officer's testimony that he advised the defendant of his
constitutional rights before the defendant's admission that the jacket was his;
and thus [5 Mass.App.Ct.
670] the judge could have found that
a motion to suppress the defendant's admission would have been futile.
[12][13]
The defendant has failed to establish that there was substance to his claim
that the in‑court identifications by the victims should have been suppressed. Such identifications will be suppressed if
the defendant can show that pre‑trial identification procedures were
"so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification." Commonwealth v. DeBrosky, 363 Mass. 718, 725, 297 N.E.2d 496, 502
(1973). Simmons v. United States, 390
U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247
(1968). See now Manson v. Brathwaite, 432 U.S. 98, 113 ‑ 114, 97 S.Ct. 2243, 2252‑2253, 53 L.Ed.2d 140 (1977). However, even if pre‑trial
identification procedures were impermissibly suggestive, the in‑court
identifications will be allowed if they are based upon adequate observation,
independent of those procedures.
Commonwealth v. Roberts, 362 Mass. 357, 364, 285 N.E.2d 919 (1972). Commonwealth v. Botelho,
‑‑‑ Mass. ‑‑‑, ‑‑‑, ‑‑‑
([FNC]), 343 N.E.2d 876 (1976). Cooper v. Picard,
428 F.2d 1351, 1353‑1354 (1st Cir. 1970).
[14][15][16]
The defendant has the burden of establishing that pre‑trial
identification procedures were suggestive.
Commonwealth v. Botelho, supra, ‑‑‑
Mass. at ‑‑‑ ([FND]), 343 N.E.2d
876. Commonwealth v. Underwood, 3 Mass.App. ‑‑‑, ‑‑‑ ([FNE]), 335 N.E.2d 915 (1975). The record here would support findings that
each victim selected Schlieff's photograph from an
array of photographs, and that the identification procedure was free of
suggestiveness on the part of the police.
The record would also support a finding that the confrontations between
the victims and Schlieff in the hallway of the
District Court were not impermissibly suggestive, and therefore does not
support the defendant's claim that the victims' in‑court identifications,
based upon those earlier confrontations, should have been suppressed. The defendant's further contention that the
confrontations were illegal because he was not then represented by counsel is
without substance. Those confrontations
were not of a character which would warrant an imposition of the exclusionary
rule relied upon by the defendant. See
United States v. Wade, 388 U.S. 218, 233‑234, 87 S.Ct.
1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 272‑274,
87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). That exclusionary rule is inapplicable where,
as here, for all that the record[5 Mass.App.Ct. 671] shows, the confrontation was accidental and
not arranged by the police. Commonwealth
v. D'Ambra, 357 Mass. 260, 263, 258 N.E.2d 74 (1970);
Commonwealth v. Hervey, 1 Mass.App.
727, 729, 306 N.E.2d 862 (1974).
[17][18]
Even if the judge had found that the pre‑trial identification procedures
were impermissibly suggestive, the evidence would support a finding that the in‑court
identifications were based upon independent observations by the victims during
the commission of the crimes. The
witnesses' ability to observe the defendant at the time of the crimes is a most
important factor in determining whether an in‑court identification is
independent of suggestive pre‑trial identification procedures. Commonwealth v. Ross, 361 Mass. at 671‑682,
282 N.E.2d 70. Commonwealth v. Underwood,
3 Mass.App. ‑‑‑, ‑‑‑
([FNF]), 335 N.E.2d 915 (1975). The St. Georges observed the intruders in a
well‑lighted area under conditions likely to impress the defendant's
features upon their minds. This
observation was sufficient to support a determination by the judge that their
in‑court identifications were independent of any suggestive pre‑trial
identification procedure. Compare
Commonwealth v. Cefalo, 357 Mass. 255, 257‑258,
257 N.E.2d 921 (1970); Commonwealth v. Hogg, ‑‑‑ Mass.App.Ct. ‑‑‑, ‑‑‑ ([FNG]), 344 N.E.2d 924 (1976).
[19] With
respect to the defendant's claim that trial counsel's failure to request the
probation and criminal records of Mr. St. George was indicative of ineffective
assistance of counsel, counsel for the codefendant did in fact request the
records and they were produced during the trial. Counsel for the codefendant declined for
tactical reasons to use them. The judge
could have found that the defendant's trial counsel had made a similar
decision. The record shows only that two
untried indictments of the witness Kenneth St. George were pending
in an adjoining county. The value of
such records for impeachment purposes was questionable and their admissibility
doubtful. ([FN3]) Here again the record
supports[5 Mass.App.Ct.
672]
an implicit finding by the judge that the defendant was not deprived of
a substantial defense.
Finally,
we agree that Indictment No. 51528 should have been dismissed for the reason
stated in the disposition of a similar indictment for mayhem or assault with
intent to maim in the case of Commonwealth v. Coburn, ‑‑‑ Mass.App. ‑‑‑, ‑‑‑ ‑
‑‑‑ ([FNH]), 360 N.E.2d 651
(1977). With respect to the defendant's
additional argument addressed to that indictment, since no evidence was
admitted thereon which could not also have been admitted on Indictment No.
48469 for assault and battery with a "dangerous weapon, to wit: his
boot" (see Commonwealth v. D'Agostino, 344 Mass.
276, 279, 182 N.E.2d 133, cert. denied, 371 U.S. 852, 83 S.Ct.
90, 9 L.Ed.2d 86 (1962); Commonwealth v. McKenzie, 3 Mass.App.
‑‑‑ ([FNI]), 336 N.E.2d 926
(1975)), it follows that the judge's failure to dismiss the mayhem indictment
was not prejudicial to the defendant in the respect now claimed. We are satisfied that there was no error in
the denial of the defendant's motion for a new trial.
The
judgment on Indictment No. 51528 is reversed, the verdict on that indictment is
set aside, and the indictment is to be dismissed. The judgments on all other indictments are
affirmed.
So
ordered.
(FN1.) An appeal by the codefendant was
decided by this court in Commonwealth v. Coburn, ‑‑‑ Mass.App. ‑‑‑ (Mass.App.Ct.Adv.Sh. (1977) 256), 360 N.E.2d 651 (1977).
(FNA.) Mass.App.Ct.Adv.Sh. (1976) 97, 100‑101.
(FNB.) Mass.App.Ct.Adv.Sh. (1976) at 102, 104.
(FN2.) At a
hearing on a motion for a new trial in which ineffective assistance of counsel
is claimed, it is proper for new defense counsel to call for the testimony of
trial counsel to reveal the latter's rationale in his management of the defendant's
case during trial. See Commonwealth v. Kozerski, 1 Mass.App. 106, 111‑112,
294 N.E.2d 460 (1973), id., 364 Mass. 833, 305 N.E.2d 830 (1974); Commonwealth
v. Cross, ‑‑‑ Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (Mass.App.Ct.Adv.Sh. (1976) 97, 102‑103), 340 N.E.2d 923
(1976). Apparently in the instant case
trial counsel was not called to testify.
(FNC.) Mass.Adv.Sh. (1976) 652, 658, 662.
(FND.) Mass.Adv.Sh. (1976) at 661.
(FNE.) Mass.App.Ct.Adv.Sh. (1975) 1215, 1236.
(FNF.) Mass.App.Ct.Adv.Sh. (1975) 1215, 1238.
(FNG.) Mass.App.Ct.Adv.Sh. (1976) 441, 447.
(FN3.) The
indictments had not ripened into convictions admissible under G.L. c. 233, s 21.
The defendant asserts that he had a constitutional right to use the
records for impeachment purposes, relying upon Davis v. Alaska, 415 U.S. 308,
315‑318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974),
and Commonwealth v. Ferrara, 368 Mass. ‑‑‑, ‑‑‑,
‑‑‑ (Mass.Adv.Sh. (1975) 2064, 2071, 2073), 330 N.E.2d 837
(1975). However, both Davis and Ferrara
involved records of adjudications of guilt which indicated the strong
possibility that the witnesses were cooperating with the prosecution in
exchange for leniency. Ibid. Here there
is no such indication. Nothing in the
record demonstrates that the witness Kenneth St. George, a victim of the crime,
was, through his testimony, seeking to curry favor with the prosecution. Contrast Commonwealth v. Graziano,
368 Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(Mass.Adv.Sh.
(1975) 2282, 2289‑2290), 331 N.E.2d 808 (1975). See also Commonwealth v. DiRoma,
‑‑‑ Mass.App. ‑‑‑,
‑‑‑ ‑‑‑‑ (Mass.App.Ct.Adv.Sh. (1977) 871, 871‑872), 364 N.E.2d 1280
(1977).
(FNH.) Mass.App.Ct.Adv.Sh. (1977) 256, 257‑258.
(FNI.) Mass.App.Ct.Adv.Sh. (1975) 1285.