Com. v. Geraway

• Decision Date: 11 October 1973
• Parties: COMMONWEALTH v. William GERAWAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 814

301 N.E.2d 814

364 Mass. 168

COMMONWEALTH v. William GERAWAY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 7, 1972.

Decided Oct. 11, 1973.

Steven Duke, New Haven, Conn., for defendant.

John P. Connor, Jr., Asst. Dist. Atty., (Richard W. Barry, Sp. Asst. Dist. Atty., with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

REARDON, Justice.

The defendant was indicted on September 29, 1967, for murder in the first degree of David Martin Sidlauskas on April 24, 1966, and after a twelve day trial was, on February 20, 1968, convicted and sentenced to life imprisonment. He appealed to this court, assigning as error the admission of eyewitness identification testimony and the exclusion of evidence implicating another person in the crime. We affirmed the judgment. Commonwealth v. Geraway, 355 Mass. 433, 245 N.E.2d 423 (1969).

On November 10, 1970, the defendant filed a motion for a new trial alleging, inter alia, that newly discovered evidence revealed a 'conflict of interest on the part of the law firm that represented petitioner at trial so severe that it resulted in a denial of the right to effective counsel as guaranteed in the 6th Amendment of the Constitution of the United States, and the right to equal protection of the law, as guaranteed in the 14th Amendment.'

After an evidentiary hearing the trial judge denied the motion. ¹ The defendant excepted to the denial and claimed an appeal under the provisions of G.L. c. 278, §§ 33A--33H.

We summarized the factual framework of the trial in our opinion cited above. In essence, the case against the defendant consisted of certain eyewitness testimony given by two persons who identified him as a man they had seen in a yellow car near the site where the victim's body was discovered on the day of the murder, and the testimony of six other witnesses to admissions by the defendant that he had perpetrated it. It appeared at the hearing on the motion that four of these latter witnesses, and members of their immediate families, were represented, or had been represented, in various civil and criminal matters by the firm of Crane, Inker & Oteri. These witnesses were Carol Davies (sometimes referred to as Miss Kennedy), the defendant's ex-wife; her brother, Edward Kennedy; her sister, Michelle LeClair; and one William Dennett, a friend of the defendant.

The relationships between several members of this firm, the defendant, and certain witnesses at his trial can be summarized as follows. On May 9, 1967, Mr. Oteri, a member of the firm, wrote to the defendant, then incarcerated in Indiana, notifying him of one murder indictment against him, and the possibility of another, and suggesting a meeting 'in order that we can prepare to defend against this charge'. ² Two days later Mr. Oteri again wrote to the defendant and indicated that he had asked Mr. Inker of his firm to be counsel 'with me functioning as his associated counsel,' and instructed the defendant to ask the Chief Justice of the Superior Court to appoint Mr. Inker as counsel. Mr. Oteri noted, 'We are prepared to represent you through the trial, and any subsequent appeal . . . even though though you have no money.' ³ Mr. Inker was thereafter appointed counsel and represented the defendant at his trial and through his subsequent appeal.

Mr. Oteri testified that 'I had William Dennett a number of times on various criminal charges in Massachusetts and he would call me at times when he would be arrested outside of Massachusetts and I would attempt to counsel him as to what he should do.' His representation of Dennett included at least one case in May, 1966, shortly after the Sidlauskas murder. Although Mr. Oteri testified initially that 'I don't have any memory of ever talking to Dennett after he went to Michigan and became involved with the district attorney's office in certain testimony that I think he gave against Mr. Geraway,' he later testified that he did remember talking to Dennett in Michigan and consulting with him about a case in that jurisdiction involving checks. In a communication to Boston police Lt. Ingenere on March 14, 1967, Dennett referred to Mr. Oteri as his counsel.

Carol Davies, the defendant's ex-wife, testified that in March, 1967, she and her sister, Michelle LeClair, and her mother were questioned by Lt. Ingenere about the two murder cases involving the defendant and that she first told the Lieutenant she knew nothing. The questioning by the lieutenant continued for about a week. During that period Carol Davies called Mr. Oteri 'a few times' to ask his advice about the questioning and was advised by him to tell the lieutenant what she knew. Thereafter she told Lt. Ingenere that the defendant had made certain statements about the Sidlauskas murder, and she testified to that effect at the defendant's trial.

Michelle LeClair also gave evidence of questioning by Lt. Ingenere, and further said that she engaged in a discussion with her sister Carol as to whther she should answer his questions, that she was with Carol when she called Mr. Oteri, and that when they saw Mr. Oteri in the court house he advised her to tell what they knew. She testified that prior to getting advice from Mr. Oteri to testify she had not told Lt. Ingenere anything, and that her decision to answer his questions was at least partially influenced by Mr. Oteri's advice.

Edward Kennedy, a brother of Carol and Michelle, gave evidence that he also was questioned by Lt. Ingenere about the defendant's involvement in a murder case about March, 1967. Mr. John P. White, Jr., of the firm of Crane, Inker & Oteri represented him on the first day of the interrogation. Later in that week Edward Kennedy consulted Mr. Oteri. Before talking with Mr. Oteri, Kennedy told Lt. Ingenere that he did not know anything about the subject of the interrogation. Later he said that the defendant had said something relative to the murder. He also testified that the police at the interrogation suggested they might involve him in a current armed robbery investigation, and that at the time of the defendant's trial armed robbery charges were in fact pending against Kennedy. He was subsequently acquitted on these charges. At the hearing on the motion, Edward Kennedy testified that what he ultimately told Lt. Ingenere concerning the defendant's statement that 'I whacked a guy' was untrue.

In addition to counseling these witnesses, the firm of Crane, Inker & Oteri represented various members of their immediate family during the time it was representing the defendant. The firm represented Dennett's child and wife (as guardian and next friend) in a tort case which began about 1965 and was not finally disposed of until April 8, 1968. A judgment for $4,500 was eventually entered on a case in which the ad damnum was $250,000.

Beginning in January, 1967, the firm represented Russell Kennedy, the brother of Carol Davies, Edward and Bernard Kennedy, and Michelle LeClair on a homicide charge. This case was disposed of in June of 1967, but the firm continued rendering services relative to it until the summer of 1968. According to statements made by both Mr. Oteri and Edward Kennedy, the whole Kennedy family was involved in retaining Mr. Oteri and discussing various matters with him and attempting to raise money for a fee in conjunction with the charge against Russell Kennedy. According to the testimony of Edward Kennedy, this fee was to consist of a payment of $500 to $800, plus an agreement to retain the firm for any civil cases which the family might have.

The firm also represented Bernard Kennedy on an assault and battery charge in April, 1967.

In that same month the firm represented Edward Kennedy and his wife Maureen in a tort suit on behalf of their son Stephen, a case which was settled in 1970 on the payment of certain sums. The firm handled another tort suit involving Sheila, another child of Edward and Maureen Kennedy, in 1968, and on this case money was recovered in December, 1969.

It would thus appear from virtually undisputed testimony that Mr. Oteri, as well as other members of the firm, was closely associated with William Dennett at least through the time of the police investigation of the Sidlauskas murder, and served as counsel for many members of the Kennedy family in both civil and criminal matters around the time of the defendant's trial. ⁴ Since it appears there was a significant possibility suggested by the evidence that Dennett in fact committed the murder, that various members of the Kennedy clan were in serious trouble with the police during this period, and that the firm was handling several tort cases for close relatives of the witnesses, the situation was replete with potential constraints, both ethical and economic, on the firm's representation of the defendant.

The questions raised by the foregoing recitation are made even more acute in that the defendant himself repeatedly questioned the firm's interest in representing him. He wrote to Mr. Oteri more than a few times asking why the firm wanted to represent him since he had no money to pay them. To his repeated questions he received no written response. He also specifically inquired whether the firm was representing Dennett and therefore would not be able to give him its undivided loyalty. Mr. Inker finally replied specifically in a one line letter: 'We never heard of Billie Dennett.' However, there was a file maintained for Dennett in the firm and his name was apparently in the firm's card index of clients.

We accept the findings of the trial judge as true. Thus, although the firm considered as a single entity was involved in a serious conflict of interest, Mr. Inker's lack of knowledge of that conflict (finding No. 5) and the competence and vigor with which he conducted the defence (finding No. 8) indicate, as does our independent examination of the trial transcript, that there was slight, if any,...