Com. v. Adams

• Citation: 375 N.E.2d 681,374 Mass. 722
• Decision Date: 31 March 1978
• Docket Number: S-1056
• Parties: COMMONWEALTH v. Lawrence ADAMS.
• Court: United States State Supreme Judicial Court of Massachusetts

Page 681

375 N.E.2d 681

374 Mass. 722

COMMONWEALTH v. Lawrence ADAMS.

S-1056.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued Dec. 6, 1977.

Decided March 31, 1978.

Martin K. Leppo, Boston, for defendant.

Robert J. McKenna, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

WILKINS, Justice.

The defendant was convicted of murder in the first degree and armed robbery. Represented by new counsel, he appeals from his convictions and from the denial of his motion for a new trial. These appeals were argued together here.

He argues that he was denied the effective assistance of counsel in violation of his constitutional rights, because his trial counsel's representation was grossly inadequate and because his trial counsel was in a position of conflict of interest. He argues additionally that he was improperly denied access, for impeachment purposes, to criminal records of certain prosecution witnesses. We affirm the judgments.

In order to understand the issues presented, a detailed description of much of the evidence presented at the trial is required. An employee of the Massachusetts Bay Transportation Authority (MBTA) was assaulted and robbed in the early morning of November 27, 1972, in the Essex Street subway station in Boston. The victim, found after a silent alarm signal had been set off, had been struck with a blunt object. Cash boxes taken from the station area were found up the tracks, broken open. The victim died at Boston City Hospital early in the morning of November 28, 1972.

One Wyatt Moore testified for the prosecution that in December, 1972, in the kitchen of his mother's house in Dorchester and in the presence of his wife, his sister Lynne, and one James Gill, he had a conversation with the defendant. Moore testified that the defendant said that he had gone down to the Essex Street subway station with Harry and Warren Ambers to "take off" the cash boxes. One of the three used a board to hit an MBTA attendant, who was on duty, and, after a fight, knocked him out. They took his gold watch and the cash boxes, went up the tracks, and ripped the boxes open. Moore testified further that the defendant said that, in ripping the boxes open, he cut his hand which bled. ¹

On cross-examination, Moore testified that at the end of 1970 he had tried to hit the defendant with part of a bicycle. Moore also disclosed a substantial criminal past. He was not certain whether two of his sisters other than Lynne were present when the defendant told of the incident in the Essex Street subway station. Moore admitted that he had discussed the incident with Harry Ambers, who was convicted of the same crimes with which the defendant was charged, and that he had told Harry Ambers that he felt that the defendant had set him up to be arrested on an unrelated charge. He denied, however, that he had told Ambers that he was going to make sure the defendant "would get hit with something."

Moore's wife testified for the prosecution that in December, 1972, in the kitchen of her mother-in-law's house, she heard the defendant say that he and the Ambers brothers hit a man in the Essex Street subway station and took money from the turnstyles. She said that her husband, Moore's sister Susan, and James Gill were present. On cross-examination she testified that she was not certain whether Moore's sister Robin was present but that Lynne Moore was. ² Lynne testified that she heard the conversation in the kitchen and that the defendant described the incident in the Essex Street subway station.

The defendant, testifying on his own behalf, denied involvement in the crimes. He testified that in 1970 Moore once hit him with the fork that holds a bicycle wheel. He recalled that in December, 1972, he sat at a table in the Moore's house with Moore, Gill, and Moore's sisters Sylvia and Susan. The conversation was general. He testified that Moore had threatened him in February, 1973, and that Moore had told him that he was going to "jam" him, that is, do something to hurt him. Cross-examination greatly weakened the defendant's alibi testimony that he was home recovering from injuries on the night of the crimes.

Sylvia McGee, Moore's sister, testified for the defendant. She recalled a conversation in the kitchen of her mother's house in January, 1973, when the defendant, Moore, Gill, her sister Lynne, and another sister were present. She testified that there was no conversation about a robbery or a killing at the Essex Street subway station. She said that in March, 1973, her brother, Moore, told her that he was going to hang the defendant. On cross-examination, she testified that she was the defendant's girl friend.

Gill testified for the defense that he recalled a conversation in the kitchen of the Moore house when Moore, his sisters Sylvia and Susie, and the defendant but not Moore's wife were present. Gill testified that there was no conversation about any robbery or murder.

With the case in this posture, defendant's counsel called Harry Ambers for the purpose of showing Moore's bias against the defendant, although defense counsel knew that Ambers had given a detailed confession to the crimes in which he implicated the defendant. Ambers testified that he had a conversation with Moore in the Charles Street jail in the early part of 1973, in which Moore told Ambers that "he was going to get (the defendant) regardless of what it cost." Ambers told Moore he would go along with him "(a)nd I said that (the defendant) was involved in this here murder case." Moore told Ambers that he was going to use the murder in the Essex Street subway station to get the defendant. Ambers testified that he and Moore discussed "jamming" the defendant on three or four other occasions. Ambers also testified that Moore had said that he was working on a deal with the police if he testified against the defendant.

On cross-examination, Ambers conceded that he had given a statement to a police officer admitting that he, his brother, and the defendant had been involved in the Essex Street subway crimes. Defense counsel did not object to this testimony. As the prosecutor read through Ambers's statement, defense counsel did object to a question concerning a detail. The judge ruled the questioning proper because the witness's statement was a prior inconsistent statement. Defense counsel did not ask at any time during Ambers's cross-examination for a limiting instruction concerning the use to which the jury might put the witness's prior statement. As the prosecutor took the witness through this damaging statement, defense counsel objected to a question which included a quotation of what the defendant had said to the witness. "I think it's hearsay and affects more than the credibility of this witness." The judge overruled the objection, saying, "Not at all." Again defense counsel did not then request a limiting instruction that the evidence bore only on the witness's credibility. Ambers admitted making some of the statements to the police, denied making some others, had no memory of still others, but said that all his answers to the police were lies. The prosecutor took the witness, line by line, through the statement which was highly incriminating of the defendant and indicated that the defendant was the one who had hit the victim. Finally, the witness was impeached by records of his convictions of murder in the first degree and of armed robbery in the Essex Street subway incident.

On redirect examination, Ambers testified that he had lied to the police because he thought the defendant had broken into his house "(a)nd that was the only way I thought I could get him." On recross-examination, Ambers agreed that, in getting even with the defendant, he had implicated himself.

The next day, the Commonwealth called as a rebuttal witness the police officer who had questioned Ambers and he read a transcript of Ambers's detailed statement. Defense counsel did request that the judge instruct the jury that the statement was admissible not to prove the truth of any fact appearing in it but only to impeach Ambers's credibility. The judge indicated that he would explain the matter in his charge. ³

1. The defendant argues strenuously that he was denied effective assistance of counsel because defense counsel called Harry Ambers to testify. He points out that his position was greatly harmed by the introduction, for the purpose of impeachment, of evidence of Ambers's confession. That confession implicated the defendant in the crimes and would not have been admissible if Ambers had not testified.

In Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974), we discussed the general standard for determining whether "assistance of counsel" had been provided within the meaning of the Sixth Amendment. We said that "what 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, 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." Id. at 96, 315 N.E.2d at 883. As to the demonstration of prejudice to the defendant, we have said that "there ought to be some showing that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, --- Mass. ---, --- ^a, 364 N.E.2d 1260 (1977). See Commonwealth v. Saferian, supra 366 Mass. at 98, 315 N.E.2d 878.

The Commonwealth argues that the decision to call Harry Ambers was a trial tactic of a type which this court consistently has held to be insufficient to support a...