Com. v. Cardenuto

• Decision Date: 16 January 1990
• Citation: 548 N.E.2d 864,406 Mass. 450
• Parties: COMMONWEALTH v. Pasquale CARDENUTO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 864

548 N.E.2d 864

406 Mass. 450

COMMONWEALTH v. Pasquale CARDENUTO.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Oct. 2, 1989.

Decided Jan. 16, 1990.

Elizabeth R. Dunphy, Asst. Dist. Atty., for Com.

Keith S. Halpern (Andrew H. Good, Boston, with him), for defendant.

Before LIACOS, C.J., and WILKINS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

On March 19, 1985, the defendant, Pasquale Cardenuto, was convicted of arson and of burning insured property with intent to defraud an insurer. A Superior Court judge allowed Cardenuto's motion for postconviction relief by granting a new trial, and the Commonwealth appeals. Mass.R.Crim.P. 30(c)(8), 378 Mass. 900 (1979). Cardenuto has filed a notice of cross appeal and a motion for dismissal or acquittal. We transferred the case to this court on our own motion.

On March 15, 1983, a fire destroyed the building which housed the defendant's restaurant in Westfield. As a result of this fire, the defendant and Joseph Yamin, ¹ were indicted and charged with arson in violation of G.L. c. 266, § 2 (1988 ed.). Cardenuto, in addition to being charged with arson, was charged with burning insured property with the intent to defraud an insurer in violation of G.L. c. 266, § 10 (1988 ed.). Cardenuto and Yamin were tried together before a jury. At the close of the Commonwealth's case and, again, at the close of all the evidence, Cardenuto's trial counsel moved for a required finding of not guilty. The judge denied both motions. ² The evidence was submitted to the jury and the jury found Cardenuto guilty of both crimes. The same jury acquitted Yamin.

After his conviction, but before sentencing, Cardenuto's trial counsel moved for a new trial pursuant to Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). ³ Before the hearing on the defendant's motion, however, the defendant was sentenced to the Massachusetts Correctional Institution, at Cedar Junction, to a term of from six to ten years on the arson conviction. ⁴ The judge stayed execution of the sentence, pending hearing and ruling on Cardenuto's motion for a new trial. After the hearing, the judge denied the motion. ⁵ The Appeals Court affirmed the judge's denial. Commonwealth v. Cardenuto, 24 Mass.App.Ct. 1113, 512 N.E.2d 296 (1987). It was at this point that Cardenuto obtained new counsel (his current counsel) who sought further appellate review of the judge's refusal to grant a new trial. This court denied the defendant's request for further appellate review. 401 Mass. 1101, 517 N.E.2d 1289 (1987).

On June 16, 1988, Cardenuto, through current counsel, filed a second motion for postconviction relief in the Superior Court. As grounds for this second motion, Cardenuto claimed that his trial counsel was ineffective at trial and on direct appeal, ⁶ in failing to appeal the denial of his motions for a required finding of not guilty. Cardenuto also claimed that his trial counsel ineffectively represented him at the hearing on Cardenuto's first motion for a new trial. ⁷

The second motion judge found that Cardenuto's trial counsel effectively represented Cardenuto at trial. She further found, however, that trial counsel's failure to appeal the denial of his motions for a required finding of not guilty amounted to conduct which fell "below that of the ordinary fallible lawyer and which indeed did result in substantial prejudice to the defendant."

The second motion judge also found that trial counsel was ineffective at the hearing of Cardenuto's first motion for a new trial. The Commonwealth contends that, since Cardenuto had no right to effective assistance of counsel at his motions for a new trial, the judge erred in concluding that trial counsel's performance at the hearing on the motion deprived Cardenuto of this right. Because we reverse on other grounds, we need not address the issue of whether the defendant had a right to counsel at the hearing on his motion for a new trial.

Although the motion judge did not make a finding that there was insufficient evidence to warrant the jury's verdict, she did state that "a motion for a required finding of not guilty based upon the evidence in this case was of arguable merit. It has more than a minimal chance of success." The motion judge granted Cardenuto a new trial. We agree with the motion judge's conclusion that trial counsel's failure to appeal the denial of the motions for required findings of not guilty amounted to ineffective assistance of counsel. In so doing, we conclude that there was insufficient evidence to sustain the jury's verdict. Accordingly, we hold that trial counsel's failure to appeal the denial of the motions for a required finding of not guilty amounted to ineffective assistance of counsel.

1. Effective assistance of counsel. Cardenuto contends that because his trial counsel failed to argue on appeal that there was insufficient evidence to sustain the verdict, Cardenuto was denied effective assistance of counsel under the Sixth Amendment to the United States Constitution and under the State Constitution. The defendant asserts, in essence, that, had his trial counsel appealed the denial of these motions, the reviewing court would have determined the evidence to be insufficient to support the jury's verdict, his conviction would have been reversed and retrial would be barred by double jeopardy.

Cardenuto had a right to the effective assistance of counsel on his direct appeal. See Douglas v. California, 372 U.S. 353, 355-356, 83 S.Ct. 814, 815, 9 L.Ed.2d 811 (1963). The standard for determining effective assistance of counsel under the State Constitution is set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), and requires "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." ⁸ Id.

As we view this case, if the evidence introduced at trial was insufficient to sustain the conviction, trial counsel's failure to argue this issue on appeal necessarily amounted to ineffective assistance of counsel.

We turn to the sufficiency of the evidence. On this issue we consider the evidence up to the time the Commonwealth rested its case and the defendant first moved for a required finding of not guilty. ⁹ To sustain the denial of Cardenuto's motions for a required finding, we must determine that a rational trier of fact viewing the evidence in the light most favorable to the Commonwealth could be satisfied of the existence of each element of the offense beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979).

The Commonwealth presented evidence at trial that the fire was incendiary and that gasoline was the accelerant used to start the fire. Cardenuto was the sole owner of the building. Fire fighters responding to the scene discovered the back door of the restaurant unlocked and open. There were no signs of forced entry into the building. There was no theft of monies from the restaurant's cash registers or safe or any loss of valuables from the contents of the building. Cardenuto and his mother and father were the only people with keys to the premises. Cardenuto never lent his keys to anyone. Cardenuto was the last person in the restaurant before the fire and remembered bolting the back door of the restaurant as well as locking the front door that night. At approximately 11:15 P.M., Cardenuto left with the codefendant, Yamin, for an area bar, The Grove, about four miles from Cardenuto's restaurant. Before they arrived at The Grove, however, they returned to the restaurant so that Cardenuto could deposit the night's receipts in the restaurant's safe. After Cardenuto deposited the receipts, the two left for The Grove. ¹⁰

There was also evidence of increased competition for Cardenuto's restaurant. A Papa Gino's restaurant had opened a short distance away in February, 1983. Thus, including Papa Gino's, there were at least five pizza parlors within a two-mile vicinity of the Elm Street area of Westfield. Finally, there was evidence that Cardenuto had increased his insurance coverage on the building from $180,000 to $300,000. At that time, Cardenuto told his insurance agent that he was concerned about the replacement cost on the building in case of a "total loss." There was also evidence that in December of 1982, Cardenuto requested that his insurance agent increase the insurance on the building to $400,000. After an appraisal, the coverage on the building was decreased to $230,000 for the building and the coverage on the contents of the building was increased from $40,000 to $64,000.

We hold that the evidence was insufficient to warrant the guilty verdict. Although circumstantial evidence is competent evidence to establish guilt, see Commonwealth v. Rojas, 388 Mass. 626, 629, 447 N.E.2d 4 (1983), we believe the evidence in this case does not rise to the level necessary to sustain a guilty verdict. The second motion judge correctly noted that there was no evidence that would place Cardenuto at the scene of the fire at the time of its outbreak; there was no evidence that he had asked or entered into an agreement with anyone to set fire to the building; there was no evidence that he made any statements or was guilty of any conduct amounting to consciousness of guilt; and there was no evidence that he made any false or misleading statements relative to the investigation of the fire. Moreover, there was no evidence that the defendant was experiencing serious financial problems. Contrast Commonwealth v. DeStefano, 16 Mass.App.Ct. 208, 216-217, 450 N.E.2d 637 (1983) (evidence of concealment and misleading statements by defendant); ...