Com. v. Companonio

• Decision Date: 30 August 2005
• Citation: 833 N.E.2d 136,445 Mass. 39
• Parties: COMMONWEALTH v. Alfredo COMPANONIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

833 N.E.2d 136

445 Mass. 39

COMMONWEALTH v. Alfredo COMPANONIO.

Supreme Judicial Court of Massachusetts. Plymouth.

Argued October 7, 2004.

Decided August 30, 2005.

COPYRIGHT MATERIAL OMITTED

Chauncey B. Wood for the defendant.

Robert C. Thompson, Assistant District Attorney, Brockton, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & SOSMAN, JJ.

GREANEY, J.

This appeal is decided some eighteen years after the defendant's conviction of murder in the first degree. The lengthy procedural history of the appeal that explains the delay is as follows. On April 23, 1987, a Superior Court jury convicted the defendant of murder in the first degree.¹ Almost five years later, on January 31, 1992, the defendant, represented by new counsel, filed a motion for a new trial in this court that was remanded to the Superior Court for disposition. On June 29, 1993, without conducting an evidentiary hearing, the trial judge allowed the defendant's motion on the basis that his trial counsel had furnished constitutionally ineffective assistance because counsel had failed to investigate fully the possibility that the defendant was suffering a mental impairment at the time of the killing. The Commonwealth appealed and, on June 1, 1995, this court vacated the judge's order granting a new trial, concluding that the record was insufficient to support the order, and directing the judge to:

"(1) conduct a full evidentiary hearing on the motion for a new trial; (2) receive testimony from the defendant's trial counsel regarding the nature and extent of the defendant's instructions to him concerning trial strategy; and finally, (3) . . . enter a new order on the motion and, if the motion is granted, indicate whether, and in what respects, she relied on any special knowledge that she had garnered during the course of the trial about the effectiveness of defense counsel."

Commonwealth v. Companonio, 420 Mass. 1003, 1003, 650 N.E.2d 351 (1995). The trial judge complied with these directives, and on September 18, 2000, entered a memorandum and order denying the defendant's motion for a new trial.

The defendant appealed, and the defendant's then appellate counsel filed his appellate brief (to which the Commonwealth responded with its appellate brief). On December 31, 2001, the defendant filed a pro se motion asking that new counsel be appointed for him and that a new evidentiary hearing be held on his motion for a new trial. It was determined that new counsel should be appointed for the defendant. On July 25, 2002, the defendant's present appellate counsel entered his appearance in this court. In the fall of 2002, present appellate counsel filed a motion and, soon thereafter, an amended motion for postconviction relief, which were remanded to the Superior Court. In the order of remand, this court directed that any resulting appeal "be consolidated with the appeal of the [defendant's] conviction." On May 28, 2003, the defendant moved for an evidentiary hearing on his amended motion for postconviction relief. In a written memorandum of decision and order dated September 22, 2003, a Superior Court judge (not the trial judge) denied the requested evidentiary hearing and the amended motion,² and, thereafter denied a motion to reconsider her order denying an evidentiary hearing. The defendant's present appellate counsel then perfected an appeal from these orders, which was consolidated with the appeal from the defendant's conviction and the appeal from the denial of his motion for a new trial.

The briefs filed by the defendant's former and present appellate counsel raise a variety of claims. The principal claims assert that the defendant's trial counsel provided the defendant with constitutionally ineffective assistance by not challenging the defendant's competency to stand trial and by failing to investigate fully whether (and argue to the jury that) the defendant lacked the capacity to form a specific intent to kill or to deliberately premeditate. These arguments, as well as the defendant's other arguments (which need not be referred to here) will be evaluated as instructed in Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), under G.L. c. 278, § 33E, with consideration given to "whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." We discern no basis to order a new trial under this standard. Further, after general consideration under G.L. c. 278, § 33E, of the record and the fairness of the verdict apart from the claims specifically argued, we find no basis to reduce the verdict or to order a new trial. We affirm the orders denying the defendant's motion for a new trial and the amended motion for postconviction relief and evidentiary hearing thereon, and the judgment of conviction.

To provide over-all background, we first summarize the facts as the jury could have found them in the light most favorable to the Commonwealth. We shall then summarize the judge's facts and conclusions on the defendant's original motion for a new trial, and thereafter proceed to resolve the defendant's claims that his trial counsel provided constitutionally ineffective assistance with respect to the issues of competency and mental impairment.

1. Facts. In the early evening of May 19, 1986, the defendant and Santos Lopez arrived separately at the apartment of the victim, Gilberto Nohoya, in Brockton. The three men were friends, and were immigrants from Cuba. The defendant had been living with the victim for several months.

The victim had been drinking vodka prior to the arrival of the defendant and Lopez. Shortly after the defendant had arrived, the victim began to argue with him. The argument lasted ten to fifteen minutes. It started inside and then moved outside. The victim produced a knife. The entire argument remained verbal, and the victim threw the knife to the ground. The defendant picked it up, brought it back inside, and placed it in the kitchen cabinet above the sink.

At some point, the victim disclosed that the following day was his birthday. In celebration, each of the men drank an entire bottle of champagne. In addition, the defendant and Lopez "snorted" cocaine three to four times. Later, the three men went for a ride in the defendant's automobile. The defendant took out a .22 caliber automatic pistol, and the three men took turns firing it into the air. When the men returned to the victim's apartment, the defendant put the pistol under a pillow in the bedroom.

At approximately 11:30 P.M., the defendant's cousin, Celia Vasquez, stopped by. The three men were drinking when she arrived and appeared to be drunk. Lopez asked Vasquez to give the victim a kiss for his birthday and she did. Vasquez went into the bedroom with the victim and the defendant. The victim touched Vasquez, and the defendant got "a little bit upset."³ Vasquez departed after about thirty minutes. After she left, the defendant and the victim did not argue.

Later, Brenda Elaine Gunderway, another friend of the defendant, stopped by to drop off the defendant's laundry. She remained for about fifteen minutes, during which time she had some champagne.

At approximately 2:20 A.M., now May 20, the defendant announced that he was going to go out and get "the pistol" so they could "try out the .38." He left the apartment, returning five minutes later. Lopez was sitting in a chair and the victim was standing in front of him. When the defendant returned, he said, "Let's go for a ride," and then fired once at the victim and once at Lopez. The victim was hit in the chest, and Lopez's finger was hit. Lopez tried to escape out the back door, but it was locked. The defendant fired at him a second time, but missed. The defendant left. The victim died within a minute of being shot.

Lopez ran outside where he saw the defendant get into his car and drive away. Lopez ran to a public telephone and telephoned the police.

At about 3 A.M., the defendant went to Gunderway's nearby apartment, claiming to have lost his keys. Gunderway told him he could lay down on the couch. Vasquez arrived soon thereafter, and stayed until about 9 A.M. The defendant told Vasquez that he had shot the victim by accident.⁴

Brockton police found the .22 caliber pistol under a pillow in the bedroom of the victim's apartment. Later, at approximately 10 A.M., a police officer found the defendant under a blanket at Gunderway's apartment and arrested him.

Police recovered two spent .38 caliber bullets in the victim's apartment, and one spent .38 caliber bullet from the victim's body. The bullets all had the same general "rifling system."⁵ The murder weapon, which could not have been a .22 caliber automatic pistol, was never found.

Three days following the shooting, after the defendant had been arrested, he telephoned Lopez. The defendant told Lopez, in Spanish, to "forget about [the victim]" and then asked Lopez to "try to help him." One interpretation of the defendant's statement could have been, "I am in trouble, I'm accused of something I didn't do and only you can help me."

The defendant did not testify. He called one witness, the head of security for the Brockton housing authority, who testified that, at approximately 12:16 A.M. on May 20, he observed the defendant, victim, and Lopez outside the victim's apartment arguing with another man, and soon thereafter observed a woman leave the victim's apartment and get into an automobile parked nearby, joined thereafter by two men, including the man who had been arguing with the defendant, the victim, and Lopez. In closing, the defendant's trial counsel argued that the defendant did not shoot the victim; the Commonwealth's principal witnesses were not credible; that the defendant had no reason to leave the apartment to get a .38 caliber gun because he had ready access to a fully loaded...