Com. v. Diatchenko

• Citation: 387 Mass. 718,443 N.E.2d 397
• Parties: COMMONWEALTH v. Gregory DIATCHENKO.
• Decision Date: 08 December 1982
• Court: United States State Supreme Judicial Court of Massachusetts

Page 397

443 N.E.2d 397

387 Mass. 718

COMMONWEALTH v. Gregory DIATCHENKO.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 6, 1982.

Decided Dec. 8, 1982.

J. Albert Johnson, Boston (Thomas J. May, Boston, with him), for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty. (John Richard, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

HENNESSEY, Chief Justice.

The defendant, Gregory Diatchenko, was convicted of murder in the first degree by a jury in the Superior Court in Suffolk County and sentenced, pursuant to G.L. c. 265, § 2, to the mandatory term of life imprisonment without the possibility of parole. On appeal, the defendant contends that G.L. c. 265, § 2, is unconstitutional under the United States and Massachusetts Constitutions, because it requires a mandatory term of life imprisonment without the possibility of parole and does not allow the trial judge to consider mitigating factors prior to sentencing. He also argues that the trial judge's refusal to grant the defendant's request to change counsel was unconstitutional because it denied him the right to effective assistance of counsel. The defendant's final assertion is that the judge's instructions to the jury were confusing and misleading and that the judgment should be reversed because the alleged errors in the instructions resulted in the defendant's being improperly convicted of murder in the first degree. We disagree with all the defendant's arguments and, therefore, affirm the judgment.

On the evening of May 9, 1981, at approximately 9:45 P.M., Boston police officer Peter Jerome received a radio call directing him to an alley at the rear of 860 Beacon Street, near Kenmore Square. When he arrived he saw the victim, Thomas Wharf, slumped unconscious and bleeding in the driver's seat of a red Cadillac automobile. Wharf was pronounced dead at 10:40 P.M. An autopsy revealed nine stab wounds, including one penetrating the left lung at a depth of four inches and another piercing the heart at a depth of seven inches. The right rear pocket of the victim's pants had been ripped open.

The Commonwealth presented extensive evidence indicating that the defendant committed the murder. Ronald Gray testified that he saw the defendant alone on Hadassah Way near Park Square in Boston on the night of the stabbing at approximately 8 P.M. Lori Pearlman testified that she was seated at a table in the living room of her apartment at 860 Beacon Street on the night of the stabbing. The table was located next to an open window overlooking the alley where the stabbing occurred. At approximately 9:30 P.M., she heard a loud voice from the alley yell out a few times, "Give me your money, you m--- f---." She telephoned the police and reported what she assumed was a robbery. While she was on the telephone, she heard a car horn sound continuously for approximately five seconds. She next saw someone with blond or light brown hair, wearing a brown leather jacket, run away from the building past parked cars in the alley.

On the same night, at approximately 10:15 P.M., James Ryan was seated at a shelter at the Brookline Village streetcar station. He saw a light-haired young man, carrying a brown leather jacket, walk along the trolley tracks, coming from the direction of the scene of the murder. The young man came into the shelter, sat down beside Ryan, and asked him for a match. Ryan, who noticed that the young man's hand was covered with blood, asked him if he had cut himself. The young man replied that he had been in a fight and had stabbed someone approximately twenty times. Ryan and the young man spoke for about fifteen minutes and the young man told Ryan that his name was Greg. On the following day, Sunday, May 10, Ryan read an account of the murder in a newspaper. On Monday, May 11, Ryan telephoned the Boston police and told them of his meeting with the young man on the night of the stabbing. Ryan later identified a photograph of the defendant from an array of eleven photographs. The defendant's fingerprints were found in and on the victim's car.

An arrest warrant was issued for the defendant. A search of the defendant's apartment was conducted during the arrest, and a brown leather jacket and a knife were found.

At his trial, the defendant was represented by a privately retained attorney, Mr. William Homans. After the start but before the completion of the empanelling of the jury, the defendant advised the judge that he wished to speak with another attorney. The defendant indicated that he had consulted with another attorney, Mr. Albert Johnson, and asked the judge for "a little more time so [he] could talk to this attorney to see what he has to say." Since the request was made during the empanelling of the jury, the judge stated that he would not stop the trial but that the defendant could confer with Mr. Johnson when the empanelling was completed.

The following day, in a lobby conference, the defendant expressed his wish to change counsel, and the judge discussed the request with Mr. Homans, with the prosecutor, and with a Mr. Thomas May, who is an associate of Mr. Johnson. Mr. May explained that the defendant did not have "any specific complaint, but just a general feeling of discomfort and lack of confidence." Mr. May also stated that he would need a continuance of at least thirty days in order to prepare adequately for trial. The prosecutor pointed out that the Commonwealth had flown the main witness to Boston from North Carolina and that arrangements had been made to bring the second most important witness down from Maine for the trial. Also, the jury had been empanelled and a bus and police cruiser were outside waiting to take the jury on a view of the scene of the murder. The judge decided that the trial should not be delayed unnecessarily and that Mr. Homans should continue as defense counsel.

The jury returned a verdict of guilty of murder in the first degree. The jurors' answers to special questions revealed that they found deliberate premeditation and malice aforethought, extreme atrocity and cruelty, and felony-murder (armed robbery). Defense counsel attempted to introduce mitigating factors at the sentencing phase of the trial but the judge refused to consider them. The judge imposed the punishment required under G.L. c. 265, § 2, life imprisonment without the possibility of parole.

1. The defendant maintains that the mandatory sentencing provision ¹ of G.L. c. 265, § 2, is constitutionally infirm as cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and cruel or unusual punishment under art. 26 of the Massachusetts Declaration of Rights ² because it contravenes modern standards of decency and because the punishment imposed is so disproportionate to the offense. We disagree.

The defendant's first attack on the constitutional validity of G.L. c. 265, § 2, focuses on the statute's mandatory and nondiscretionary character. The defendant suggests that, because in other circumstances the Legislature frequently has allowed the exercise of judicial discretion in sentencing, that practice has become a contemporary standard of decency. He then concludes that a statute that does not comport with contemporary standards of decency is unconstitutional. The cases cited by the deendant, however, examine only the constitutionality of death penalty provisions. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, Mass.Adv.Sh. (1980) 2231, 411 N.E.2d 1274. Since these cases involve the death penalty, they are of limited usefulness in assessing the constitutionality of a mandatory term of life imprisonment. In Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978), a plurality of the Supreme Court stated, "Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases" (emphasis supplied). ³ In Lockett and in cases decided after it, the Supreme Court has reiterated that the standard for evaluating the constitutionality of death penalty provisions is much higher than the standard to be employed in evaluating other penalties. See, e.g., id. at 605 n. 13, 98 S.Ct. at 2965 n. 13 ("Sentencing in noncapital cases presents no comparable problems"); Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980) ("Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions [in death penalty cases] are of limited assistance in deciding the constitutionality of [other] punishment ..." [emphasis supplied] ). See also District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 642, ---, Mass.Adv.Sh. (1980) 2231, 2246, 411 N.E.2d 1274 ("[T]he death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain" [emphasis supplied] ). The Supreme Court has even stated that, although discretionary sentencing is an accepted practice, it is not constitutionally required in cases not involving the death penalty. Lockett, supra, 438 U.S. at 602, 604-605, 98 S.Ct. at 2963, 2964-65 (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell and Stevens, JJ.). Cf. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (consideration of sixteen year old defendant's family history required because death penalty was involved). Therefore, we reject the defendant's argument that G.L. c. 265, § 2, is unconstitutional because it does not allow consideration of mitigating circumstances.

The defendant's second challenge to the validity of G.L. c. 265, § 2, is that the...