Com. v. Drayton

• Decision Date: 30 April 1982
• Citation: 386 Mass. 39,434 N.E.2d 997
• Parties: COMMONWEALTH v. Joseph E. DRAYTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 997

434 N.E.2d 997

386 Mass. 39

COMMONWEALTH v. Joseph E. DRAYTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 4, 1982.

Decided April 30, 1982.

Conrad W. Fisher, Worcester, for defendant.

Philip T. Beauchesne, Asst. Dist. Atty. for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

After a trial by jury, the defendant was convicted of murder in the first degree, two charges of armed robbery, armed assault with intent to rob, and two charges of assault and battery by means of a dangerous weapon. He filed assignments of error, and later filed motions in this court for a new trial and for permission to expand his assignments of error. Pursuant to G.L. c. 278, § 33E, we remitted the defendant's motions to the trial judge, who denied the motion for a new trial. The defendant filed notice of appeal, and the case was reactivated on our docket. ¹

The murder victim was Maurice Dean. On March 1, 1974, Dean attended a performance in the company of Thomas Valengavich and Robert Applegate. Upon leaving, Dean and his companions were stopped on the street by three young men. One of the young men produced a silver colored handgun, and demanded money. After collecting the victims' money, he shot each of them. The three young men then fled, and Dean died six hours later.

The principal issue at trial was the identity of the killer. The Commonwealth's evidence linked the defendant to the crime in several ways. Applegate and Valengavich identified the defendant in court as the killer. A taxi driver and a passenger in the taxi testified that two men had hailed the taxi near the time and place of the crime, and the passenger identified the defendant as one of these men. On leaving the taxi, the man later identified as the defendant fired a silver handgun through the window of the taxi. On March 11, less than two weeks after the murder, a wooden box bearing the defendant's fingerprints was found at the scene of a shooting. The same gun used to kill Dean was used in this shooting. Finally, the murder gun was found in the defendant's possession in New York on March 17.

The defendant raises a number of arguments on appeal. None is meritorious, and we affirm the defendant's convictions.

1. Effective Assistance of Counsel.

The standard we have established for testing the constitutional sufficiency of legal representation by defense counsel has two branches. To obtain reversal for ineffective assistance of counsel, the defendant must show that (1) counsel's services fell "measurably below that which might be expected from an ordinary fallible lawyer," and (2) counsel's inadequacy substantially prejudiced the defendant's case. Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Commonwealth v. Rondeau, 378 Mass. 408, 412, 392 N.E.2d 1001 (1979). Counsel's tactical judgments, in particular, will not lead to reversal unless they appear "manifestly unreasonable." Commonwealth v. Mercado, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 1098, 1105, 420 N.E.2d 330, quoting from Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978).

The defendant raised the question of ineffective assistance of counsel before the Superior Court judge in support of his motion for a new trial. The judge rejected the claim, stating that "(t)he transcript reflects a capable representation." Although the defendant has since enlarged his list of alleged errors committed by counsel, we give weight to the conclusion of the judge, who observed counsel's conduct throughout the trial.

The defendant points to four acts or omissions by counsel as evidence of inadequate representation, beginning with counsel's decision not to file a pretrial motion to suppress identification testimony. A motion to suppress stood little chance of success. The principal identification witnesses were Applegate and Valengavich (the surviving victims) and the taxicab passenger who identified the defendant as the man who had hailed a taxi near the scene of the crime and had later fired a shot through the taxi's window. Each of these witnesses had failed to identify the defendant in photo identification procedures prior to trial. ² Each witness, however, had had ample opportunity to observe the perpetrator of the crimes he described. The witnesses' failure to select photographs of the defendant merely detracted from their credibility in court, and the judge was not likely to remove the identification evidence from the jury's consideration on this ground. See Commonwealth v. Fitzgerald, 376 Mass. 402, 409-410, 381 N.E.2d 123 (1978); Commonwealth v. Jones, 375 Mass. 349, 351-352, 377 N.E.2d 903 (1978). Nor was there any indication that the photo identification procedures had been suggestive, so as to taint the in-court identifications. See Commonwealth v. Williams, 378 Mass. 217, 239, 391 N.E.2d 1202 (1979).

The decision whether to request a voir dire or move to suppress was a tactical one, and defense counsel may have determined that the chance of success on a motion to suppress was too slight to justify the risks of affording the witnesses an opportunity to rehearse their testimony at a suppression hearing. Commonwealth v. Moffett, --- Mass. ---, --- n.7, Mass.Adv.Sh. (1981) 745, 758 n.7, 418 N.E.2d 585. Commonwealth v. Williams, supra, 378 Mass. at 239-240, 391 N.E.2d 1202. Moreover, having chosen to attack the identification testimony by cross-examination, counsel made diligent inquiries into the witnesses' powers of observation, and their inability to identify the defendant from photographs. See Commonwealth v. Moffett, supra, --- Mass. at --- (Mass.Adv.Sh.1981) at 758, 418 N.E.2d 585. In all, his treatment of the identification evidence was reasonable.

Next, the defendant complains that counsel should not have entered into a stipulation concerning a pretrial photo identification by the witness Applegate. Before Applegate testified, the prosecuting attorney informed defense counsel that neither Applegate nor Valengavich had made a photographic identification of the defendant. On cross-examination, however, Applegate stated that he had identified the defendant's photograph on at least one occasion, although he had failed to do so on other occasions. This testimony appears to have been a surprise to the prosecuting attorney. Upon investigation, the prosecuting attorney was unable to locate any officer who could substantiate the identification. Counsel then agreed to a stipulation that the jury should disregard Applegate's assertion that he had identified a photograph of the defendant. The stipulation was read to the jury. The defendant now argues that the better course would have been to move for a voir dire or a mistrial. He does not specify, however, what benefits might have been accomplished by these motions. The officers who administered the photographic identification procedure were unavailable. There was no indication that the prosecuting attorney concealed the prior identification, and the witnesses' testimony indicated that the photo identification procedure was fair. Even if a mistrial had been a viable possibility, counsel may have preferred not to take the chance that the Commonwealth would be able to substantiate the photo identification and introduce it at a subsequent trial.

The defendant also asserts that counsel should have moved for a mistrial when a witness stated that he had seen the defendant wear a particular type of coat "(w)hen he was in Billerica." The defendant apparently believes that this response prejudiced him in the minds of the jury by suggesting that he had been confined in the Billerica house of correction on other criminal charges. The reference to Billerica was not called for by the prosecutor's question, and the judge immediately struck the response on his own motion. Defense counsel's determination not to propose a mistrial in these circumstances was reasonable.

Finally, the defendant criticizes counsel for failing to request that the defendant be permitted to sit at the counsel table rather than in the prisoners' dock, particularly in light of the prominent role that in-court identifications would play at trial. Since the defendant was tried, we have held that a judge must grant a defendant's request to sit at the counsel table unless special circumstances require that he be seated in the prisoners' dock. Commonwealth v. Moore, 379 Mass. 106, --- - ---, 393 N.E.2d 904 (1979). See Bumpus v. Gunter, 635 F.2d 907, 914-915 (1st Cir. 1980), cert. denied, 450 U.S. 1003, 101 S.Ct. 1714, 68 L.Ed.2d 207 (1981). At the time of this trial, however, use of the dock was customary. Commonwealth v. Walker, 370 Mass. 548, 573, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976), habeas corpus denied sub nom. Walker v. Butterworth, 457 F.Supp. 1233 (D.Mass.1978), rev'd 599 F.2d 1074 (1st Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979). The crimes charged were violent. The judge instructed the jurors to draw no inference from the fact that the defendant was seated in the dock, and counsel, in cross-examining the identification witnesses, brought out the possibility that the defendant's location in the courtroom facilitated their identification of him as the killer. Counsel's failure to request an exception to general custom was not a serious lapse of duty. ³

Certainly, none of these acts or omissions falls "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). We agree with the judge below that the record shows a competent performance by defense counsel.

2. Denial of Continuance.

At the beginning of the trial, the defendant moved for a continuance on the ground that he was not adequately prepared for trial. The judge explored the matter by questioning both the defendant and his counsel. It...