Com. v. Haley

• Decision Date: 11 December 1992
• Citation: 604 N.E.2d 682,413 Mass. 770
• Parties: COMMONWEALTH v. James A. HALEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 682

604 N.E.2d 682

413 Mass. 770

COMMONWEALTH v. James A. HALEY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 10, 1992.

Decided Dec. 11, 1992.

Marina Medvedev, Asst. Dist. Atty. (Vincent R. McDonough, Asst. Dist. Atty., with her) for Com.

John E. Conwell, Boston (David Hayes Erickson with him) for defendant.

Before LIACOS, C.J., and ABRAMS, LYNCH and GREANEY, JJ.

GREANEY, Justice.

This is the Commonwealth's appeal from an order of a Superior Court judge (motion judge) granting the defendant, James A. Haley, a new trial in connection with his 1972 conviction of murder in the first degree. We conclude that a new trial should not have been ordered and direct the entry of an order denying the motion.

1. Background. The defendant was arrested on July 12, 1971, for the murder the day before of David Myers, his sister-in-law's boy friend. The defendant retained Mr. Alfred P. Farese, Sr., a well-known and experienced criminal defense attorney, to represent him at a probable cause hearing on July 23, 1971, and in November, 1971, the defendant's motion for assignment of Mr. Farese as his counsel was allowed. On March 3, 1972, the defendant was convicted by a jury of murder in the first degree on the basis of deliberate premeditation. The defendant was represented by Mr. Farese on his direct appeal. In addition to reviewing the defendant's numerous claims of error on that appeal, we reviewed the whole case on both the law and the evidence, pursuant to our duty under G.L. c. 278, §§ 33A-33G (presently G.L. c. 278, § 33E [1990 ed.] ), and concluded that the evidence was sufficient to support the jury's verdict, and that "justice does not require the entry of a verdict of a lesser degree of guilt ... or that there be a new trial." Commonwealth v. Haley, 363 Mass. 513, 524, 296 N.E.2d 207 (1973). For a summary of the evidence presented at the defendant's trial, see id. at 514-516, 296 N.E.2d 207.

In 1987, the defendant brought a pro se motion for a new trial pursuant to Mass.R.Crim. P. 30(b), 378 Mass. 900 (1979). Among other assertions, the defendant argued that he was denied his constitutional right to effective assistance of counsel because Mr. Farese stated at the opening of the trial that he was unprepared, and the trial judge denied Mr. Farese's request for a two-day continuance to continue his preparation. At the time the defendant brought this motion, Mr. Farese was deceased and the judge had retired. In May, 1988, the motion judge denied the motion without hearing, concluding that the defendant had "failed to demonstrate serious incompetency, inefficiency or inattention of counsel." The defendant's motion for appointment of counsel to pursue the motion was also denied.

On February 1, 1989, the defendant moved in the Supreme Judicial Court for the county of Suffolk to claim a late appeal from the order denying his motion for a new trial. See G.L. c. 278, § 33E. On February 13, 1989, a single justice of this court ordered that counsel be appointed for the defendant in the Superior Court, and that the case proceed there for "such other action as is needed."

Following the appointment of counsel, the defendant filed what was styled as an "amended" motion for a new trial accompanied by affidavits and a lengthy memorandum of law. These documents more artfully set forth his original claim of ineffective assistance of counsel as well as several other claims of error at the trial which had not been raised on direct appeal or in his first motion for a new trial. The amended motion was returned to the motion judge. Based on the papers, the trial transcript, and arguments of counsel, and without holding an evidentiary hearing, the motion judge ordered that the defendant be granted a new trial. The judge concluded that "justice may not have been done" because in his opinion: (1) the trial judge should have granted Mr. Farese a forty-eight hour continuance to prepare the case; (2) Mr. Farese provided constitutionally ineffective representation; and (3) the trial judge gave a defective reasonable doubt instruction and prematurely resorted to the instruction described in Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851). A single justice of this court, pursuant to G.L. c. 278, § 33E, granted the Commonwealth leave to appeal from the order of the motion judge. See Commonwealth v. Francis, 411 Mass. 579, 580, 583-585, 583 N.E.2d 849 (1992). ¹

2. Standard of review. In reviewing the grant or denial of a motion for a new trial, we will grant special deference to the views of a motion judge who was also the trial judge. Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). When a motion judge has not presided at the trial, we defer only to the judge's assessment of the credibility of witnesses at the evidentiary hearing on the new trial motion, but we consider ourselves in as good a position as the motion judge to assess the trial record. Id. In the instant case, the motion judge was not the trial judge, and he did not receive any testimony on the motion for a new trial. The matter was decided on an entirely paper record. In these circumstances, we are in the same position as the motion judge in assessing the strength of the defendant's claims. ² Commonwealth v. Tucceri, 412 Mass. 401, 409, 589 N.E.2d 1216 (1992).

3. Merits. ³ (a) Motion for continuance. At a pretrial conference in January, 1972, Mr. Farese indicated that he would be ready for trial on February 22, 1972. When the case was called on that date, Mr. Farese requested a continuance to fulfil his engagement at a murder trial in Rhode Island. That request was allowed by the judge, and the trial was continued until February 28. When the case was called for trial again on February 28, Mr. Farese asked for a continuance of "approximately two days," because he had just completed the Rhode Island trial and felt that he "wouldn't have adequate time to prepare [this] case properly." The request was denied. The motion judge concluded that the trial judge had abused his discretion by not granting the two-day continuance. The motion judge suggested that Mr. Farese had been rendered ineffective thereby.

These conclusions are not supported. Mr. Farese had been involved in the case for eight months prior to the trial date. The docket discloses considerable pretrial activity and preparation by him, including the filing and disposition of many motions. Before February 22 (the date of the first continuance), the case had been the subject of a pretrial conference, and the date of trial selected apparently by mutual agreement among the prosecutor, Mr. Farese, and the judge. In connection with the requested continuance on February 28, Mr. Farese did not indicate any specific area in which he may have lacked adequate preparation, and the defendant now does not explain any way in which his defense might have been improved if Mr. Farese had been given another two days in which to prepare. In considering the request, the judge could take into account the length of time that had elapsed, the extensive pretrial activity, and what he (the trial judge) knew of Mr. Farese's experience. In the last respect, the experienced trial judge undoubtedly had some acquaintance with Mr. Farese and his approach to cases, and probably knew (or reasonably could have assumed), that a morning of trial request for a continuance couched in terms of "unpreparedness" was not an admission of incompetence by Mr. Farese, but rather a request to obtain time to develop further the contemplated defense strategy.

Of special significance to this issue is the lack of any indication in the trial record that Mr. Farese was in fact inept at trial by reason of indolent preparation. Mr. Farese exhibited complete familiarity with the facts of the case. He conducted vigorous and thorough cross-examination of the Commonwealth's witnesses, introduced exhibits, made many successful objections, took 134 exceptions, introduced a strong claim of alibi through seven defense witnesses, made a persuasive closing argument and proposed extensive jury instructions. Mr. Farese also demonstrated that he had investigated the background of Gloria Custis, the prosecution's key witness, to search for evidence which would throw suspicion on her testimony and implicate her as the murderer. See Commonwealth v. Haley, supra, 363 Mass. at 523, 296 N.E.2d 207. We conclude, as apparently did the trial judge, that Mr. Farese was not unprepared, and that his request for a continuance was essentially a delaying tactic. The request was properly denied. There was no abuse of discretion. See Commonwealth v. Habarek, 402 Mass. 105, 108, 520 N.E.2d 1303 (1988); Commonwealth v. Burbank, 27 Mass.App.Ct. 97, 107, 534 N.E.2d 1180 (1989).

(b) Ineffective assistance. The motion judge accepted the defendant's assertion that Mr. Farese had provided him with constitutionally ineffective assistance at the trial. Once we have given a defendant convicted of murder in the first degree full review pursuant to the obligations imposed by G.L. c. 278, § 33E, "our special powers of review under § 33E are no longer applicable. Any claim of ineffectiveness of counsel presented in a subsequent appeal from the [disposition] of a motion for a new trial, authorized by a single justice of this court, would not be tested under the § 33E standard but on the applicable constitutional standards, State and Federal." Commonwealth v. Wright, 411 Mass. 678, 682 n. 1, 584 N.E.2d 621 (1992). Therefore, to be entitled to appellate relief on his claim that Mr. Farese was ineffective, the defendant must show that 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." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Even if incompetency is found, the defendant must also show that he has likely been...