Com. v. Hamm

Citation471 N.E.2d 416,19 Mass.App.Ct. 72
PartiesCOMMONWEALTH v. Ralph C. HAMM.
Decision Date05 December 1984
CourtAppeals Court of Massachusetts

David C. Casey, Boston (Kenneth J. King with him), for defendant.

Lila Heideman, Asst. Dist. Atty., for the Commonwealth.

Before PERRETTA, CUTTER and DREBEN, JJ.

PERRETTA, Justice.

After a jury-waived trial, the defendant Hamm was convicted on various indictments charging assault with intent to rape, assault with intent to murder, mayhem, and armed robbery. His convictions were affirmed, see Commonwealth v. Hamm, 357 Mass. 354, 258 N.E.2d 311, cert. denied, 400 U.S. 908, 91 S.Ct. 152, 27 L.Ed.2d 147 (1970), and some ten years later he filed the instant motion for a new trial, which raised four claims: (1) that he had not received effective assistance of counsel at his trial; (2) that one of his two convictions of mayhem was unsupported by sufficient evidence; (3) that his convictions of assault with intent to murder and mayhem, on the same victim, are duplicitous; and (4) that the sentences imposed on the convictions are so disproportionate to the crimes committed that they constitute cruel and unusual punishment. After an evidentiary hearing on the motion, the trial judge denied it without making any factual findings. See Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). Hamm appeals the ruling on the motion, and we affirm.

I. The trial.

The issues raised by Hamm on his direct appeal (357 Mass. 354, 258 N.E.2d 311) did not require a discussion of the details of the "exceedingly vicious" crimes. Id. Such a discussion is here necessary. At Hamm's trial there was evidence to show the following facts. On November 23, 1968, at about 1:00 A.M., Victim A (a male) and Victim B (a female) were seated in the front of A's car (a 1965 Mustang fastback with bucket seats and a manual transmission operated by a shift located in the center of the front floor), which was parked in a wooded area of Lawrence. The doors were unlocked, and the radio was playing. The couple felt the car shake, and the door on the driver's (A's) side suddenly opened. A man's upraised arm and hand, holding a knife, came down towards A, who brought up his left hand to deflect the knife.

As a struggle ensued between A and his assailant, later identified as Robert Preston, B screamed. A second man, Emanuel Smith, got into the car and hit B, who lost consciousness. A, his face bloodied from knife slashes, continued his struggle with Preston until he was dragged from the car by Smith. Once outside of the car, A was kicked and "stomped" in the head and face until he lost consciousness.

When B regained her senses, she found herself in the back seat of the car being undressed by Hamm. She threw up her hands, attempting to resist, and Hamm repeatedly struck her in the face. B, feigning unconsciousness, heard Preston tell Hamm not to worry because A was dead, and she heard Hamm tell Preston to look for money.

B was dragged from the car. Hamm "stomped" on her face, straddled her hips, looked directly at her, and punched her in the face. B begged Hamm simply to kill her, and he responded to the effect that he intended to do just that. She then felt a tearing sensation and passed out. What appeared to be a tree branch, thirteen inches long by three-quarters of an inch wide, had been forced up her vagina into her abdominal cavity.

Smith placed a burning rag inside the car after wiping away fingerprints, Hamm took money from B's purse, and the three men walked from the wooded area, leaving A and B unconscious on the ground.

A became alert, managed to put out the fire, and dragged B from the area. The two were able to get to a nearby house where they received aid. Smith, Preston, and Hamm were all apprehended within a week.

When the matter was called for trial, Preston's attorney, appointed two weeks earlier, obtained a continuance because he was not prepared to go forward. Smith pleaded guilty, and the Commonwealth was allowed, over Hamm's objections, to proceed against Hamm. The previously recited facts were testified to by the victims and Smith. The Commonwealth also presented medical evidence of the nature and extent of A's and B's respective injuries.

Hamm testified in his own behalf, denying B's and Smith's assertions that he was B's attacker. He admitted to having been at the scene of the crimes but denied participation. He struck A only after A, once outside the car, lunged at him. Hamm stated that Preston had attacked B and that Smith had taken her money. On cross-examination, however, Hamm stated that he might have been in the car with Smith and Preston and that he might have said to look for money. He admitted that when he left the wooded area, he believed that A and B were dead.

After finding Hamm guilty of the various offenses with which he was charged, the trial judge imposed sentences, which were thereafter reduced by the Appellate Division of the Superior Court. 1

II. The motion for new trial.

A. Ineffective assistance of counsel.

Hamm's diffuse complaints about the services rendered by his trial attorney relate to two principal claims: (1) that he was ill-prepared for trial; and (2) that he did not advise Hamm properly about waiving his right to a jury trial. Of the four grounds for relief asserted by the motion, the issue of ineffective assistance of counsel is the only question involving disputed facts. Our reading of the transcript of the hearing on the motion shows that the dispute is Hamm's word against that of his trial attorney. Although the trial judge denied the motion without making findings of fact, we see no need to remand the matter. A trial judge's failure to make findings as required by Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), "is not fatal ... where the ultimate conclusion is clearly evident from the record. [Citation omitted.] The judge's denial of the defendant's motion implies resolution of factual issues in favor of the commonwealth ...." Commonwealth v. Lanoue, 392 Mass. 583, 586 n. 2, 467 N.E.2d 159 (1984). Hence, we proceed on the basis that the trial judge accepted the word of trial counsel in those instances where it differed from Hamm's testimony at the hearing. Moreover, we note that those instances are infrequent and that Hamm's true complaint is in areas undisputed but explained by trial counsel.

To prevail on this claim, Hamm must show that the conduct of his trial counsel fell "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), and that "prejudice result[ed] therefrom," Commonwealth v. Sellon, 380 Mass. 220, 223, 402 N.E.2d 1329 (1980), quoting from Commonwealth v. Rondeau, 378 Mass. 408, 412, 392 N.E.2d 1001 (1979). Further, where, as here, tactical or strategic judgments are called into question, Hamm must also show that his trial attorney's judgment was "manifestly unreasonable," Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978), which generally means the loss of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. at 96, 315 N.E.2d 878; Commonwealth v. Mahan, 18 Mass.App. 738, 745, 470 N.E.2d 406 (1984). See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). Hamm has failed to make the requisite showings.

(1) Trial preparation. Hamm contends that his trial attorney failed to file adequate pretrial discovery motions or conduct an independent investigation of the facts. These failures, the argument continues, account for what Hamm characterizes as abbreviated and ineffective cross-examination of the witnesses.

Trial counsel for Hamm testified at the motion hearing that he had numerous conferences with Hamm and was in communication with Hamm's mother and sister, with whom Hamm communicated and had close relationships (a fact agreed to by Hamm). At one of their initial meetings, counsel was accompanied by his secretary, who recorded a lengthy and somewhat detailed account by Hamm of the events in question. It was decided at the outset, based on Hamm's statement, that the defense would be presence but noninvolvement. This position was consistent with a statement Hamm had given to the police. 2 Hamm advised his attorney that the crimes had been committed by Preston and Smith, cousins who now intended to blame Hamm.

When counsel appeared for the probable cause hearing, he intended to use the hearing as a discovery device. He was informed, however, that Hamm had been indicted and there was to be no hearing. According to counsel's testimony at the hearing on the motion for a new trial, he filed no formal discovery motions because he had access to the Commonwealth's file, which had been opened to him. From A's statements, counsel anticipated that his testimony would be that he did not see Hamm in the car and that such testimony could be viewed as consistent with Hamm's defense.

A testified at trial as expected, and, seeing no damage to the theory of the defense, counsel's cross-examination was brief. B, as described by trial counsel, was a strong, positive witness in her identification of Hamm as her assailant. Considering her abilities as a witness and the nature of her testimony, counsel wanted a brief cross-examination on the only true issue--was Hamm her attacker. Counsel brought out that she lapsed in and out of consciousness during the attack and that she had been shown by the police only one photograph of Hamm, and that outdated. In contrast to the cross-examination of A and B, that of Smith was lengthy. Counsel here aimed at bringing out the inconsistencies in his testimony and showing that the testimony was tainted by Smith's bias and prejudice.

Although Hamm argues that had discovery been conducted counsel's cross-examination would have been more detailed and effective, he has not shown what additional information would have surfaced and...

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