Com. v. Harris

• Decision Date: 22 December 1982
• Citation: Com. v. Harris, 443 N.E.2d 1287, 387 Mass. 758 (Mass. 1982)
• Parties: COMMONWEALTH v. Herman L. HARRIS.
• Court: Supreme Judicial Court of Massachusetts

Page 1287

443 N.E.2d 1287

387 Mass. 758

COMMONWEALTH v. Herman L. HARRIS.

Supreme Judicial Court of Massachusetts Hampshire.

Argued Sept. 14, 1982.

Decided Dec. 22, 1982.

Steven J. Rappaport, Boston, for defendant.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

The defendant was convicted of murder in the first degree of his mother, Velma P. Kulis, and his sister, Mozelle J. Evans, murder in the second degree of a boarder in his mother's house, George D. Healey, assault and battery with a dangerous weapon on his niece, Deborah A. Evans, breaking and entering in the nighttime with intent to commit a felony, entering a dwelling to commit armed assault on Deborah A. Evans, and assault with intent to murder Deborah A. Evans. Some five months after the defendant had filed a claim of appeal as to all the convictions, his trial counsel was suspended from the practice of law. ¹ A new attorney was appointed to prosecute the appeal, and thereafter the defendant's pro se motion seeking appointment of present appellate counsel was allowed. On August 21, 1981, we remitted to the trial judge the defendant's motion under G.L. c. 278, § 33E, for a new trial, which alleged denial of effective assistance of counsel at trial. That motion was denied on October 16, 1981. The appeals from denial of that motion and from the convictions were argued together here. We affirm the judgments.

1. The defendant's chief contention is that his trial counsel should have investigated and determined whether he had a defense of lack of criminal responsibility. We summarize those facts material to his motion for a new trial. The bodies of Velma P. Kulis, Mozelle J. Evans, and George D. Healey were found on the morning of March 21, 1977, in their Easthampton home. Each had died of gunshot wounds of the head sustained between 10 P.M. on Saturday, March 19, and 2 A.M. on Sunday, March 20. Bullets retrieved from the bodies and the scene were handcast, i.e., not commercially manufactured. The fourth victim, Deborah A. Evans, was found alive in her bed with a gunshot wound above her left eye. Approximately 6 weeks earlier, Mrs. Kulis had instituted suit for fraud and conversion of her property in the Circuit Court of Virginia Beach, in Virginia, against the defendant, a noncommissioned naval officer stationed in Virginia. In statements to police officers, the defendant first said he had been in Virginia on March 19 [387 Mass. 760] and 20. (He later testified that he had driven to his mother's Massachusetts home on March 19.) He admitted owning a .357 Ruger revolver and claimed to have lost a .357 Dan Wesson revolver in 1976, under circumstances he could not precisely recall. He admitted that he used handcast bullets and owned bullet molding equipment. A fiber taken from a broken rear window at the scene of the murders was consistent with clothing owned by the defendant.

At trial, bank employees testified that the defendant had appeared with Mrs. Kulis at a Northampton bank in September, 1976, where Mrs. Kulis removed her own and Mozelle J. Evans's names from a certificate of deposit account and substituted the defendant's name "to protect his mother from having his sister spend the money;" that on the defendant's advice Mrs. Kulis added to the account most of the contents of her checking account, bringing the total funds to approximately $30,000; and that in November, 1976, the defendant's wife flew to Massachusetts and closed out the account, ultimately depositing the proceeds in a Virginia account from which nearly all was paid out to the couple's creditors. A Northampton insurance agency employee testified that in September, 1976, Mrs. Kulis, accompanied by the defendant, had requested a blank instrument of transfer of a truck owned by her and Mozelle J. Evans, explaining that "[the defendant] said that he could get more money in Virginia for it; and, as soon as he sold the truck, he would send her the money." The defendant testified that the truck was registered the following month in Virginia in his wife's name. An attorney representing Mrs. Kulis in November, 1976, testified that he wrote to the defendant at that time that legal action might be instituted. A fellow seaman testified that the defendant, referring to a letter received from Massachusetts, had said his mother and sister were attempting to get some money from him, and if they did not stop he would "blow them away." His stepson testified that the defendant had asked him on Friday, March 18, to say that they were together in Virginia on the night of March 19. The defendant's niece, Deborah A. Evans, who survived a severe head wound, told police just prior to the trial that she saw the defendant enter the front door on March 19, returned to bed, later heard screaming and ran downstairs to see Mozelle J. Evans and George D. Healey falling. ²

The defendant claims that the "bizarre" nature of the crimes with which he stood charged and the strong evidence against him should have prompted his trial counsel to investigate and discuss with him the possibility of raising a defense of lack of criminal responsibility. He attributes the failure to make this investigation to the diverting influence of his counsel's personal financial problems. Since we do not agree that the trial counsel was obligated in this instance to make such an investigation, we do not reach the issue of his motivation. We note in the margin, however, some of the trial judge's pertinent findings on that question. ³

In considering a claim of ineffective assistance of counsel, we make the two part determination "whether 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--and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). See Commonwealth v. Rondeau, 378 Mass. 408, 412-413, 392 N.E.2d 1001 (1979). The record before us, including the proceedings before the judge who heard the motion for a new trial, does not support the defendant's post-trial contention that his mental state might have been raised as a substantial ground of defense on the facts known to or ascertainable by his attorney. The defendant had no history of mental disturbance or treatment. Cf. Commonwealth v. Prendergast, 385 Mass. 625, 433 N.E.2d 438 (1982); Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980). He had served honorably for twenty years in the United States Navy, retiring in April, 1977, with the rank of First Class Petty Officer. Before trial he had been ordered examined and found competent to stand trial, "well oriented and in good contact ... [having] no hallucinations or delusions ... [able to] differentiate between right and wrong ... not [showing] any psychotic manifestations." The examining psychiatrist concluded that "[t]he charges against him are quite serious. It is possible under stress he may be capable of committing serious acts. Perhaps a further study at Bridgewater may be advisable." The content of this report bears on the issue of trial counsel's knowledge of the defendant's mental condition. Osborne v. Commonwealth, 378 Mass. 104, 112 n. 7, 389 N.E.2d 981 (1979). We agree with the judge that the psychiatrist's findings did not indicate a lack of criminal responsibility, and that his suggestion of further study, "based on no more [than] a mere possibility that under stress the defendant might be capable of serious acts ... would be a slim reed on which to build an insanity defense." We conclude that the facts known or accessible through minimal diligence to the trial counsel were not sufficient to raise a reasonable doubt as to the defendant's mental condition. Osborne v. Commonwealth, supra at 111, 389 N.E.2d 981. Trial counsel's objection to further psychiatric examination proposed by the Commonwealth was reasonable with respect both to the evidence he had of his client's mental condition and to his client's unswerving insistence that he was innocent. At the hearing on the motion for a new trial, trial counsel testified that he had urged the defendant to be truthful with him, explaining that this would determine how the charges would be defended. The defendant maintained his innocence throughout the trial, taking the stand and denying he had fired the shots. He repeated this denial at the post-trial hearing. Assuming the possibility of requiring the Commonwealth to prove both capacity and commission, it is too plain for discussion that the exhibition to the jury of the defendant as a lucid witness maintaining that he did not commit the acts could only weaken and be weakened by an alternative defense that he lacked legal responsibility for those acts.

Without passing upon the defendant's characterization of these crimes, their "bizarre" nature would not, standing alone, have been sufficient evidence of lack of criminal responsibility to raise a jury issue. Osborne v. Commonwealth, supra at 111, 389 N.E.2d 981. See Commonwealth v. Mattson, 377 Mass. 638, 641-645, 387 N.E.2d 546 (1979). Moreover, there was evidence here that the crimes were not senseless but specifically motivated and deliberately planned and executed. The mere fact that the evidence against the defendant was very strong would not have justified asserting an unwarranted defense. In all the circumstances, including the testimony received on the motion for a new trial, we will not fault trial counsel for failing to explore a defense which the record does not show could reasonably have been raised. Commonwealth v. Stevens, 379 Mass. 772, 774, 400 N.E.2d 261 (1980). See Commonwealth v. Bernier, 359 Mass. 13, 21-22, 267 N.E.2d 636 (1971).

2. The defendant challenges the...