Com. v. Jones

• Decision Date: 18 August 1988
• Parties: COMMONWEALTH v. Jeffrey R. JONES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1288

526 N.E.2d 1288

403 Mass. 279

COMMONWEALTH v. Jeffrey R. JONES.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued March 7, 1988.

Decided Aug. 18, 1988.

William C. Madden, Boston, for defendant.

Robert P. Snell, Asst. Dist. Atty., for Com.

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

HENNESSEY, Chief Justice.

On September 12, 1981, the body of a woman (the victim) was found lying face down in a shallow stream in Brockton. She had been raped, beaten, and strangled. Police investigation disclosed that she had last been seen alive the night before in the company of the defendant and one Richard Palaza. Complaints were issued charging each with assault with intent to rape. Palaza was arrested. The police obtained a warrant for the defendant's arrest as well, but were unable to locate him, as he had left the State.

On September 20, Captain John Bukunt and Sergeant Robert Morrill of the Brockton police department met with attorney Kenneth Elias, who had been retained by the defendant. They told Mr. Elias that they had heard that the defendant was telling an account of the victim's death to the effect that Palaza alone had raped and murdered the victim, while the defendant had merely helped to dispose of the body. They also told Mr. Elias that, if the defendant's story were true, he should return to Massachusetts to testify against Palaza. Mr. Elias told the officers that he wanted the defendant to receive a grant of immunity from prosecution in exchange for his testimony. Captain Bukunt agreed to discuss the subject of immunity with the assistant district attorney assigned to the investigation, Bernard Mulholland.

On September 21, Mr. Elias met with Captain Bukunt, Sergeant Morrill, and Mr. Mulholland at the Plymouth Courthouse. After some negotiation, Mr. Elias and Mr. Mulholland reached an agreement. Mr. Elias then brought in the defendant for questioning. Before any substantive questions were asked of the defendant, Mr. Elias memorialized the agreement on the audiotape of the meeting. ¹ The defendant was then questioned. The substance of his statement was that Palaza alone had raped and killed the victim, while the defendant merely had helped to dispose of the body. The defendant subsequently testified to this effect before a grand jury investigating the victim's death.

The police and the grand jury continued their investigation. On September 29, Palaza, at his own request, gave a statement to the police and testified before the grand jury, to the effect that the defendant alone had raped and killed the victim, and that he, Palaza, merely had helped to dispose of the body. Ultimately, the grand jury indicted both Palaza and the defendant on charges of aggravated rape and murder.

Sometime in December, 1983, an assistant district attorney brought to Mr. Elias's attention the possibility of a conflict of interest in Mr. Elias's representation of the defendant. Mr. Elias was then representing Captain Bukunt and other members of the Brockton police department on unrelated civil matters. Although the issue had not occurred to him at the time he was retained to represent the defendant, and he did not believe that his representation of Bukunt and the other officers conflicted with his representation of the defendant, Mr. Elias immediately discussed the matter with the defendant. The defendant told him that he did not perceive a conflict, and that he wanted Mr. Elias to continue to represent him. On March 12, 1984, when the case came before the Superior Court, a judge examined the defendant concerning the possibility of a conflict of interest between Mr. Elias's representation of Captain Bukunt and other Brockton police officers and his representation of the defendant. ² The judge concluded that the defendant fully understood the circumstances, and that he had voluntarily and intelligently decided to continue to be represented by Mr. Elias.

Palaza was tried separately and was acquitted. In July, 1984, after Palaza's trial, and before his own, the defendant filed a motion to dismiss the indictments on the ground that the Commonwealth had violated its agreement not to prosecute him. At the hearing on the motion, Captain Bukunt testified as to the events surrounding the making of the agreement and the defendant's testifying. Mr. Elias represented to the court that Captain Bukunt had committed perjury in his testimony, and that it would be necessary for Mr. Elias to testify in the defendant's behalf. Mr. Elias subsequently filed a motion to suppress the defendant's statement and grand jury testimony; however, it was marked, "Late Don't Docket," and no hearing on the motion was held. Neither Captain Bukunt nor Mr. Elias testified at the defendant's trial.

After the hearing, the judge denied the defendant's motion to dismiss the indictments, on several grounds. ³ First, he ruled that the Commonwealth had not violated the literal terms of the agreement, as the promise not to prosecute applied only to the crime of being an accessory after the fact, and not to that of being a principal to rape and murder. Second, the judge concluded that the agreement was expressly conditioned on the occurrence of two contingencies; namely, the Commonwealth's subjective, good faith belief that Jones was telling the truth, and the independent corroboration, through further investigation, of Jones's story that he had participated in the crimes only as an accessory after the fact, and that these conditions had failed. Finally, the judge concluded that Jones had not relied on the Commonwealth's promise.

At trial, the defense presented no witnesses and the defendant did not take the stand. Prior to charging the jury, the judge conferred with counsel regarding the instructions he intended to give the jury. The prosecutor stated that he was proceeding, in part, on the theory that Palaza and the defendant were joint venturers in the rape and murder of the victim. Mr. Elias questioned the propriety of such an instruction, in light of Palaza's previous acquittal. Later in the conference, the judge stated that he would instruct the jury on the theory of joint venture, ⁴ and the defendant saved his rights as to this instruction.

The jury found the defendant guilty of aggravated rape and of murder in the first degree. He was sentenced to concurrent life terms at the Massachusetts Correctional Institution at Cedar Junction.

The defendant, with new counsel, filed a postconviction motion for a new trial, alleging that he was denied a fair trial, in contravention of his Federal and State constitutional rights, because his trial counsel, Mr. Elias, labored under a conflict of interest which deprived the defendant of effective assistance of counsel. After hearing, the trial judge denied this motion.

On this appeal from convictions and from the denial of his motion for a new trial, the defendant renews his contention that his trial counsel, Mr. Elias, labored under a conflict of interest which deprived the defendant of his constitutional rights to effective assistance of counsel. He further contends that the trial judge, in deciding to instruct the jury on the theory of joint venture, improperly took into consideration extra-record evidence presented at Palaza's previous trial, at which the same judge presided, and so denied the defendant his constitutional right to procedural due process. We reject both these contentions, and now affirm.

1. Ineffective assistance of counsel; conflict of interest. The defendant contends, first of all, that his constitutional rights to counsel were violated because Mr. Elias rendered ineffective assistance, as a result of his conflict of interest, at the time the defendant originally was interviewed by the police and the prosecutor. We need not address the question whether Mr. Elias was at this early stage burdened by a conflict of interest, as we conclude that the defendant had no constitutional right to counsel at the time of his interrogation.

"[I]t has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him." Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972), and cases cited. The same is true of the right to counsel under art. 12 of the Declaration of Rights of the Massachusetts Constitution. See Commonwealth v. Simmonds, 386 Mass. 234, 238, 434 N.E.2d 1270 (1982). Although a complaint and an arrest warrant had been issued prior to Mr. Elias's alleged ineffectual assistance, this does not constitute the commencement of "adversary proceedings" in Massachusetts. Commonwealth v. Smallwood, 379 Mass. 878, 884, 401 N.E.2d 802 (1980). See Commonwealth v. Mahoney, 400 Mass. 524, 528-529, 510 N.E.2d 759 (1987) (dictum); Commonwealth v. Mandeville, 386 Mass. 393, 401, 436 N.E.2d 912 (1982) (dictum); Simmonds, supra 386 Mass. at 237-238, 434 N.E.2d 1270 (dictum). Having no constitutional right to counsel at this stage in the proceedings, the defendant can scarcely succeed on a claim that the counsel he did have rendered ineffective assistance. "The right to effective assistance of counsel can be no broader than the right to counsel on which it is based." ⁵ People v. Claudio, 59 N.Y.2d 556, 561 n. 3, 466 N.Y.S.2d 271, 453 N.E.2d 500 (1983). See Commonwealth v. Stirk, 392 Mass. 909, 913, 467 N.E.2d 870 (1984). See also Rachlin v. United States, 723 F.2d 1373, 1378 (8th Cir.1983); United States v. Zazzara, 626 F.2d 135, 138 (9th Cir.1980); Brown v. United States, 551 F.2d 619, 620-621 (5th Cir.1977). The principle of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), has not been raised or argued, nor should it have been, in the circumstances of this case. "Apart from the defendant's right to counsel in exercise of his Miranda rights, he had no other constitutional...