Com. v. Lykus

• Citation: 406 Mass. 135,546 N.E.2d 159
• Parties: COMMONWEALTH v. Edward Stanley LYKUS.
• Decision Date: 20 November 1989
• Court: United States State Supreme Judicial Court of Massachusetts

Page 159

546 N.E.2d 159

406 Mass. 135

COMMONWEALTH v. Edward Stanley LYKUS.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued Sept. 13, 1989.

Decided Nov. 20, 1989.

Joseph J. Balliro, Boston (Joseph J. Balliro, Jr., Medford, with him), for defendant.

Philip A. Rollins, Dist. Atty. (Lance Garth, Asst. Dist. Atty., with him), for the Com.

Before LIACOS, C.J., and WILKINS, NOLAN and LYNCH, JJ.

LIACOS, Chief Justice.

The defendant, Edward Stanley Lykus, appeals from the denial of his motion for a new trial. The defendant had been convicted in 1973 for extortion, kidnapping, and murder in the first degree. On appeal, the convictions were affirmed. Commonwealth v. Lykus, 367 Mass. 191, 327 N.E.2d 671 (1975). Subsequently, the defendant filed a motion for a new trial. The motion was denied, and the defendant filed a motion for allowance of appeal from the denial of his motion for a new trial with a single justice of this court. G.L. c. 278, § 33E (1988 ed.). See Leaster v. Commonwealth, 385 Mass. 547, 432 N.E.2d 708 (1982). See also Dickerson v. Attorney General, 396 Mass. 740, 488 N.E.2d 757 (1986). The single justice allowed the defendant's motion to appeal to the full court as to three issues: (1) ineffective assistance of counsel at the original trial through defense counsel's failure to move to suppress evidence obtained by a wiretap; (2) improper instruction by the trial judge regarding the time of death of the victim; and (3) ineffective assistance of counsel at the defendant's sentencing hearing. We affirm the denial of the motion for a new trial, but remand the case for resentencing of the defendant.

We summarize the evidence on which the jury could have based their verdicts. ¹ On November 2, 1972, the victim, Paul Cavalieri, left his home in North Attleborough. Two days later, the victim's mother received a telephone call in which a whispered voice said, "You will receive instructions." In response to this call, Mrs. Cavalieri telephoned the North Attleborough police department. Three days later, the victim's father, Anthony Cavalieri, received a handwritten ransom note, which read: "Tony, we have your son Paul. We want $50,000 in small bills in a brown bag. Don't tell the cops about this because we will be watching very closely and if there are any mess-ups, your son is dead. Come alone with the money and drop it off Tuesday night at 10:00 p.m. at the stop sign off Chestnut Street and Oak Street in back of the pine tree right near it. Your son will be released if there are no mess-ups, because he has never seen us before. You'd better heed to what we say. We know you've notified the police by now so we will be taking precautions. Do as we say and everything will be all right. This is no joke."

The Cavalieris again telephoned the police, and a North Attleborough police detective and an agent of the Federal Bureau of Investigation (F.B.I.) came to the Cavalieri home later that day. At that time, Mr. Cavalieri gave the F.B.I. agent permission to connect a recording device to the Cavalieris' telephone. This device recorded four calls relative to the kidnapping over the next two days.

As a result of these telephone calls, the Cavalieris, in cooperation with the North Attleborough police department and the F.B.I., left the requested ransom money at a certain location. A white male in a station wagon picked up the money. Further investigation by the police led to the arrest of the defendant. He denied having called or written to the Cavalieris and claimed that someone had paid him to pick up the ransom money. On April 12, 1973, the body of Paul Cavalieri was found.

The police took several exemplars of the defendant's voice and sent the tapes of the recorded telephone calls (recordings) and the exemplars to Lt. Ernest Nash of the voice identification unit of the Michigan State police. Using spectrographic voice analysis, Lt. Nash concluded that the defendant's voice was the same voice as that on the recordings. After an extensive voir dire hearing, the judge ruled that Lt. Nash's expert opinions were admissible. ²

The Commonwealth introduced in evidence one of the recordings, which was played for witnesses in open court, and called eight witnesses to identify the voice on the tape. Seven of these witnesses identified the voice as that of the defendant. ³ The Commonwealth also called the medical examiner for Bristol County, who had performed the autopsy on the victim. The medical examiner testified that, in his opinion, the time of death was November 2, 1972, but that death could have occurred a day, a week, or even a month later.

The jury found the defendant guilty of the kidnapping and murder in the first degree of Paul Cavalieri, and extortion from the victim's father. At the sentencing hearing, the trial judge allowed defense counsel the opportunity to be heard. Defense counsel addressed the court as follows: "As you well know, it has been a long trial; you have heard all of the facts, Your Honor. Just for the record, I would like to say that Mr. Lykus is twenty years old, is presently divorced, his wife has filed an action for divorce. He has three brothers and two sisters, and his father is dead. His mother is still living. Thank you, very much." After these comments, the prosecutor requested an "on and after" sentence on the extortion and kidnapping indictments. The judge sentenced the defendant to a term of from ten to fifteen years for extortion, to commence on and after concurrent life sentences for murder and kidnapping.

1. Ineffective assistance of counsel at trial. The defendant claims that the motion judge erred in ruling that he was not denied the effective assistance of counsel at trial. We disagree.

Both art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution guarantee a right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Hurley, 391 Mass. 76, 461 N.E.2d 754 (1984). This right has been recognized as essential to the protection of the fundamental right to a trial. Id. We have held that the right to effective assistance of counsel, afforded a defendant by art. 12, "provide[s] greater safeguards than the Bill of Rights of the United States Constitution." Commonwealth v. Hodge, 386 Mass. 165, 169, 434 N.E.2d 1246 (1982). Thus, if the Massachusetts standard for effective assistance of counsel is met, "the Federal test is necessarily met as well." Commonwealth v. Fuller, 394 Mass. 251, 256 n. 3, 475 N.E.2d 381 (1985).

When faced with a claim of ineffective assistance of counsel, we have stated that the court must undertake "a discerning examination and appraisal of the specific circumstances of the given case to see 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).

The defendant claims that his counsel's failure to file a motion to suppress the recordings of the telephone conversations denied him effective assistance of counsel. ⁴ Although he concedes that his counsel performed admirably in most respects, the defendant claims that the failure to move to suppress was inexcusable in light of the crucial role the recording admitted in evidence played in the Commonwealth's case. Certainly, the record demonstrates that the significance of the recording was not lost on either the prosecution or defense counsel. The Commonwealth presented at least ten witnesses in an effort to link the defendant to the recording, while defense counsel filed four motions designed to nullify or lessen the impact the recording might have on the jury.

The judge, in denying the defendant's claim of ineffective assistance of counsel, characterized the failure to file a motion to suppress as "a reasonable strategic choice." A defendant is not deprived of the effective assistance of counsel simply because defense counsel's reasonable strategic choices fail to produce a verdict of not guilty. Commonwealth v. Callahan, 401 Mass. 627, 635-636, 519 N.E.2d 245 (1988). However, these choices are not entitled to deference unless they are "arguably reasoned tactical or strategic judgments." Id., quoting Commonwealth v. Stone, 366 Mass. 506, 517, 320 N.E.2d 888 (1974). We can think of no "reasonable strategic choice" which would warrant the failure to file a motion to suppress in the circumstances of this case. ⁵

This does not end our inquiry. We must consider the correctness of the judge's ruling that, at the time of the kidnapping, the Massachusetts wiretap statute (G.L. c. 272, § 99) allowed the tap on the Cavalieris' telephone. ⁶ If the wiretap was legal, any motion to suppress recordings obtained with the wiretap would ultimately have failed, and the defendant would not be deprived of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, supra 366 Mass. at 96, 315 N.E.2d 878.

At the time of the kidnapping, G.L. c. 272, § 99, as appearing in St. 1968, c. 738, § 1, provided that the use of wiretaps and other modern electronic surveillance devices to secretly intercept the contents of any wire or oral communication was prohibited unless otherwise exempted from the scope of the statute. ⁷ The provisions of G.L. c. 272, § 99, "[were] designed to ensure that unjustified and overly broad intrusions on rights of privacy [were] avoided." Commonwealth v. Vitello, 367 Mass. 224, 231, 327 N.E.2d 819 (1975). However, § 99B4 exempts from the statutory prohibition the use of wiretaps by law enforcement officials engaged in "an investigation of a designated offense" concerned with...