Com. v. Mahdi

• Citation: 448 N.E.2d 704,388 Mass. 679
• Parties: COMMONWEALTH v. Abdul J. MAHDI. Petition of Abdul J. MAHDI.
• Decision Date: 08 April 1983
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 704

448 N.E.2d 704

388 Mass. 679

COMMONWEALTH v. Abdul J. MAHDI.

Petition of Abdul J. MAHDI.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Nov. 2, 1982.

Decided April 8, 1983.

Richard A. Johnston, Boston (Robert D. Keefe & Christopher Weld, Jr., Boston, with him), for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

On May 28, 1968, the defendant, Abdul J. Mahdi, ¹ was found guilty by a jury of the crimes of murder in the first degree, assault with intent to murder by means of a dangerous weapon, and two counts of armed robbery. ² He was sentenced to the Massachusetts Correctional Institution at Walpole for life imprisonment on the murder conviction, for eighteen to twenty years on the assault conviction, and eighteen to twenty years on the armed robbery conviction. The latter two sentences were to take effect concurrently, but from and after the sentence on the murder conviction. ³ Mahdi contends that his convictions should be reversed because (1) he was deprived of his constitutional right to effective assistance of counsel, and (2) affirmance would cause a miscarriage of justice resulting from improper and prejudicial questioning and closing comments by the district attorney.

We find the criticism by the defendant of his trial counsel's performance to be overdrawn, despite some slackness in defense counsel's preparation and advocacy. A more just description of the trial is that the interaction between a barely adequate defense attorney and an experienced but overzealous district attorney caused the intrusion of personalities and other irrelevancies which obscured the search for truth. ⁴ Cf. Commonwealth v. Johnson, 372 Mass. 185, 196, 361 N.E.2d 212 (1977). We conclude that the references by the district attorney to the exercise by the defendant of his right to remain silent after arrest, and to the racial origins and religious beliefs of the defendant, present a substantial risk of a miscarriage of justice and thus require reversal of the convictions.

The facts are summarized as follows. ⁵ Mahdi had been a Muslim since 1955. He was a member of the Muslim mosque in Springfield and spent many evenings and weekends engaged in religious activities, including travelling throughout New England and New York to disseminate religious publications. On the evening of December 29 1967, he was asked to travel to New York City with Odris Hastings and Arthur Hurston, Jr., ⁶ to pick up religious newspapers. After obtaining money from the mosque for gasoline, Mahdi purchased with these funds a gun and a blackjack which he carried around intermittently for the next three days. ⁷ After Mahdi picked up the other two men and drove with them to New York, they distributed newspapers at various cities in New England. They returned to Springfield the next evening. The following afternoon, December 31, Mahdi drove to Albany with Hastings, Hurston, and others for a religious meeting and returned to Springfield late the same night. Plans were made to return to Albany the next day to distribute religious newspapers. Early the next morning, January 1, 1968, Mahdi picked up Hastings and Hurston for the drive to Albany. Mahdi claimed that he needed to buy a few grocery items for his family before leaving for Albany. Mahdi drove to the Knox Street Market operated by Ernest Ladner, Sr., and Ernest Ladner, Jr., because he knew it would be open. Ladner, Sr., knew Mahdi well because Mahdi was a former neighborhood resident, a regular customer of the store, and once had painted the store.

Inside the store, Hastings and Hurston bought some fruit from Ladner, Sr., at the front counter while Mahdi went to the rear. Mahdi then returned to the front of the store with Ladner, Jr., and, holding a gun, demanded money. Ladner, Sr., testified that, after taking approximately $180 from him, Mahdi directed him and his son into the store refrigerator and ordered them to stay there for fifteen minutes. A few seconds later, Mahdi returned and told them that he would have to kill them. According to Ladner, Sr., Mahdi asked Hastings and Hurston what he should do, and then he shot both of the Ladners. Hastings and Hurston both, however, testified that they were already out of the store when Mahdi shot the victims. ⁸ Mahdi testified that he remembered taking the money, and the gun going off in his hand. He testified, however, that he could not recall anything else that occurred at the store, and anything thereafter, for about twenty minutes until he was on the Massachusetts Turnpike. Ladner, Jr., was immediately killed by a single gunshot; Ladner, Sr., survived three gunshot wounds.

Hastings testified that on the way from the market to the automobile, he asked Mahdi what had happened in the store. Mahdi stated that he had shot the Ladners, but, when asked why, he did not know. Mahdi then drove aimlessly around Springfield for twenty to thirty minutes, not saying anything. Mahdi eventually drove the automobile to Albany, still without talking. Once in Albany, they sold religious papers. In the only other conversation about the shooting, Hastings asked Mahdi what he intended to do, and Mahdi replied that he did not know. Hastings suggested that they return to Springfield. Upon returning to Springfield, Mahdi dropped Hastings and Hurston at their respective homes and returned to his own home.

Mahdi was arrested on January 2, 1968, after Ladner, Sr., identified him. On being given his Miranda warnings, Mahdi initially remained silent. Subsequently, he gave the police a written statement telling them where the weapon was located, authorizing a search of his house and garage, and giving fictitious names for Hastings and Hurston.

Mahdi retained counsel to represent him. On January 3, Hastings and Hurston went to Mahdi's counsel for legal advice and indicated their desire to surrender themselves to the police. Counsel gave them the names of several attorneys and said that he would represent them only for the purpose of surrender. On January 4, 1968, another attorney and Mahdi's counsel accompanied Hastings and Hurston to the Springfield police station. The other attorney told the police that Hastings and Hurston were the two men with Mahdi at the Knox Street Market. Thereafter, each codefendant was represented by separate counsel.

It was undisputed that Mahdi had committed the homicide. His sole defense was that he lacked the mental capacity to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of law. The insanity defense was based on a claim that he was under stress because of fear of excommunication from his religious group for failing properly to provide for his family, his financial pressures, his lack of sleep caused by anxiety as to fulfilling his religious obligations, his family background, and his ill health. ⁹ On February 2, 1968, Mahdi was ordered by the trial judge to Bridgewater State Hospital to determine his competency to stand trial. After receiving the report of psychiatrists, the judge ordered the defendant returned to the Hampden County jail, and trial began on May 13, 1968. ¹⁰

1. Ineffective assistance of counsel. The defendant contends that his convictions should be reversed because he was deprived of his constitutional right to effective assistance of counsel under the Sixth Amendment, applicable to the States through the due process clause of the Fourteenth Amendment to the Constitution of the United States, and art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. See Cuyler v. Sullivan, 446 U.S. 335, 343-344, 100 S.Ct. 1708, 1715-16, 64 L.Ed.2d 333 (1980); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

a. Standard to measure effectiveness of counsel. We note, at the outset, that at the time of Mahdi's trial, counsel's assistance was held to be constitutionally inadequate when it was so deficient as to make the trial "a farce and a mockery of justice," when it created "an apparency instead of the reality of contest and trial," or when it "blotted out the substance of a defense." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), quoting Matthews v. United States, 449 F.2d 985, 994 (D.C.Cir.1971) (Leventhal, J., concurring). Commonwealth v. LeBlanc, 364 Mass. 1, 14, 299 N.E.2d 719 (1973). Commonwealth v. Bernier, 359 Mass. 13, 18, 267 N.E.2d 636 (1971), quoting Scott v. United States, 334 F.2d 72, 73 (6th Cir.), cert. denied, 379 U.S. 842, 85 S.Ct. 81, 13 L.Ed.2d 48 (1964). See Commonwealth v. Rondeau, 378 Mass. 408, 412, 392 N.E.2d 1001 (1979); Commonwealth v. Dunker, 363 Mass. 792, 797-798, 298 N.E.2d 813 (1973). None of the defendant's allegations of the ineptitude of defense counsel would, if accepted, demonstrate that the conduct of defense counsel, standing alone, fell short of the minimal standards of performance in effect at the time of trial.

This court since has adopted a more lenient standard. See Commonwealth v Saferian, supra. "After Saferian, a defendant need show only that the conduct of his lawyer was 'measurably below that which might be expected from an ordinary fallible lawyer.' ... In addition to a showing of incompetence of counsel, our cases usually require a demonstration of prejudice resulting therefrom." Commonwealth v. Rondeau, supra. See Commonwealth v. Harris, 387 Mass. 758, 761-762, 443 N.E.2d 1287 (1982).

Current counsel for the defendant and the Commonwealth have not briefed or argued the question whether the standard set forth in Saferian should be applied retroactively to this 1968 trial. Thus, we do not reach the question whether defense counsel fell short of the Saferian standard. The inadequacies of defense counsel are relevant, however, to our disposition of this appeal. This is so because this question, considered with the actions of the...