Com. v. Millyan

• Decision Date: 10 February 1987
• Parties: COMMONWEALTH v. Andrew J. MILLYAN (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 934

503 N.E.2d 934

399 Mass. 171

COMMONWEALTH v. Andrew J. MILLYAN

(and a companion case ¹).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 4, 1986.

Decided Feb. 10, 1987.

William C. Madden, Boston, for Andrew J. Millyan.

Judy G. Zeprun, Asst. Dist. Atty. (Timothy M. Burke, Boston, with her), for the Commonwealth.

Robert A. Sherman (Mary Winstanley O'Connor, Boston, with him) for Arthur A. Corbett.

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

NOLAN, Justice.

Three appeals arise out of the same crime and raise common issues of law. ² On September 21, 1981, the defendant, Andrew J. Millyan, carrying a loaded shotgun, entered the Sandbar Lounge in Revere Beach. He was accompanied by a codefendant, Robert L. Cobb; the other codefendant, Arthur A. Corbett, waited in a car parked in an alley next to the lounge. Within a few minutes, Millyan fired the shotgun. The pellets from the blast struck Dana Hill, a customer playing pool in the rear of the bar, about the face and skull. Hill died three days later. The defendants were indicted and tried on the charge of murder in the first degree on the theory of joint enterprise. On May 19, 1982, the jury found Corbett and Millyan guilty of murder in the first degree; Cobb was convicted of murder in the second degree. Commonwealth v. Cobb, 399 Mass. 191, 503 N.E.2d 945 (1987).

Both Millyan and Corbett filed posttrial motions, requesting the trial judge to order a new trial or to set aside the verdict as against the weight of the evidence. Millyan's motions were denied while Corbett's motions were waived until after notice of appeal was filed. The judge then sentenced both men to life imprisonment. Millyan and Corbett thereafter retained new counsel. After entry of the case in this court, pursuant to G.L. c. 278, § 33E (1984 ed.), Millyan's new attorney filed a motion for a new trial. On March 27, 1984, this court ordered that the motion be remitted to the trial judge for consideration. The judge conducted an extensive inquiry. He denied the motion for a new trial, but ordered the verdict of guilt reduced to murder in the second degree. Subsequently, the judge also reduced Corbett's verdict to murder in the second degree. The Commonwealth appeals the reduction in the verdicts. The defendants request that this court order a new trial or further reduce their verdicts to manslaughter. We decline to take any of these steps.

We summarize the facts as presented by the Commonwealth. The murder in the bar was precipitated by an attack on one James Rich, a friend of Millyan. On September 20, 1981, the day before the murder, at approximately 2 A.M., Rich left the Sandbar Lounge. On the street he was accosted by a man whom he did not recognize. The man accused Rich of being a member of the Devil's Disciples, a motorcycle gang. A fight ensued in which the man was joined by three others. Rich was knocked and pinned to the ground and was stabbed repeatedly in the legs. During the course of the attack, one of the assailants told Rich that "[Y]our buddy Andy [Millyan] is next." The attackers fled, leaving Rich bleeding on the sidewalk. Rich was taken to a hospital where he remained for about nine days.

Around 11 A.M., Rich telephoned Millyan at his home. He described what had happened to him and told Millyan of the assailant's threat. Rich also suggested that Millyan obtain Rich's shotgun for protection. That evening, Millyan, Corbett, and another man, James Vassill, visited Rich in the hospital. Rich conversed principally with Millyan, whom he had known for about fourteen years. The two men discussed the attack on Rich, which caused Millyan and Corbett to become very disturbed. Rich urged Millyan and the others not to take any retaliatory action.

After leaving the hospital, Millyan and Corbett went to Cobb's home. They informed Cobb of the attack on Rich, which caused him to become quite upset. Millyan and Corbett left to go to Millyan's house. That evening Millyan and Corbett, who was driving, ³ drove by the Sandbar Lounge; Millyan asked Corbett to stop. Millyan jumped from the car, a convertible, without opening the door and grabbed a tire iron from the back seat. He appeared really "mad" and "mean looking." Corbett remained in the car. Millyan was holding a tire iron in each hand and was "ranting and raving." Millyan was "screaming" that his friend had been stabbed and he intended "to get someone for it." Millyan eventually calmed down and was persuaded to leave before any trouble developed. Millyan and Corbett then drove away.

At around 3 P.M. the next day, September 21, 1981, Millyan, Cobb, Corbett, and an unidentified woman drove to a friend's house where Millyan obtained Rich's shotgun. The shotgun was not loaded; Millyan checked the gun to make sure that it was clean and then loaded it with five rounds, keeping one in his pocket. Millyan placed the gun under the front seat of the car.

Later in the afternoon, they stopped at the home of Cobb's sister and spent about one hour there. Around 6:30 P.M., they rode past the Sandbar Lounge and Millyan told Corbett to park the car. Corbett drove into an alley alongside the bar. Millyan grabbed the shotgun case from underneath the seat, unzippered it, and took the gun with him into the bar. Cobb went with Millyan; Corbett stayed in the car.

Only ten or twelve people were inside the bar. The Sandbar Lounge was not large. As Millyan and Cobb entered, a horseshoe-shaped bar was to their right. In the rear the victim, Dana Hill, was playing pool with a friend. The poolroom was separated from the barroom by a partition which contained three cutouts. These cutouts, shaped like windows, were used for passing drinks to the customers in the poolroom. The bottom of each cutout was almost two and one-half feet from the floor.

After entering the bar, Millyan and Cobb stopped a few feet from the door. Millyan "pumped" the shotgun and this action chambered a round in preparation for firing. Millyan shouted that he had gotten a message from a friend that had been stabbed here by some Hell's Angels and if he saw any Hell's Angels in the bar, he was going "to blow them away." Alan Nicosia was seated on the other side of the bar running parallel to the partition. Nicosia got up and walked toward the end of the bar. He attempted to persuade Millyan to put down the gun, but Millyan only became more agitated.

Meanwhile, Hill was standing at one end of the pool table, directly behind one of the partition cutouts. This placed Hill in a direct line with Millyan. Hill had long hair and a beard. He was not a member of any motorcycle gang; he was waiting for his girl friend who was a barmaid.

After making his threat, Millyan pointed the shotgun toward the rear of the bar. The gun was held at shoulder level. He then pulled the trigger, firing a shell that contained almost 300 pellets. At least fifty of these pellets struck Hill about the head. Hill fell to the floor screaming for help while the rest of the customers scattered for protection.

Millyan then pumped another round into the chamber. At this point, Cobb grabbed Millyan's arm and said, "Come on, let's go." They ran into the alley where Corbett and the woman were waiting in the car. Apparently the woman, upon hearing the shot, fled from the car. Millyan sat down on the trunk with his feet on the back seat, holding the shotgun. The car then sped away. While fleeing, the defendants drove over a bridge and Millyan threw the shotgun into the water. Shortly afterward, police, who had been notified of the shooting, stopped the car, and arrested the three men.

Claims of Defendant Millyan

We shall treat Millyan's claims of error and then Corbett's. Millyan maintains that his trial was infected by four errors: (1) trial counsel's performance was constitutionally deficient; (2) the judge failed to instruct the jury on the defense of accident; (3) the judge erroneously excluded testimony which was vital to Millyan's defense; and (4) the judge improperly allowed Millyan to be impeached by the introduction of criminal charges brought against him. We conclude that Millyan cannot prevail on any of these claims.

1. Ineffective assistance of counsel. The cornerstone of Millyan's appeal is that his trial counsel's performance constituted ineffective assistance of counsel, resulting in a violation of his State and Federal constitutional rights. Millyan contends that trial counsel failed to present evidence of Millyan's history of alcohol and drug abuse and his intoxication at the time of the homicide, failed to present the testimony of an independent ballistics expert who would have contradicted the findings of the Commonwealth's ballistician, and abandoned the defense of accident in his closing argument.

The standard of review we apply in assessing claims of ineffective assistance of counsel is well-established. ⁴ We must determine "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).

At the time of trial, Millyan's lawyer possessed considerable evidence that his client had a long history of alcohol and drug abuse. During the hearings on the motion for a new trial, appellate counsel introduced these documents in evidence. ⁵ He also elicited testimony about Millyan's troubled past ⁶ and, in particular, that Millyan had been drinking heavily during the weekend before the shooting. After examining these materials and evaluating the testimony, the motion judge, who was also the trial judge, concluded that trial counsel exercised "good judgment" in keeping this information from the jury. We are equally satisfied...