Com. v. Nardone

• Decision Date: 20 November 1989
• Citation: 406 Mass. 123,546 N.E.2d 359
• Parties: COMMONWEALTH v. Joseph N. NARDONE, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 359

546 N.E.2d 359

406 Mass. 123

COMMONWEALTH v. Joseph N. NARDONE, Jr.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 11, 1989.

Decided Nov. 20, 1989.

Chrystal Murray, Committee for Public Counsel Services, for the defendant.

Kathy S. Rabin, Asst. Dist. Atty., for the Com.

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

LYNCH, Justice.

The defendant has appealed from his convictions of assault with intent to kill, assault and battery by means of a dangerous weapon, and unlawful possession of a firearm. We transferred the case to this court on our own motion. The defendant was indicted on a charge of assault with intent to murder (G.L. c. 265, § 18), but convicted of the lesser-included offense of assault with intent to kill (G.L. c. 265, § 29). The charges against the defendant arose from an ultimately fatal gunshot wound suffered by the defendant's wife, Maureen Nardone, on May 23, 1986. ¹ On that day, police and fire department personnel, responding to an emergency call, arrived at the Nardones' home in Cambridge. The defendant led them to an upstairs bedroom, where they found the victim lying unconscious on a bed with a single gunshot wound in her head and a small pistol in her hand.

The defendant told the police that his wife had attempted suicide. At least two aspects of the shooting, however, were inconsistent with a suicide attempt. First, the appearance of the victim's wound and lack of gun powder residue on the victim suggested that she had been shot from a distance. In addition, the condition of the gun indicated that it had been handled by someone other than the victim. ² Furthermore, the defendant was the only person present in the house with the victim other than the defendant's bedridden father, and several witnesses testified that, while being led away from the house after his arrest, the defendant shouted, "I shot her."

The defendant argues that his three convictions should be set aside because: (1) he was deprived of the effective assistance of counsel when defense counsel told the jury that he would produce a ballistics expert to testify in support of the defendant's version of the facts but later failed to do so; (2) the judge erroneously admitted both "bad acts" character evidence and irrelevant evidence; and (3) there was insufficient evidence as a matter of law to support the convictions.

In addition, the defendant argues that his conviction of assault with intent to kill should be set aside because it was error for the judge to instruct the jury on this lesser- included offense of assault with intent to murder.

We reject the defendant's first three arguments and therefore affirm his convictions for assault and battery by means of a dangerous weapon, and unlawful possession of a firearm. As to the defendant's fourth argument, we agree that it was error for the judge to instruct the jurors that they could find the defendant guilty of assault with intent to kill as a lesser-included offense of assault with intent to murder. We therefore reverse the conviction for assault with intent to kill, and remand the case for further proceedings consistent with this opinion.

1. Ineffective assistance of counsel. The defense proceeded on the theory that Maureen Nardone had attempted suicide. Therefore, a significant issue was whether the victim's wound could possibly have been inflicted at close range by the victim herself. Experts called by the Commonwealth testified that gunpowder residue, called "stippling," is normally detectable in and around close range gunshot wounds, and that wounds inflicted at point-blank range are normally characterized by a jagged-edged appearance, called "starring."

Defense counsel in his opening statement announced that a defense ballistics expert would testify that Maureen Nardone could have fired the gun. On the fifteenth day of trial, however, defense counsel informed the court that his retained ballistics expert had become "very uncomfortable" with his planned testimony. After contacting several experts, defense counsel did locate another ballistics expert. But following voir dire questioning of this proposed substitute, defense counsel reported to the court that he had made a "strategic decision" not to call a ballistics expert. The defendant now claims that this decision, coupled with defense counsel's earlier statement to the jury that he would produce a ballistics expert, amounted to ineffective assistance of counsel.

The standard for measuring the effectiveness of counsel under Massachusetts law is "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 so, "whether it has likely deprived the defendant of an otherwise available, substantial ground of defense." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Accordingly, a defense counsel's strategic decisions at trial do not amount to ineffective assistance of counsel unless they are "manifestly unreasonable." Commonwealth v. Rondeau, 378 Mass. 408, 413, 392 N.E.2d 1001 (1979). Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978). Likewise under the Federal Sixth Amendment, ineffective assistance of counsel exists only where there is both a deficient performance by counsel and the likelihood of serious resulting prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.2052, 2064, 80 L.Ed.2d 674 (1984). The Supreme Court has stated that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690, 104 S.Ct. at 2066. The defendant's claim of ineffective assistance fails under both of these standards. ³

Nothing in the record suggests that defense counsel's reference to ballistics testimony in his opening statement reflected inadequate preparation, incompetency, or inattention. Rather, it is demonstrated that counsel retained a well-qualified expert before trial, arranged for him to view and test the relevant evidence, and had a reasonable expectation that his testimony would aid the defense.

Moreover, defense counsel was able to advance the defense theory of suicide through skillful cross-examination of the Commonwealth's experts. He successfully elicited testimony enabling him to argue that (1) gun powder residue initially present on the victim's head may have remained undetected, (2) the absence of stippling is not necessarily inconsistent with a self-inflicted wound, and (3) the evidence was consistent with a shot fired through a pillow or blanket.

Finally, counsel's failure to call a ballistics expert, as promised, was clearly a decision forced upon him by events over which he had no control. Well into the trial, when counsel learned that the retained ballistics expert was no longer willing to support the defense theory, counsel contacted a substitute expert, briefed him on the case, and arranged for him to appear before the court for voir dire. It was only when it became apparent that the substitute testimony would not appreciably advance the defendant's theory of the case beyond what counsel had already established through cross-examination of the Commonwealth's experts that counsel finally decided not to call a ballistics expert at all. In the circumstances the failure to call a ballistics witness, as promised, was not ineffective assistance of counsel.

The defendant's reliance on Anderson v. Butler, 858 F.2d 16 (1st Cir.1988), ⁴ is misplaced. In Anderson, defense counsel made his opening statement at the conclusion of the prosecution's case, promising expert witnesses, merely one day before he rested without doing so. As the United States Court of Appeals for the First Circuit emphasized, id. at 18, this rapid sequence made defense counsel's failure to produce the witnesses quite dramatic. Here, by contrast, defense counsel's promise to produce a ballistics expert occurred at the commencement of trial on March 17, 1987, and may well have been forgotten by the jurors by the time the defense finally rested on April 13, 1987, twenty-seven days later. In addition, the originally retained expert in this case changed his opinion after the trial had commenced, thus forcing defense counsel to confront a dilemma not present in Anderson. Here, sticking to the original plan was not a realistic option.

2. The evidentiary claim. The defendant objects to the admission of evidence of the victim's 1984 stay at Dove House, a shelter for battered women. ⁵ He argues here that the evidence was inadmissible bad character evidence and too remote in time. We have stated, however, that "[e]vidence of a hostile relationship between a defendant and his spouse may be admitted as relevant to the defendant's motive to kill the victim spouse." Commonwealth v. Gil, 393 Mass. 204, 215, 471 N.E.2d 30 (1984). See Commonwealth v. Borodine, 371 Mass. 1, 8, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977). The evidence was admissible for this purpose, even if it tended to show prior bad acts on the part of the defendant. Commonwealth v. Martin, 357 Mass. 190, 192, 257 N.E.2d 444 (1970).

Moreover, the question of remoteness was a matter within the discretion of the trial judge. See Commonwealth v. Todd, 394 Mass. 791, 798, 477 N.E.2d 999 (1985); Commonwealth v. Gil, supra 393 Mass. at 215, 471 N.E.2d 30.

The defendant also argues that evidence of stress and turmoil within the Nardone household, evidence of the defendant's Vietnam experience and multiple medical problems, evidence of the defendant's gun collection, and evidence of marital discord between the Nardones was improperly admitted.

Not only did the defense fail to pursue objections to this evidence, but, in an apparent effort to establish the victim's motive for suicide, defense counsel...