Com. v. Phinney

• Decision Date: 06 March 2006
• Citation: 843 N.E.2d 1024,446 Mass. 155
• Parties: COMMONWEALTH v. Roland Douglas PHINNEY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

843 N.E.2d 1024

446 Mass. 155

COMMONWEALTH v. Roland Douglas PHINNEY, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 6, 2005.

Decided March 6, 2006.

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David W. Cunis, Assistant District Attorney, for the Commonwealth.

David R. Yannetti for the defendant.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

Pursuant to her gatekeeper function, G.L. c. 278, § 33E, a single justice of this court allowed the Commonwealth to appeal from an order of a Superior Court judge granting the defendant's motion for a new trial based on ineffective assistance of counsel. The Commonwealth argues that the motion judge erred because the defendant did not meet his burden to demonstrate counsel's ineffective assistance where the third-party culprit evidence the defendant seeks to introduce at a new trial would largely be inadmissible and, in any event, would have made no difference in the outcome of the trial. Because we conclude that the motion judge did not commit an error of law or other abuse of discretion in concluding that defendant's counsel was ineffective, thus depriving the defendant of an otherwise available substantial grounds of defense, we affirm the decision of the motion judge.

Background and procedure. The details underlying this case are set forth in Commonwealth v. Phinney, 416 Mass. 364, 365, 622 N.E.2d 617 (1993), which affirmed the defendant's conviction of murder in the first degree based on extreme atrocity or cruelty and deliberate premeditation.

On February 8, 1980, the victim, who resided at 25 South Walker Street in Lowell, was beaten to death in her apartment, suffering multiple blows that caused massive head injuries. Id. at 365, 622 N.E.2d 617. Relevant to the issue before us is that the victim's wounds could have been caused by a blunt instrument with a rounded end, like a club; the victim could have been attacked after 11 P.M.; and there likely was blood on the perpetrator's clothing.

The defendant was a suspect in 1980, but the murder remained unsolved until 1989, when the defendant confessed to the police following a long interrogation. The defendant, who lived next door to the victim, stated that he entered the victim's apartment while she was sleeping and began pulling her underwear down so that he could take pictures of her vagina. When she awakened, the defendant beat her with his camera. Id. at 365, 622 N.E.2d 617. The defendant also stated that he washed the blood off the camera and, when police retrieved it pursuant to a search warrant some nine years later, no blood was found on the camera. Id. at 365, 367, 373, 622 N.E.2d 617.

At trial the defendant's defense was that his confession, which had been reduced to writing, was not voluntary. An expert for the defense testified that the defendant was of limited intelligence, and accordingly, some of the words used in the confession could not have been used by the defendant. Defense counsel emphasized the length of the interrogation that preceded the defendant's confession and argued that the testimony of an interrogating detective was unreliable in its near perfect recall of seemingly every move the defendant made during the interrogation and confession. The defendant's mother also testified, providing the defendant with an alibi for the time of the murder, and defense counsel stressed that there was no evidence linking the defendant to the crime.¹ In addition, defense counsel pointed to potential third-party culprits seen on the night of the murder: two unidentified men in downtown Lowell, one with blood on his T-shirt, who asked a motorist for a ride to a hospital; and an unidentified man, who was with the victim's roommates and who was seen arguing with the victim outside her apartment.²

In November, 2002, represented by new counsel, the defendant filed a motion for a new trial arguing, in relevant part, that his trial counsel furnished constitutionally ineffective assistance because he failed to introduce at trial evidence implicating another man, Mark Barger, as the victim's killer. The defendant further argued that this evidence, which was contained in police reports, also established police failure to investigate Barger. A Superior Court judge who was not the trial judge allowed the motion, later granting the Commonwealth's motion for reconsideration and request for an evidentiary hearing. After conducting the evidentiary hearing, in a written memorandum of decision and order dated August 31, 2004, the motion judge denied the Commonwealth's motion for reconsideration and let stand her previous decision allowing the defendant's motion for a new trial based on ineffective assistance of trial counsel.³ The Commonwealth sought leave to appeal.

Discussion. 1. Facts relevant to motion for a new trial. Under Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), a judge may allow a motion for a new trial "if it appears that justice may not have been done." Because the judge who acted on the defendant's motion for a new trial was not the trial judge, deference is owed only to the motion judge's assessment of the credibility of witnesses; this court is in "as good a position as the motion judge to assess the trial record." Commonwealth v. LeFave, 430 Mass. 169, 176, 714 N.E.2d 805 (1999), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). We note that, here, the issue depends on evidence presented at the hearing on the motion for a new trial, which we now set forth. See Commonwealth v. Grace, supra.

Over one year after the murder, in April, 1981, a Lowell police officer, Lawrence Hickey, and his partner responded to a report of harassing telephone calls and a "Peeping Tom" at 104 South Walker Street. One of the residents, Carol Fortin, indicated to police that her estranged husband, Mark Barger, could have been making the calls and that she suspected a link between her husband and the murder victim, whose apartment was also located on South Walker Street. We set forth the motion judge's summary of the three reports Hickey wrote in response to the conversation he had with Fortin,⁴ which is fully supported in the record:

"Regarding Carol Fortin's and Mark Barger's marriage, the Hickey reports indicate that Barger had been very unstable and Fortin was still afraid of him in April 1981. Barger had struck and threatened Fortin numerous times during their marriage and by the end of 1979, Barger had become increasingly violent and moody. On January 27, 1980, Barger attacked Fortin with an axe handle. Subsequently, she sought treatment from a psychiatrist, who, after meeting with Barger as well, advised her to separate from him because he could potentially be dangerous and might hurt Fortin or their children. On February 7, 1980, [the day before the murder] Barger was scheduled to see the psychiatrist again, but failed to keep his appointment. The report also describes Fortin's account of Barger's activities on the night [the victim] was murdered: `Mark left for work at Pandel where he worked the 3 P.M. to 11 P.M. shift. Carol stated that Mark walked home from work in the evening and that he carried a club (she described it as "sort of a billy club") for his protection. Carol says that Mark did not get home from work that evening until 4 A.M. and that when he came home she waited a short while and when she could no longer hear him moving she left her bedroom to check on him. At this point she found him sleeping on the couch and that his work clothes were in the washing machine being washed. (Carol states that her husband had never washed his clothes after work) (emphasis in original) . . . he said that he had gotten dye on his clothes at work . . . later that day after reading of the [victim's murder] Carol said to Mark "isn't it too bad about that girl" to which Mark replied "she probably deserved it." At this point Carol says she made reference to the girl's character as portrayed in the paper and Mark replied "she wasn't the goody two shoes they make her out to be."' Also, the report states that `Carol does not know what became of Mark's billy club' and that `a neighbor [Ruth Montbleau] also stated that she believes Mark "knew some of the girls from the college."'[<sup>5</sup>] Finally, the reports state a suspected link between Barger and [the victim's murder]: `[Fortin] although visibly upset and apparently terrified of Mark has agreed to talk to Insp. [Larry B.] McGlasson [of the Lowell police department] . . . about any possible connection between her husband's erratic behavior and the [victim's murder].'"⁶

The motion judge concluded that these reports were sent to the defendant's trial counsel⁷ and found credible trial counsel's testimony that he never saw them. In September, 1993, Hickey read about the defendant's appeal from his conviction, visited trial counsel, and told him about the reports.⁸ Trial counsel wrote a letter to the defendant's parents advising them of the visit and telling them that the information "is not enough for a new trial." He also asked Hickey to accompany his investigator when the investigator went to speak with Fortin, who was still living at 104 South Walker Street. The judge found that, according to Hickey, Fortin disavowed the information in the reports because she did not want to revisit her life with Barger.

The defendant's motion for a new trial was filed by new counsel. It was accompanied by three affidavits, one by Hickey, one by the neighbor mentioned in Hickey's police reports, and one by a private investigator hired by one of the defendant's postconviction attorneys. Fortin also submitted an affidavit, which accompanied the Commonwealth's opposition to the defendant's motion.⁹ Testifying at the motion hearing were Fortin; the defendant's trial counsel; one of the defendant's postconviction attorneys; Hickey; and McGlasson.

We set forth the motion judge's summary of Fortin's testimony,...