Com. v. Sellon

Citation380 Mass. 220,402 N.E.2d 1329
PartiesCOMMONWEALTH v. William A. SELLON.
Decision Date25 March 1980
CourtUnited States State Supreme Judicial Court of Massachusetts

Melvin S. Louison, Brockton, for defendant.

Charles J. Hely, Asst. Dist. Atty. (Thomas E. Norton, Asst. Dist. Atty., with him), for Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

Convicted of manslaughter on an indictment charging murder in the first degree, the defendant William A. Sellon appeals. G.L. c. 278, §§ 33A-33G. Sellon also appeals from the denial of a motion for new trial based on a claim that at trial he was denied the effective assistance of counsel. The appeals were consolidated, and we transferred the case here on our own motion. We affirm the judgment and the denial of the motion for a new trial.

Sellon's principal argument 1 is that he was denied the effective assistance of counsel at trial. Sellon points to (1) trial counsel's decision not to offer certain statements made by the victim to hospital nurses, and counsel's failure to interview these nurses; (2) counsel's supposed failure to adequately "prepare" certain defense witnesses; (3) the activities of a disbarred attorney at the counsel table during part of the trial; and (4) counsel's failure to request additional jury instructions or to object to the instructions actually given.

Regarding his conviction Sellon argues assignments of error asserting (1) that his conviction was based on inadmissible hearsay; (2) that certain real evidence was admitted without an adequate foundation; (3) that questions put to a witness by both the prosecutor and the trial judge improperly assumed an ultimate question of fact; and (4) that jury instructions regarding the crime of manslaughter were inaccurate and confusing, and that further instructions, on the drawing of inferences, given to the jury after their deliberations had begun, were impermissibly prejudicial.

We briefly summarize the evidence presented at trial. 2 Shortly before 6 A.M. on Saturday, February 18, 1978, Sellon arrived at the Quincy residence of his father-in-law, Carl Dahl. Sellon knocked on the front door, and Dahl, who was up and dressed at the time, let him in. In his jacket pocket, Sellon had a bottle of highly concentrated plumber's acid. The men proceeded down a hallway to the kitchen.

At the time of the alleged crime, Ellie Rukkinen, a friend of Dahl's from their childhood days in Finland, had been staying at Dahl's home for approximately six months. Rukkinen did not speak English. Rukkinen heard Sellon's knock and saw him in the house with Dahl. When Rukkinen, in a bedroom off the hallway, heard a noise from the kitchen, she went to the kitchen to see what had happened. Dahl was seated on the floor, and a brown substance was spattered on the floor, walls, ceiling, refrigerator, and curtains. Rukkinen, with Sellon's assistance lifted Dahl from the floor, and Rukkinen took Dahl to the bathroom.

Rukkinen testified that in the bathroom, Dahl said to her in Finnish that "Billy (Sellon) hit him (Dahl) the first time from behind." After Rukkinen attempted to wash Dahl off in the bathroom, Dahl was taken to the bedroom. Rukkinen testified that, in the bedroom, within a few minutes of the time she first saw Dahl seated motionless on the floor, he said, in Finnish, "Oh, Billy, why did you do this to me?" (Sellon does not speak Finnish.)

Dahl was taken to Quincy City Hospital and later the same day to University Hospital in Boston, where he was treated for third degree burns covering forty per cent of his body. These burns had been caused by exposure to a highly concentrated acid. Dahl's death on April 15, 1978, was caused by his acid burns and subsequent infection.

1. Ineffective assistance of counsel. In assessing whether a defendant has been denied the effective assistance of counsel, we have engaged in a "two-step inquiry." Commonwealth v. Rondeau, --- Mass. ---, --- a, 392 N.E.2d 1001 (1979). Sellon must show both (1) that the conduct of his trial counsel fell "measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878, 883 (1974), and (2) that "prejudice result(ed) therefrom." Commonwealth v. Rondeau, supra.

a. Failure to call nurses as witnesses. The Commonwealth maintained that Sellon had deliberately poured acid on Dahl. In support of its theory, it offered the two statements Rukkinen said Dahl made just after he was burned. While they were hearsay, these statements were properly admitted as spontaneous exclamations. 3

Sellon, on the other hand, claimed that the acid spilled accidentally. Testifying in his own defense, Sellon indicated that he had brought the acid with him from his home in Canton, where he kept a supply of plumber's acid for use in clearing clogged drains in two apartment buildings which he owned. He testified that upon entering Dahl's house, he went directly to the kitchen, opened the bottle which contained the acid, and then asked his father-in-law to watch how the acid would clear the drain. 4 Noting that the walkway into Dahl's house had been partially covered with snow, Sellon continued that he slipped on the floor of the kitchen, and the contents of the bottle flew all over the room, landing in part on his father-in-law.

A police officer who had responded to the scene on the morning that Dahl was burned testified at trial that Sellon told him, "We were cleaning the sink drain and I slipped and spilled the acid." Sellon's wife, furthermore, testified that at University Hospital on the day he was burned her father told her, "It was an accident."

Sellon's counsel knew that four nurses at Quincy City Hospital had given separate statements to the police to the effect that Dahl had stated at the hospital that he (Dahl) had spilled the acid on himself accidentally. 5 Sellon alleges that trial counsel's failure to call these nurses as witnesses constitutes ineffective assistance of counsel. We disagree.

The choice facing trial counsel in deciding whether or not to call the nurses was more difficult than Sellon suggests. The statements by Dahl to the nurses could have been used to impeach Dahl's statements to Rukkinen which had been admitted as spontaneous exclamations. 6 The judge, however, indicated that if the nurses were called to testify as to what Dahl had said to them, he might permit the introduction of another damaging statement made by Dahl to Rukkinen.

The Commonwealth had attempted to introduce this additional statement through testimony by Rukkinen to the effect that at the hospital Dahl told her, "Look out for Billy (Sellon). He will kill you, just as he tried to kill me." The trial judge ruled this testimony inadmissible since the statement occurred more than an hour after Dahl was burned, and thus could not constitute a spontaneous exclamation. 7 See generally, Commonwealth v. Hampton, 351 Mass. 447, 449, 221 N.E.2d 766 (1966). The judge specifically indicated, however, that he would reverse his decision to exclude this testimony if "any contrary statements" by Dahl (such as his statements to the nurses) were to be introduced by the defense. 8 The choice facing Sellon's trial counsel was further complicated by the fact that Dahl's statements to the nurses directly contradicted Sellon's own testimony in that Dahl said that he, not Sellon, had spilled the acid accidentally. 9

For these reasons the question of whether or not to use the nurses as witnesses posed a significant tactical dilemma. When "arguably reasoned tactical or strategic judgments of a lawyer are called into question," in order to find ineffective assistance of counsel, "we require that such judgments be (shown to be) 'manifestly unreasonable.' " Commonwealth v. Rondeau, --- Mass. ---, --- b, 392 N.E.2d 1001, 1004 (1979), quoting from Commonwealth v. Adams, 374 Mass. 722, --- c, 375 N.E.2d 681 (1978). Since the choice of tactics by Sellon's trial counsel is fairly debatable on the record before us, ineffective assistance of counsel has not been demonstrated. 10

Sellon contends, however, that his trial counsel's failure to interview the nurses, in and of itself, constituted ineffective assistance of counsel. Such an omission by defense counsel in a first degree murder case may well amount to "serious incompetency . . . or inattention of counsel behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878, 883 (1974). However, even if his trial counsel's failure to investigate constitutes sufficient incompetence to satisfy the first of Saferian's two tests, Sellon has failed to show how he was prejudiced by this failure to interview the nurses. In response to Sellon's motion for a new trial, the judge found that the affidavits obtained from the nurses by Sellon's appellate counsel indicate that "(w)hat they (the nurses) would say . . . is really not different from what they had told the District Attorney" (i. e., the statements provided to defense counsel). The record affords no basis for us to conclude otherwise.

b. Failure to prepare witnesses. Sellon argues that his trial counsel failed to "prepare" him (Sellon), his wife, and other family members prior to their testifying as defense witnesses. "Preparation" in this context refers not to a general interview with a witness in order to determine what he or she knows concerning an event, 11 but rather to a discussion designed to review the specific matters likely to be testified to at trial.

Sellon grounds his argument on affidavits by himself and by family members, and on lengthy testimony by his trial counsel at a hearing on his motion for a new trial. During the course of this hearing, trial counsel conceded that he did not prepare one minor witness, Sellon's son Raymond. Trial counsel...

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