Com. v. Sowell

• Decision Date: 28 June 1993
• Docket Number: No. 91-P-834,91-P-834
• Citation: 609 N.E.2d 492,34 Mass.App.Ct. 229
• Parties: COMMONWEALTH v. Robert SOWELL.
• Court: Appeals Court of Massachusetts

Page 492

609 N.E.2d 492

34 Mass.App.Ct. 229

COMMONWEALTH v. Robert SOWELL.

No. 91-P-834.

Appeals Court of Massachusetts Suffolk.

Argued June 12, 1992.

Decided March 22, 1993.

Further Appellate Review

Denied June 28, 1993.

Greta A. Janusz, New Bedford, for defendant.

Jane A. Sullivan, Asst. Dist. Atty., for the Commonwealth.

Before JACOBS, GILLERMAN and GREENBERG, JJ.

JACOBS, Justice.

After a Superior Court jury found him guilty of second degree murder, the defendant retained new counsel and appealed to this court. The conviction was affirmed in Commonwealth v. Sowell, 22 Mass.App.Ct. 959, 494 N.E.2d 1359 (1986), and the Supreme Judicial Court denied the defendant's petition for further appellate review. 398 Mass. 1104, 498 N.E.2d 124 (1986). In 1988, the defendant filed a motion for a new trial which was argued to the trial judge in 1991 by a third attorney, his current counsel. On appeal from the denial of that motion, the defendant argues (1) that the cumulative effect of the trial judge's erroneous jury instructions violated his constitutional right to a fair trial, (2) that both trial and direct appeal counsel ineffectively assisted him, and (3) that newly discovered evidence presented to the motion judge requires a remand for findings, an evidentiary hearing, or an order for new trial. We affirm the denial of the motion for new trial.

As a general rule, a defendant is precluded from asserting, in a motion for new trial, claims of error which he could have raised, but did not raise, at trial or on appeal. Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973). Commonwealth v. Lowe, 405 Mass. 1104, 1105, 540 N.E.2d 1308 (1989). Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 14, 490 N.E.2d 1195 (1986). This preclusive principle has been held to limit review notwithstanding that the claimed errors may be of constitutional dimension. See Commonwealth v. Underwood, 358 Mass. 506, 511-512, 265 N.E.2d 577 (1970); Commonwealth v. Antobenedetto, 366 Mass. 51, 58-59, 315 N.E.2d 530 (1974); Commonwealth v. Miranda, supra 22 Mass.App.Ct. at 18-19, 490 N.E.2d 1195. Accordingly, the judge correctly declined to review the defendant's assertions of claimed errors in jury instructions to which objection was not taken either at trial or on direct appeal.

Relying on one of the recognized exceptions to this general rule of waiver, see Commonwealth v. Miranda, supra at 14-18, 490 N.E.2d 1195, the defendant argues that some of the trial issues were resurrected and preserved for appellate review by the judge's consideration of them. See Commonwealth v. Buckley, 17 Mass.App.Ct. 373, 374, 458 N.E.2d 781 (1984). That argument overlooks the judge's awareness of and sensitivity to the principle of revival of waived issues and his express statement that he was not addressing, in the motion proceedings, issues which "could have been ... raised either at trial or in the direct appeal." ¹ His two-paragraph commentary upon issues raised in the motion for new trial, filling less than one page of a four-page decision, hardly constitutes the unqualified and extensive consideration of trial questions, ibid., which is indicative of a perception "that a miscarriage of justice might otherwise result." Commonwealth v. Harrington, 379 Mass. 446, 449, 399 N.E.2d 475 (1980).

The defendant makes claim to another recognized exception to the waiver rule by arguing, in his motion for new trial and before us, that both trial counsel and direct appeal (appellate) counsel were ineffective. See Commonwealth v. Miranda, supra at 17-18, 490 N.E.2d 1195. His challenge, as set out in his brief, is grounded solely on his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and not upon any State constitutional right. ² Accordingly, our review is governed by the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). That standard has been found to be the same for both trial and appellate counsel. See Matire v. Wainright, 811 F.2d 1430, 1435 (11th Cir.1987), citing Peoples v. Bowen, 791 F.2d 861 (11th Cir.), cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 597 (1986). The Strickland standard requires that "the defendant must first show that 'counsel's performance was deficient' in that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense' in that 'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' " Commonwealth v. Cardenuto, 406 Mass. 450, 454 n. 8, 548 N.E.2d 864 (1990), quoting from Strickland v. Washington, supra 466 U.S. at 687, 104 S.Ct. at 2064. Federal courts, in addressing the issue of appellate counsel's effectiveness under the Strickland standard, have focused upon whether appellate counsel "failed to raise a significant and obvious issue ... which ... may have resulted in a reversal of the conviction, or an order for a new trial...." Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986). ³

The defendant argues that trial counsel's representation was deficient in seven specific respects and, in addition, sets forth approximately fourteen claimed deficiencies of counsel in relation to the jury instructions, several of the latter being repetitive of his general assertions of error intrinsic in the instructions delivered at trial. He further maintains the existence of a nexus between the performance of trial counsel and appellate counsel in that the latter failed to argue the errors of the former on direct appeal. The review of such contentions has been described as requiring a determination "whether the issues which [the defendant] claims appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial, and were so obvious from the trial record that the failure to present such issues amounted to ineffective assistance of appellate counsel." Gray v. Greer, 800 F.2d at 647.

We, therefore, turn to the trial court record which was before this court in the first appeal. The evidence indicated that "the defendant and another man (James Doherty) went to the victim's apartment.... Shortly after the defendant and Doherty left the building, the victim was found in his apartment bleeding to death from a severe stab wound." Commonwealth v. Sowell, supra 22 Mass.App.Ct. at 959, 494 N.E.2d 1359. Both the Commonwealth and the defendant tried and argued the case on the basis that the stabbing was a solitary venture--with the prosecution relying primarily on evidence that the victim, in a dying declaration, identified the defendant as the assailant and the defendant grounding his defense on the testimony of two witnesses to the effect that Doherty, who was dead at the time of trial, had admitted to the stabbing. The issue of joint venture was introduced only by the judge's "unsolicited" instruction. Id. at 962, 494 N.E.2d 1359. Our review of the trial record confirms the observation made by the judge in his decision on the motion for new trial that the defendant's strategy "was well thought out" by experienced trial counsel and "was aimed at obtaining an acquittal," and that "the defendant personally concurred in [that] approach."

The defendant, by his wide-ranging attack on appellate counsel's and, in turn, trial counsel's performance, sparing virtually no aspect of their representation, misperceives the role of competent appellate advocacy. The challenge is not to identify every plausible argument but rather to argue those issues which are most likely to be resolved in favor of one's client. "Legal contentions, like the currency, depreciate through over-issue." Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 3313-3314, 77 L.Ed.2d 987 (1983), quoting from Justice Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951). " '[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986), quoting from Jones v. Barnes, supra 463 U.S. at 751, 103 S.Ct. at 3312. Our review of the transcripts of the trial and the defendant's brief on direct appeal, read in the light of this court's opinion in Commonwealth v. Sowell, supra, supports the conclusion that appellate counsel selected for argument the critical issues in the trial and generally did not argue points that were either irrelevant or considerably weaker and that, in any event, were likely to detract from the force of the stronger arguments. The defense at trial reasonably was premised on the defendant being totally uninvolved in the stabbing and not being present at the time of its occurrence. Appellate counsel, therefore, logically focused on evidence that implicated his client and not on the tangential matters now argued by the defendant that are more distantly related to the central issue. Appellate counsel devoted a substantial part of his brief to arguing that a "dying declaration" of the victim implicating the defendant erroneously was admitted together with evidence of consciousness of guilt. Substantial reliance on these arguments was tactically sound since they attacked the core of the prosecution's case and had plausible support in the record. Additionally, appellate counsel reasonably argued that the judge's instructions, as a whole, were fatally defective and specifically addressed the unsolicited joint enterprise charge and the judge's withdrawal of involuntary manslaughter from the jury's consideration.

By contrast, the defendant's claims of ineffective assistance of counsel comprise assertions which, even if correct, involve matters which relate to...