Com. v. Stevens

• Decision Date: 08 February 1980
• Citation: 379 Mass. 772,400 N.E.2d 261
• Parties: COMMONWEALTH v. Thomas J. STEVENS, III.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 261

400 N.E.2d 261

379 Mass. 772

COMMONWEALTH v. Thomas J. STEVENS, III.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 6, 1979.

Decided Feb. 8, 1980.

Thomas A. Hensley, Brockton, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant was convicted in September, 1978, after a jury waived trial. The trial judge denied a motion for a new trial. In this appeal, in which he is represented by newly appointed counsel, the defendant argues that (1) he was required improperly to go to trial with his court-appointed counsel, and (2) he was denied the effective assistance of counsel at his trial or, in the alternative, his trial was in effect a defective plea of guilty. We transferred the appeal here on our own motion. We affirm the convictions.

The defendant was charged with armed assault with intent to murder and armed robbery of a Braintree motel auditor in November, 1975. Counsel from the Massachusetts Defenders Committee was appointed to represent him. The defendant fled the day before his case was to be tried in July, 1976. He claims that he fled because his counsel was unprepared for trial. The record does not show that counsel was not prepared for trial on the day following the defendant's departure. His counsel had appeared at the defendant's probable cause hearing and various pretrial motions had been allowed. The failure of counsel to obtain a transcript of the probable cause hearing is not shown to have prejudiced the defendant. The defendant's own actions make insignificant the lack of preparation, if any, of counsel in July, 1976.

When the defendant was returned to court in May, 1978, he objected to the appointment of another attorney from the Massachusetts Defenders Committee, and he argued further that the lack of preparation of his original counsel required the dismissal of the indictments. Certainly the motion to dismiss the indictments was properly denied. We see no substance to that claim, nor was there any reason not to continue with appointed counsel.

The defendant claims that he was denied his constitutional right to effective assistance of counsel because his counsel did not pursue an insanity defense. In assessing a claim of ineffective assistance of counsel, first we must consider 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." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878, 883 (1974). Secondly, there must be some showing that, if counsel had not erred, something might have been accomplished. See Commonwealth v. Adams, --- Mass. ---, --- ^a, 375 N.E.2d 681 (1978); Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977); Saferian, supra at 98, 364 N.E.2d 1260. There are situations in which the failure to investigate a possible defense of lack of criminal responsibility will amount to ineffective representation of a defendant. See Osborne v. Commonwealth, --- Mass. ---, --- ^b, 389 N.E.2d 981 (1979). The record in this case, however, even after presentation of the motion for a new trial, is insufficient to raise any reasonable issue as to the defendant's mental condition. The defendant had never been treated for a mental condition. Counsel had no obligation, indeed no right, to present a defense of lack of criminal responsibility which could not be supported by evidence. See Commonwealth v. Bernier, 359 Mass. 13, 21, 267 N.E.2d 636 (1971). There is nothing in this record to show that if defense counsel had conducted a more complete investigation, any reasonable argument that the defendant lacked criminal responsibility would have been discovered.

We come then to what happened at trial. Defense counsel did not cross-examine the prosecution's witnesses. The case against the defendant was strong because the victim previously knew the defendant as a guest at the motel. Defense counsel offered to "stipulate to the government's witnesses' statements and their stories," but the trial judge did not accept the offer. After the defendant took the stand, his counsel stated "that the defendant understands exactly what he is doing in this case," and the defendant testified that he understood that he and his counsel were going through this procedure as a means to protect his appellate rights. In denying the motion for a new trial, the trial judge observed that "the strategy of the trial was to let the government make out its case beyond a reasonable doubt if able to do so. The defendant claimed he had no knowledge of the crimes of which he was accused. He was thus not in a favorable position for changes of pleas."

At the hearing on the motion for a new trial, the defendant testified that he never agreed to stipulate to the witnesses' statements or stories. His trial counsel was not called to testify. The defendant did testify that he understood at the time of trial that he would lose his appellate rights concerning the denial of pretrial motions and the ineffectiveness of counsel if he pled guilty. He also agreed that he made no suggestions to his counsel during the course of his trial, although he had the opportunity to do so. The trial judge stated, in denying the motion for a new trial, that he remembered the case well, and that he had observed no evidence of hostility or lack of cooperation between the defendant and his attorney.

We have here a...