Com. v. Street

Decision Date03 March 1983
Citation446 N.E.2d 670,388 Mass. 281
PartiesCOMMONWEALTH v. Richard A. STREET.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Carlo A. Obligato, Roxbury, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty. (Robert J. McKenna, Jr., Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

The principal issue in this case is whether the defendant was deprived of effective assistance of counsel as a result of trial counsel's eleventh hour decision, in closing argument, to abandon an insanity defense to indictments charging murder in the first degree and assault with intent to murder, being armed with a dangerous weapon. We hold that the defendant is entitled to a new trial.

The defendant was employed under the name Gary Kagan as a dishwasher at the C'est Si Bon restaurant on Arlington Street in Boston. This restaurant was managed by the decedent, Mark Robinson, and John Aument. The defendant's employment at the restaurant terminated after approximately three months (September to November, 1980) when he failed to report to work. There was evidence that the defendant was displeased with the manner in which he was treated by his employer, although there was no evidence that he was, in fact, mistreated in any way during his employment.

On Thursday, December 11, 1980, at about midnight, Robinson and Aument left the restaurant, carrying the night's receipts in a New England Merchants Bank deposit bag inside a briefcase. They walked to Aument's Honda automobile, which was parked in a public alley adjacent to the restaurant, got into the car, and sat there waiting for the engine to warm up. Aument was on the driver's side; Robinson was on the passenger side. At this point, Aument heard a sound and saw that Robinson had been wounded in the neck. As Aument grabbed Robinson's hand, Aument was shot in the face under his right eye. He heard more shots and then saw that someone was leaning through the open passenger door across the front seat and was grabbing at Aument's coat, shaking him. The assailant wore a red ski mask which exposed only the assailant's eyes, nose, and mouth. Aument noticed that the assailant's eyes were very familiar to him. The assailant shot Aument, striking him in the right arm. Believing the assailant wanted money, Aument tossed the briefcase containing the deposit bag out the open passenger door. The assailant never took the money. Robinson died as a result of multiple gunshot wounds to the head and neck. Aument was wounded three times, twice in the head and once in the forearm, and he survived his injuries.

The defendant was indicted for murder in the first degree and for assault with intent to murder, being armed with a dangerous weapon. In his opening statement to the jury, defense counsel (not counsel on appeal) emphasized that the defendant admitted he committed the acts which resulted in Robinson's death and Aument's injuries, but that the defendant claimed he lacked criminal responsibility because of insanity. We view defense counsel's cross-examination of prosecution witnesses as intended primarily to raise some doubt as to the defendant's sanity. At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty by reason of insanity. After the judge denied the motion, the defendant produced a psychiatrist who testified in considerable detail that the defendant suffered from three mental diseases or defects: (1) schizophrenia, acute and chronic, paranoid type; (2) sociopathic personality; and (3) severe character disorder. In conformity with Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967), the defendant's psychiatric witness testified that, as a result of these diseases or defects, the defendant was unable either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. This expert witness based his opinion both on his own contact with the defendant and on the voluminous record of the defendant's psychiatric history, which included at least seven hospitalizations. 1 This witness had been acquainted with the defendant on a professional basis since 1969, although there was a period of years when the defendant and this psychiatrist did not meet professionally. There was considerable evidence that the defendant had a history of drug abuse.

On rebuttal, the Commonwealth presented a psychiatric expert who testified that the defendant was able to conform his conduct to the requirements of the law and that the defendant could appreciate the wrongfulness of his actions. Thus, we note that, with one exception, 2 the conclusions of the two experts were diametrically opposed. We note, in addition, that the judge instructed the jury that they were allowed to disbelieve any expert testimony. See Commonwealth v. Genius, 387 Mass. 695, 698, 442 N.E.2d 1157 (1982); Commonwealth v Laliberty, 373 Mass. 238, 242, 366 N.E.2d 736 (1977).

In closing argument, defense counsel indicated that the defendant admitted to causing Robinson's death and Aument's injuries. Defense counsel indicated that the defendant did the act with a plan and with intelligence. 3 Defense counsel then said, "I argue to you in this case that a fair verdict is not one of not guilty by reason of insanity. Quite frankly and in all candor, as an advocate for this man, the evidence is in there. He is crazy, Mr. Foreman. He is just not crazy enough under our law. He's crazy, but he planned the crime. He's sick, but he wore the mask. He's sick, but he hid from the police. He's crazy, but he ran away, but he tried not to get arrested. He's crazy, but not enough. So in this particular case I ask you to bring back a second-degree verdict. Why? Why? Because, based on all the evidence in this case, based on all the evidence that's before you, I argue to you that this shouldn't be a first-degree murder conviction." Further, he stated to the jury, "[T]he judge will tell you that you determine either he is guilty of first-degree murder, second-degree murder, or not guilty by reason of insanity. I have taken by reason of insanity away. I have told you there is not enough here."

The judge submitted the case to the jury with four possible verdicts on the murder indictment: (1) guilty of murder in the first degree; (2) guilty of murder in the second degree; (3) not guilty by reason of insanity; or (4) not guilty. The judge submitted the first degree murder indictment solely on the theory of deliberate premeditation. The judge also submitted to the jury the indictment charging assault with intent to murder. The judge instructed the jury on criminal responsibility under McHoul and mental impairment under Commonwealth v. Gould, 380 Mass. 627, 405 N.E.2d 927 (1980). The jury returned verdicts of guilty of murder in the first degree and of assault with intent to murder. The judge sentenced the defendant to a life term at the Massachusetts Correctional Institution at Walpole for the first degree murder conviction and to a twelve to fifteen year term at M.C.I. Walpole for the conviction of assault with intent to murder. The sentences were to be served consecutively. We reverse.

The standard we apply in determining whether the defendant was deprived of his right to effective assistance of counsel is well-settled in this Commonwealth. We must determine "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 that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Accord Commonwealth v. Westmoreland, 388 Mass. 269, 446 N.E.2d 663 (1983); Commonwealth v. Harris, 387 Mass. 758, 761-762, 443 N.E.2d 1287 (1982); Commonwealth v. Levia, 385 Mass. 345, 352, 431 N.E.2d 928 (1982). We will not reverse a conviction on this ground unless the defendant demonstrates "that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977). Accord Commonwealth v. Dalton, 385 Mass. 190, 195, 431 N.E.2d 203 (1982). "When the arguably reasoned tactical or strategic judgments of a lawyer are called into question, we do not 'second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty.' " Commonwealth v. Rondeau, 378 Mass. 408, 413, 392 N.E.2d 1001 (1979), quoting Commonwealth v. Stone, 366 Mass. 506, 517, 320 N.E.2d 888 (1974). "Instead, we require that such judgments be 'manifestly unreasonable' (Commonwealth v. Adams [374 Mass. 722, 728, 375 N.E.2d 681 (1978) ] ), and this typically means loss of 'an otherwise available, substantial ground of defence.' " Commonwealth v. Rondeau, supra, quoting Commonwealth v. Saferian, supra. Accord Commonwealth v. Daigle, 379 Mass. 541, 544, 399 N.E.2d 1063 (1980). See also Commonwealth v. Bernier, 359 Mass. 13, 18, 267 N.E.2d 636 (1971) (effective assistance of counsel does not mean successful assistance of counsel).

If believed, the evidence elicited by defense counsel, both during cross-examination of the Commonwealth's witnesses and during the...

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