Com. v. Tabor

• Decision Date: 13 December 1978
• Parties: COMMONWEALTH v. Wendell J. TABOR, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 190

384 N.E.2d 190

376 Mass. 811

COMMONWEALTH v. Wendell J. TABOR, Jr.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Sept. 11, 1978.

Decided Dec. 13, 1978.

P. J. Piscitelli, Brockton, for defendant.

Robert M. Payton, Asst. Dist. Atty., for the Com.

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

ABRAMS, Justice.

Pursuant to G.L. c. 278, §§ 33A-33G, the defendant Wendell J. Tabor, Jr. (Tabor), appeals his convictions of armed robbery and murder in the first degree of Francis X. Garrison (Garrison). Tabor argues assignments of error concerning (1) the denial of his pretrial motion to suppress certain evidence; (2) the denial of his motions for directed verdicts on the armed robbery and felony-murder; (3) the admission of a prior criminal conviction of the defendant; and (4) the claim that the defendant's conviction of both murder in the first degree and armed robbery constitutes double jeopardy. He also argues as error the denial of a second motion for a new trial, based on newly discovered evidence of an alleged conflict of interest on the part of the assistant district attorney ¹ by the representation of the widow in a claim for compensation as the widow of the victim of a violent crime under G.L. c. 258A. We conclude that the judge correctly denied the motion for a new trial, based on the arguments made by Tabor. However, the issue raised by the defendant's motion involves the apparently unintentional violation of a statute, G.L. c. 12, § 30. We think such a violation, even though unintentional, amounts to an error of law requiring a new trial. Commonwealth v. Gibbs, 4 Gray 146, 148 (1855).

We summarize the evidence. Garrison, a retired painting contractor, walked with a severe limp. He was seen with Tabor at a Store 24 in Brockton at approximately 2:45 A.M., on August 30, 1975, where Garrison was characterized as "obviously drunk."

At the store, Garrison asked for a sandwich and two packs of cigarettes. He then handed Tabor a ten dollar bill and Tabor paid for the purchases with the money. The store manager handed the change ($7.81) to Tabor, and Tabor handed the money to Garrison. Garrison and Tabor then left the store. Garrison stumbled as he left the store but then was seen walking with Tabor along Belmont Street toward the center of town.

A few minutes later, Garrison's cry for help brought a passerby who found him bleeding from stab wounds. Police and an ambulance were summoned. Garrison was taken to Brockton Hospital, where he died as a result of his wounds.

Although Garrison had been seen carrying a substantial amount of money in his wallet late in the afternoon of August 29, no wallet was found in his possession at the hospital. ² Moreover, no money was found in Garrison's pockets. Concealed in his shoes, however, were a twenty dollar bill and two one dollar bills.

On August 29, Tabor tried to obtain some money from the manager of a restaurant where he had worked for a short period of time. The manager refused and Tabor became belligerent and told the manager that he would "get money one way or another." ³ Nonetheless, early the next morning Tabor was seen at the restaurant with money.

Moreover, after the stabbing but before Tabor learned of Garrison's death, Tabor told a number of people that he had "made a big score the night before," that he "almost had to kill somebody to get it (money)," and that he "almost had to break somebody's head to get it (money)." Tabor paid his landlord $40, the day Garrison died. ⁴

The next day, the police talked to Tabor. He told them that he met Garrison on Main Street, that Garrison asked him (Tabor) where he (Garrison) could buy some cigarettes, and that Tabor gave Garrison directions to a store. Tabor said he decided to go to the store with Garrison because he (Tabor) thought he could get some money from Garrison.

He told the police that, after leaving the store, Garrison punched him and as a result Tabor then knocked Garrison down. Tabor said that, when Garrison stood up, he hit him (Garrison) again. Tabor stated that when Garrison came at him a third time, he (Tabor) pulled a knife out of the sleeve of a heavy green jacket which he was wearing, stabbed him (Garrison) and left. Tabor admitted that, after the fight started, he could have left the scene without stabbing Garrison, but said the he "didn't run away from anything."

Tabor denied taking any money from Garrison. However, he told the police that at the time of the crime he was unemployed, and supported himself by panhandling. He also told the police that he usually carried a knife, that he wore the heavy green jacket to conceal the knife, and that he kept the knife in the sleeve of the jacket, secured by an elastic cuff. According to Tabor, he used the knife to "roll stiffs and to protect himself against queers."

The jury found Tabor guilty of both armed robbery and murder in the first degree. ⁵ The judge sentenced him to concurrent terms of life imprisonment for each offense.

1. Motion for a New Trial.

Approximately one month after his conviction, the defendant filed a second motion for a new trial ⁶ pursuant to G.L. c. 278, § 29. He alleged that "newly discovered evidence has revealed a conflict of interest" on the part of the assistant district attorney who prosecuted the case.

In support of his motion, counsel for the defendant filed an affidavit in which he stated at the same time that the assistant district attorney prosecuted the defendant, the same assistant district attorney was representing the victim's widow in an action for compensation under G.L. c. 258A, as the widow of the victim of a violent crime. Counsel for the defendant also denied any knowledge of the alleged conflict of interest until June 9, 1976, sometime after the judge denied his first motion for a new trial. After hearing arguments of counsel, ⁷ the judge denied the defendant's motion for a new trial.

In his motion, the defendant claims that the assistant district attorney's representation of the widow in the civil action denied him a fair trial. He alleges that because the assistant district attorney failed to reveal his representation of the widow to the defendant during the trial, the defendant was foreclosed from a potentially fruitful area of cross-examination of the victim's widow and daughter during the trial. He further alleges that the fact that the assistant district attorney would be entitled to attorney's fees from the successful representation of the widow, see G.L. c. 258A, § 4, "bore directly on prosecutorial conduct and discretion." Therefore, the defendant concludes that he should have a new trial.

The Commonwealth agrees that the assistant district attorney who prosecuted the case was counsel for the widow in a civil action under G.L. c. 258A. It is agreed that this civil claim was pending at the time the criminal case was tried. ⁸ The Commonwealth also agrees that the assistant district attorney did not disclose his civil representation of the widow to the court or to the defendant prior to June 9, 1976.

The Commonwealth argues, however, that the civil representation of the widow created no conflict of interest. The Commonwealth further maintains that, even if such representation was a conflict of interest, the defendant points to no specific instances of "overreaching or overzealousness" at trial. Therefore, the Commonwealth contends, the defendant can show no actual prejudice from the assistant district attorney's representation of the widow. The Commonwealth concludes that the representation of the widow by the assistant district attorney in an action brought under G.L. c. 258A provides no grounds for a new trial in the criminal proceedings, even if it were "inappropriate."

As argued by the defendant, his motion does not warrant a new trial. The defendant's claim that knowledge of the "conflict of interest" would have opened a new area of cross-examination of the victim's widow at trial is without merit. To the extent that the defendant did not cross-examine the widow concerning whether or not she had filed a claim under G.L. c. 258A, he was not precluded from such injury. ⁹

Next, the defendant relies on a series of cases involving claims of ineffective assistance of counsel arising out of a joint or dual representation by defense counsel to support his assertion that the assistant district attorney's "conflict of interest" requires a new trial. See, e. g., Commonwealth v. Geraway, 364 Mass. 168 170-173, 301 N.E.2d 814 (1973); United States v. Donahue, 560 F.2d 1039, 1040-1041 (1st Cir. 1977). The Commonwealth argues, and we think correctly, that these cases are inapplicable to a question of prosecutorial conflict of interest because each of them is grounded in a conflict of interest on the part of defense counsel which may have divided his loyalty to his client. See Commonwealth v. Geraway, supra; United States v. Donahue, supra at 1043. Compare Commonwealth v. Davis, --- Mass. ---, --- - --- ^A, 384 N.E.2d 181 (1978); Commonwealth v. Wright, --- Mass. --- ^B, 383 N.E.2d 507 (1978); Commonwealth v. Leslie, --- Mass. ---, --- ---- ^C, 382 N.E.2d 1072 (1978); Id. at --- - --- ^D, 382 N.E.2d 1072 (Liacos, J., concurring). The Commonwealth argues that, even if the assistant district attorney's representation of the widow in the civil action created a "conflict of interest," the conflict does not divide the loyalties of the assistant district attorney, since "whatever conflict existed involved a purely unitary purpose, and not a situation in which a Counsel faced two distasteful alternatives in terms of dividing loyalties when clients assumed antagonistic postures." Accordingly, the Commonwealth argues, the defendant is not entitled to a new trial. ¹⁰

However, in reviewing the defendant's claim we are confronted with an apparently unintentional violation of a statute. ¹¹ General Laws c. 12, § 30, provides that "(n)o prosecuting officer shall...