Com. v. Williams

• Decision Date: 12 February 2009
• Docket Number: SJC-09737
• Citation: 900 N.E.2d 871,453 Mass. 203
• Parties: COMMONWEALTH v. Zeno WILLIAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

900 N.E.2d 871

453 Mass. 203

COMMONWEALTH v. Zeno WILLIAMS.

SJC-09737

Supreme Judicial Court of Massachusetts, Norfolk.

Argued December 5, 2008.

Decided February 12, 2009.

Leslie W. O'Brien, Boston, for the defendant.

Pamela Alford, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

A Superior Court jury convicted the defendant Zeno Williams, of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder.¹ She was also convicted of armed robbery. Represented by new counsel, the defendant appeals from her convictions and from the denial of her motion for a new trial, claiming that she was denied the effective assistance of counsel in two respects: counsel should have argued, in support of a motion to suppress evidence, that the defendant's mother lacked authority to consent to a search of the defendant's personal papers; and counsel should have introduced evidence to corroborate the defendant's claim that she suffered from battered woman's syndrome at the time of her flight from the murder scene.² She also requests that we exercise our extraordinary power to reduce the verdict pursuant to G.L. c. 278, § 33E. We affirm the convictions and the order denying the motion for a new trial, and we decline to exercise our power to reduce the verdict.

Based on the evidence at trial, the jury could have found that the defendant and Jamaal Haith killed Manuel Andrade (victim) in his Stoughton apartment on January 22, 2002. Haith, who was the defendant's former boy friend and the father of her two children, was convicted of murder in the first degree in a separate trial, and his conviction was affirmed by this court. See Commonwealth v. Haith, 452 Mass. 409, 894 N.E.2d 1122 (2008). It is unnecessary to recount the evidence concerning the murder for resolution of the defendant's claims. We recount relevant facts in the course of this opinion.

As indicated, the defendant's arguments (other than her request for relief pursuant to G.L. c. 278, § 33E) pertain to ineffective assistance of counsel. Because the defendant has been convicted of murder in the first degree, we consider her contention of ineffectiveness of counsel to determine whether there exists a substantial likelihood of a miscarriage of justice, pursuant to G.L. c. 278, § 33E, which is more favorable to a defendant than the constitutional standard for determining whether there has been ineffective assistance. Commonwealth v. Wright, 411 Mass. 678 681-682, 584 N.E.2d 621 (1992). Thus, we consider whether there was error during the course of the trial, and, if so, whether the error was "likely to have influenced the jury's conclusion." Id. at 682, 584 N.E.2d 621. Under this more favorable standard of review, we consider a defendant's claim even if the action by trial counsel does not "constitute conduct falling `measurably below' that of an `ordinary fallible lawyer.'" Commonwealth v. MacKenzie, 413 Mass. 498, 517, 597 N.E.2d 1037 (1992), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). A strategic decision by an attorney, however, amounts to ineffective assistance "only if it was manifestly unreasonable when made." Commonwealth v. Coonan, 428 Mass. 823, 827, 705 N.E.2d 599 (1999), quoting Commonwealth v. Martin, 427 Mass. 816, 822, 696 N.E.2d 904 (1998).

1. Search of basement. The defendant's mother, Henrietta Williams (Henrietta),³ owned a multifamily residential rental property in Medford but did not live there. At one point after the murder, the police learned that the defendant was staying in the basement of that building. After obtaining Henrietta's consent to search the basement area, the police did so and seized papers belonging to the defendant.

Prior to trial, defense counsel filed a motion to suppress all physical evidence seized from the basement area of the Medford property.⁴ The hearing on the motion focused on whether the search was valid because consent to the search of the basement had been given by Henrietta. The motion to suppress was denied.⁵ However, the precise question which the defendant now raises, whether consent to the search of the basement extended to a search of the defendant's personal papers, was not separately argued. The defendant contends, both in her motion for a new trial and in this appeal, that the lack of an argument at the hearing on the motion to suppress addressed specifically to the seizure of her personal papers constituted ineffective assistance of counsel. Without determining whether the absence of such an argument was meaningful otherwise, we conclude that the claim of ineffective assistance has no merit because, on this record, the defendant lacked a reasonable expectation of privacy in the basement and consequently had no right to suppression of the seized evidence in any event.

The facts concerning the search of the basement appear in the decision of the trial judge on the motion for a new trial and these facts are essentially undisputed.⁶ After the murder of the victim on January 22, 2002, the police informed Henrietta that they had obtained warrants for the arrest of the defendant and Haith. Approximately one month later, on February 20, 2002, Henrietta notified the police that "someone might be staying in the basement" of a building she owned at 80 Morton Avenue in Medford. When asked if the person staying there was the defendant, Henrietta stated that she "never saw [the defendant] at the building." Henrietta gave the police permission, both orally and in writing, to enter and search the basement. The signed form authorized the police "to conduct a complete search of the premises and property, including all buildings and vehicles, both inside and outside of the property located at 80 Morton Ave., Medford," and to "take from my premises and property any letters, papers, materials or any other property or things which they desire as evidence for criminal prosecution in the case or cases under investigation."

After obtaining this consent form, the police went to 80 Morton Avenue in Medford the same day. Pursuant to instructions from Henrietta, they entered the basement through an unlocked rear door. The area was unfinished, made of concrete, and "dark like a cellar," with "storage throughout." There was a mattress and some clothing in the back. In that location the police found a letter addressed to the district attorney of Norfolk County and signed by the defendant, credit cards belonging to the victim, a diary, and clothing. The police seized these items.

In the decision on the motion for a new trial, the trial judge noted that additional relevant information was available to defense counsel in police reports. (This information is relevant to establishing the length of time the defendant had been living in the basement.) One such report indicated that on February 20, 2002, one of the defendant's sisters called Detective Robert Welch of the Stoughton police department and asked him to come to her mother's home in Brockton. At the Brockton home, the defendant's sisters reported to the police that their mother owned a multifamily building in Medford, that they had checked it in early February, and that "everything was fine" at that time. When they visited the building on February 19, 2002, however, they saw clothing in the common cellar, including items they recognized as the defendant's. They said they had not seen the defendant and did not know how long she had been there.

At trial, the Commonwealth introduced in evidence the following items that were discovered in the search of the basement: the victim's credit card, the letter addressed to the district attorney of Norfolk County, bus ticket receipts in the name of the victim for travel on January 29 and February 1, 2002 (by which time he had been dead for some time), and a note with a Fayetteville, North Carolina, telephone number on it. (Haith had been found and arrested in Fayetteville, North Carolina.) As the trial judge stated, the letter addressed to the Norfolk County district attorney "generally pointed to a person other than the defendant and Haith as the murderer." The letter was significant because it was inconsistent both with a statement the defendant had given to the police and with her trial testimony. The judge concluded that the defendant had no reasonable expectation of privacy in the area searched.

To prevail on her claim of ineffective assistance of counsel in regard to the motion to suppress, the defendant must demonstrate both that the argument regarding consent would have been successful and that counsel's failure to make that argument, and thus obtain suppression of the evidence resulting from the search, created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992). The defendant has not met either prong of the test.

The defendant challenged the search and seizure as one violative of her rights under the Fourth and Fourteenth Amendments to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.⁷ Under art. 14, we determine initially whether the defendant has standing to contest the search and then whether she had an expectation of privacy in the area searched. Although the two concepts are interrelated, we consider them separately.⁸ See Commonwealth v. Morrison, 429 Mass. 511, 513-514, 710 N.E.2d 584 (1999). A defendant has standing if she has either a possessory interest in the place searched or in the property seized or if she was present when the search occurred. See Commonwealth v. Genest, 371 Mass. 834, 836, 359 N.E.2d 950 (1977). Here, the defendant has a possessory interest in her papers sufficient at least to grant her standing. See Commonwealth v. Deeran, 364 Mass. 193, 195, 302 N.E.2d 912 (1973).

To decide whether the defendant's constitutional rights...