Com. v. Wright

• Decision Date: 15 January 1992
• Citation: 584 N.E.2d 621,411 Mass. 678
• Parties: COMMONWEALTH v. Edward G. WRIGHT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 621

584 N.E.2d 621

411 Mass. 678

COMMONWEALTH v. Edward G. WRIGHT.

Supreme Judicial Court of Massachusetts Hampden.

Argued Nov. 4, 1991.

Decided Jan. 15, 1992.

Robert H. Astor, Springfield, and Esther J. Horwich, Boston, for defendant.

Elizabeth Dunphy Farris, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

The defendant appeals from his conviction of murder in the first degree and from the denial of two motions for a new trial. We affirm the conviction and the orders denying the defendant's motions for a new trial.

In the afternoon of May 14, 1984, officers of the Springfield police department found the victim's body with more than sixty stab wounds in her second-floor apartment at 306 Dwight Street Extension. There was evidence that she had died between 12:15 A.M. and 6:15 A.M. that day. A neighbor heard a woman screaming for about fifteen minutes shortly before 4 A.M. He then heard a motor vehicle start up and leave the area.

There was evidence from which the jury could have found the following. About 12:45 A.M. on May 14, the defendant and the victim left a motor vehicle that the defendant had borrowed from a friend and entered the victim's apartment. At daybreak, the defendant returned to his friend's apartment. The friend thereupon drove the defendant to Delaware, leaving about 8 A.M. Shortly after the victim's body was discovered, the defendant called one Arthur Turner. Turner lived with his mother, who previously had been the woman friend of the defendant. The defendant told Turner that he had killed someone and gave the victim's address. He described the victim as a "white bitch" and said he had stabbed her with a knife that had a fourteen-inch blade because she had fired a gun at him. On the next day, Turner read about the victim's murder, and on May 16, he gave a statement to the police.

Evidence of blood in the victim's apartment and in the borrowed motor vehicle tended to prove the defendant's guilt. A bloody imprint made by a shoe on the tiled kitchen floor of the victim's apartment could have been made by a sneaker that the defendant was wearing when he was interviewed by Springfield police after Wilmington, Delaware, police had arrested him on May 16 at his sister's home. There were traces of occult blood, possibly of fairly recent origin, on the steering wheel, headlight switch, inside door handle, and other parts of the motor vehicle that the defendant had borrowed on the night of the murder.

The defendant testified that he had met the victim at a nightclub and had later driven her to her apartment, with several intermittent stops. They talked for about an hour, and, when he left about 1:30 A.M., she let him out of her apartment. The defendant denied calling Arthur Turner from Delaware on May 14.

We have three briefs on behalf of the defendant. One, which was filed by counsel appointed after the defendant's conviction, addresses the defendant's direct appeal and, in doing so, argues some issues as to which the defendant's appellate rights were not preserved in the traditional manner. This first brief also challenges the denial of the defendant's first motion for a new trial. That motion claimed a new trial because of newly discovered evidence, because the verdict was against the weight of the evidence, and because of police misconduct. The trial judge, who heard evidence on the motion, concluded that the alleged newly discovered evidence was not credible or was inconsequential and of dubious probative value. He also concluded that he need not discuss the other reasons advanced in support of the motion. We shall start with a consideration of the arguments presented in this first brief and, in doing so, shall dispose of some arguments advanced in the other two briefs.

We shall then consider arguments that appear in the brief which challenges the denial of the defendant's second motion for a new trial. That motion claimed that the defendant's trial counsel was ineffective in a constitutional sense and that the defendant's rights were denied because of his absence from a voir dire hearing concerning what the defendant calls juror misconduct. The trial judge concluded that the claimed deficiencies of counsel were "snippets of detail out of a long and difficult case complicated to some extent by an antagonistic attitude on the part of defendant." He characterized defense counsel as well prepared, forceful, competent, and attentive to his client. On the question of the defendant's absence from the voir dire hearing, the judge ruled that counsel had assented to the defendant's absence.

Finally, we shall consider those remaining issues, argued in the defendant's pro se brief, that we have not resolved in our prior discussion.

In considering issues argued on direct appeal as to which the defendant's appellate rights were not preserved by an objection or in some other manner, we apply the standard of G.L. c. 278, § 33E (1990 ed.). We must decide whether there is a substantial likelihood that a miscarriage of justice has occurred. Commonwealth v. Garcia, 379 Mass. 422, 439, 399 N.E.2d 460 (1980). We have suggested that a defendant in a so-called "capital case" under § 33E has a lower barrier to clear with respect to an error at trial not objected to than does a similarly situated defendant in an appeal of a noncapital case. See Commonwealth v. Lennon, 399 Mass. 443, 448-449 n. 6, 504 N.E.2d 1051 (1987).

We have not previously discussed the relationship between the standard of review we apply under § 33E and the standard for determining the denial of a defendant's constitutional right to effective counsel. We have said that a defendant is entitled to appellate relief if trial counsel failed to meet a minimum standard of performance (Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 [1974] ), and if the defendant has also shown that, but for counsel's error, something material might have been accomplished in the defendant's favor (Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 [1977] ). See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), describing the standard for testing the ineffectiveness of counsel under the Constitution of the United States (which we have said is a standard no more favorable to a defendant than that under the State Constitution. Commonwealth v. Fuller, 394 Mass. 251, 256 n. 3, 475 N.E.2d 381 [1985] ).

We conclude that, if a defendant convicted of murder in the first degree is unable to show on his direct appeal that, as to an unpreserved claim of error, there is a substantial likelihood of a miscarriage of justice, he would not prevail by asserting as to the same issue the ineffectiveness of his counsel. In other words, the statutory standard of § 33E is more favorable to a defendant than is the constitutional standard for determining the ineffectiveness of counsel. In deciding this case, therefore, we need not focus on the adequacy of trial counsel's performance. In reviewing each claim of the ineffectiveness of trial counsel, therefore, we shall consider whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion. ¹

1. We consider here issues argued on the defendant's appeal from his conviction and from the denial of his first motion for a new trial.

The following contentions deserve no more than limited discussion:

(a) The allowance of the Commonwealth's motion to amend the date of the murder alleged in the indictment from May 15, 1984, to May 14, 1984, properly was not objected to, did not prejudice the defense of the case (the substance of which was available from the grand jury minutes and otherwise), and involved a nonessential element of the indictment (G.L. c. 277, § 20 [1990 ed.] ).

(b) The testimony of the chemist concerning the presence of traces of blood on the victim's kitchen floor and in the motor vehicle that the defendant operated on the night of the murder was properly admitted. It was relevant to the question of the defendant's guilt. See Commonwealth v. Yesilciman, 406 Mass. 736, 744-745, 550 N.E.2d 378 (1990). The fact that the expert could not tell whether the blood was human blood affected the weight of the evidence but not its admissibility. Nor does the fact that no traces of blood were found on the defendant's sneakers make inadmissible the testimony that a sneaker like the defendant's could have made the bloody imprint on the kitchen floor. There is nothing in the record to show that the defendant would have benefited measurably if his counsel had presented an expert to testify concerning the traces of blood.

(c) The judge did not abuse his discretion in denying the defendant's first motion for a new trial. The judge's conclusion that the asserted newly discovered evidence lacked probative value is based on his assessment of the credibility of witnesses and is unassailable on this record. The judge noted the two other bases for the new trial motion and properly concluded that they did not warrant discussion. As to the first, the credibility of witnesses' testimony about any incriminating telephone call that the defendant may have made was for the jury. As to the second, the claim of police misconduct is not supported on the record. To prove police misconduct it is not enough that the defendant challenges as untrue certain evidence that the police had gathered.

(d) The judge's ruling that the defendant had been given Miranda warnings and had elected to talk to the police in Delaware is warranted on the record. The claim that inadequate Miranda warnings were given is frivolous. The evidence raised no question as to whether whatever statements the defendant made to the police in Delaware were made knowingly and voluntarily. Counsel had no reason to...