Commonwealth v. Britto

• Decision Date: 03 October 2000
• Parties: (Mass. 2001) COMMONWEALTH vs. JEFFREY BRITTO. 7930
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

744 N.E.2d 1089 (Mass. 2001)

COMMONWEALTH vs. JEFFREY BRITTO.

7930

Supreme Court of Massachusetts

October 3, 2000.

March 30, 2001.

County: Plymouth.

Present: Marshall, C.J., Ireland, Spina, Cowin, & Sosman, JJ.

Summary: Practice, Criminal, Assistance of counsel, New trial, Jury and jurors, Duplicative convictions, Capital case. Constitutional Law, Assistance of counsel. Attorney at Law, Attorney-client relationship. Evidence, Hearsay, Videotape. Identification. Jury and Jurors. Robbery.

Indictments found and returned in the Superior Court Department, one on April 8, 1996, and two on June 3, 1996, respectively.

The cases were tried before Charles J. Hely, J., and a motion for a new trial was considered by him.

Charles K. Stephenson for the defendant.

Mary E. Mullaney, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Catherine K. Byrne, Committee for Public Counsel Services & John F. Palmer, for Committee for Public Counsel Services & another.

Michael Keating, Mitchell J. Matorin, Elizabeth Heinrich & Marc G. Perlin for National Center for Citizens Participation in the Administration of Justice.

Thomas F. Reilly, Attorney General, & Pamela L. Hunt, Assistant Attorney General, for the Attorney General.

SPINA, J.

The defendant, Jeffrey Britto, was convicted of murder in the first degree on a theory of felony-murder, armed robbery while masked, and unlawful possession of a firearm. Represented by new counsel on appeal he claims error in (1) the judge's refusal to appoint new counsel before trial; (2) the denial of his motion for a new trial based on ineffective assistance of counsel; (3) the admission of statements made by an identification witness after a lineup procedure had concluded; and (4) the judge's decision to permit jurors, without prior consultation of the parties, to submit questions to witnesses at trial. Additionally, he asks that his conviction of armed robbery while masked, the underlying felony in the murder conviction, be vacated as duplicative. We affirm the convictions for murder in the first degree and unlawful possession of a firearm, and vacate the conviction of armed robbery while masked. We decline to exercise our power under G. L. c. 278, § 33E.¹

We summarize the facts the jury could have found, reserving other details for discussion of the issues. The victim, Rose Marie Delsie, lived in a first-floor apartment in Brockton. Beginning on February 21, 1996, and continuing through the morning of February 22, Delsie and her friend, Cynthia Holiday, binged on cocaine and heroin in Delsie's apartment. Holiday left periodically to replenish their supply of drugs. At one point, on February 22, she left and returned with Robert Zine, who joined the women in smoking crack for the rest of the morning. Around noon that day, Holiday paged a regular drug contact, codefendant Howard Allen, and asked him to bring more drugs to Delsie's apartment.

Shortly after Allen arrived, the defendant entered the apartment while masked and demanded cash and other valuables at gunpoint. He said he had been watching the place for the past couple of weeks and knew there were "goods" there. Delsie took a gun from her night stand and shot him. The defendant returned fire. One projectile perforated Delsie's lung and several major blood vessels. She died as a result.

At trial, identity was the principal issue. Zine testified that, as he and Holiday approached Delsie's house, he saw a black man resembling the defendant in skin tone and height leaning against the house, but he could not make a positive identification. Zine had known the defendant for several years. Although the defendant's head and face were covered during the robbery, Zine recognized him by his eyes.

Robert Senter, Delsie's upstairs neighbor, heard gunshots at approximately noon on February 22. He looked out his front window and saw a black man wearing a hooded sweatshirt emerge from the house and look back into Delsie's apartment. The man was holding a gun similar to one Delsie had shown Senter in her apartment. Senter watched him approach a red van, later identified as Allen's, look inside, as if checking for keys, and then glance toward the building. Senter had a clear view of the man's face. At a lineup several months later, Senter said the defendant looked like a man that could be the gunman. The police officer who drove Senter home after the lineup asked if he was positive about the identification. Senter stated he was sure because he knew what it was "like to be locked up" and did not "want to identify someone who didn't do it." He identified the defendant at trial. The lineup procedure had been preserved on videotape and shown to the jury.

On the evening of February 22, the defendant and Allen went to an apartment where the defendant was staying with Willie Lee Harris and Harris's girl friend.² It appeared to Harris, who was in the apartment, that something was wrong with the defendant. The defendant went directly to his room, accompanied by Allen. Allen left, returned, then left again. Harris looked in the defendant's room and saw him lying on his side, apparently hurt. There were medical supplies on the table by the bed. The next day the defendant emerged from his room walking with difficulty. Harris asked him what happened. The defendant replied that he had been shot during an argument. A pathologist retained by the Commonwealth examined the defendant on April 1, 1996, and saw a hip wound consistent with a grazing gunshot that was approximately six weeks old.

Approximately one month after the shooting the Brockton police entered the Harris apartment with a search warrant in an unrelated matter. The defendant was present, and he was holding the victim's gun. When he saw the police, he dropped the gun and said he was just visiting, adding that the gun was there when he arrived. Harris had seen the defendant with the gun several days after the shooting.

1. Motions for appointment of new counsel. Six months before trial, beginning in November, 1997, the defendant filed the first of four pro se motions he would file seeking to discharge counsel and have new counsel appointed. Each motion alleged an irreconcilable breakdown in communication with counsel. The first was denied on December 17, 1997. He filed a second motion on January 5, 1998. Counsel moved to withdraw on January 7, 1998. Another judge, who was to be the trial judge, denied those motions on January 7, 1998.³ In early March, counsel filed a motion for reconsideration of his motion to withdraw, citing continuing conflict with the defendant. That motion was denied by the trial judge. The defendant's third and fourth motions were filed on April 9 and April 13, 1998, respectively. Those motions were heard and denied on the first day of trial, May 4, 1998. The defendant argues that the denial of each of these motions was an abuse of discretion and a violation of his right to counsel under the Sixth Amendment to the United States Constitution.

The Sixth Amendment guarantees the right to effective assistance of counsel, but it "does not invariably require a 'meaningful attorney-client relationship.'" Commonwealth v. Tuitt, 393 Mass. 801, 806 (1985), citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983). It does not guarantee the right to any particular court-appointed counsel. See Commonwealth v. Moran, 388 Mass. 655, 659 (1983). The defendant has the burden of showing good cause to remove appointed counsel. See Commonwealth v. Chavis, 415 Mass. 703, 712 (1993). Good cause includes, but is not limited to, "a conflict of interest, incompetence of counsel, or an irreconcilable breakdown in communication." Id. "[T]he decision to honor a defendant's request for change of appointed counsel is a matter left to the sound discretion of the trial judge, but after he has given the defendant the opportunity to articulate his reasons." Commonwealth v. Moran, supra at 659. There is no bright-line test. "[T]he judge must blend 'an appreciation of the inevitable difficulties of trial administration with a concern for constitutional protections.'" Commonwealth v. Dunne, 394 Mass. 10, 14 (1985), quoting United States v. Poulack, 556 F.2d 83, 86 (1st Cir.), cert. denied, 434 U.S. 986 (1977).

This case is somewhat unusual in that the defendant requested new counsel well in advance of trial, so it is unburdened by the most common problem accompanying this scenario, namely, the need for a continuance of the trial if the motion is allowed. See, e.g., Commonwealth v. Diatchenko, 387 Mass. 718, 727-728 (1982). The assertions in these motions and affidavits, however, do not indicate any likelihood that the defendant's right to the effective assistance of counsel was in jeopardy.

There was no allegation that counsel was not prepared, and counsel never said he was unprepared. See Commonwealth v. O'Brien, 380 Mass. 719, 723 (1980); Commonwealth v. Cavanaugh, 371 Mass. 46, 52-54 & n.3 (1976) (reversal required where counsel said he was unprepared). The trial judge noted that counsel was one of the most effective criminal defense lawyers in the area. Counsel's mere failure to meet all the defendant's demands, many of which were unreasonable or unrealistic, does not equate with an irreconcilable breakdown of communication. If it did, the administration of trials could be brought to a grinding halt with relative ease, just for the asking.

The ultimate question is whether the defendant likely would be denied the effective assistance of counsel if counsel is not removed. See Commonwealth v. Miskel, 364 Mass. 783, 790 (1974). We are satisfied that, based on what was presented at the time the motions were made, the defendant failed to make the requisite showing. There was no abuse of discretion in the denial of his or counsel's motions. Because the defendant also raises the issue of an irreconcilable breakdown of communication in his motion for a new trial...