Commonwealth v. Hampton
| Decision Date | 02 September 2015 |
| Docket Number | No. 13–P–1938.,13–P–1938. |
| Citation | 36 N.E.3d 586,88 Mass.App.Ct. 162 |
| Parties | COMMONWEALTH v. TERRANCE HAMPTON. |
| Court | Appeals Court of Massachusetts |
Stephanie A. Hoeplinger, West Roxbury, for the defendant.
Cynthia Cullen Payne, Assistant District Attorney, for the Commonwealth.
Present: TRAINOR, RUBIN, & SULLIVAN, JJ.
Following an order of remand,1 a judge of the Superior Court held an evidentiary hearing on the defendant's motion for a new trial on the ground of ineffective assistance of trial counsel. The defendant had been convicted of assaulting a correctional officer. See G.L. c. 127, § 38B. His defense at trial was that the correctional officer used excessive force and was the first aggressor. At issue in the motion and on appeal is whether counsel was ineffective in failing to interview a fellow inmate who claimed that he had observed a portion of the altercation, and that the defendant had not been the first aggressor. The motion judge, who was also the trial judge, denied the motion on the basis that counsel made a reasonable strategic decision, and that the witness was not credible. We reverse.
1. Background. a. Pretrial investigation by defense counsel. The defendant was charged with assault and battery on a correctional officer at the Hampden County house of correction in Ludlow. Before the trial, the defendant told trial counsel that a fellow inmate, Deven Gallop, witnessed the events in question. Trial counsel filed a pretrial discovery motion to name any persons present during the incident. The Commonwealth provided a list with the names of the correctional officers, but it did not include Gallop's name. Trial counsel accepted the Commonwealth's representation. Neither she nor her investigator interviewed Gallop or visited the intake unit where the incident took place.
Before jury empanelment, the defendant moved to discharge trial counsel, asserting that she failed to investigate the potential eye witness and was thus ill-prepared to present his defense. The motion was denied and the case proceeded to trial.
b. The trial. At trial, the Commonwealth's theory was that the defendant engaged in an unprovoked attack. The defendant claimed that the correctional officer used excessive force to which he responded in self-defense.
Three correctional officers testified regarding the incident. The defendant was located within an intake unit where inmates waiting to go to court were held. Inmates were allowed to change from prison clothes to civilian clothes before going to court, but were required to submit to a strip search in a “strip room.” The incident took place in the strip room as the defendant, whose court date had been cancelled, was preparing to go back to his cell. Officer Barcomb testified that he told the defendant to put some personal papers down. Barcomb then picked up the papers. The defendant told him not to read them, grabbed the papers out of his hands, and punched Barcomb repeatedly. Two correctional officers testified that the defendant punched Barcomb with multiple blows. One testified that the defendant yelled, “Do you know who the fuck I am?”
The defendant testified that he went into the strip room and began to disrobe. When Barcomb picked up the papers, Gallop asked the officer four or five times over two to three minutes not to read the papers. When the officer did not stop reading the papers, the defendant snatched the paperwork from Barcomb's hand. The officer told the defendant to turn and put his hands on the wall and he complied. Barcomb then pushed him three times
from the rear; his shins were pressed against a bench. After the third push, the defendant turned around. Barcomb's arm was raised and the defendant then swung his fist at the officer. Barcomb blocked the blow, they both fell to the ground, and Barcomb hit him in the eye.
After closing arguments in which the Commonwealth stressed the credibility of the three officers' testimony and the defendant's lack of credibility, the defendant was convicted of assault and battery upon a correctional officer.
c. Motion for a new trial. The defendant filed a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The motion contained an affidavit from Gallop stating that he had seen the beginning of the altercation, that he saw the officers push the defendant three or four times, that he may have seen an officer take a swing at the defendant, and that he would have testified at trial upon request. The motion was denied on the papers. The denial of the defendant's motion for a new trial was subsequently vacated and the matter was remanded for an evidentiary hearing on the issue whether counsel's decision not to pursue Deven Gallop as a defense witness constituted ineffective assistance. Commonwealth v. Hampton, 82 Mass.App.Ct. 1111, 972 N.E.2d 1063 (2012).
Gallop's testimony at the hearing on the motion for a new trial may be summarized as follows. Gallop was Hampton's codefendant and was present in the intake area with the defendant that day. Gallop was in a holding cell approximately five feet across from the strip room. The door to the strip room was ajar for a few seconds. He witnessed the confrontation between the defendant and the correctional officer near the entrance of the intake room through a window in the steel door of his holding cell. When the intake room door was open, Gallop saw an officer push the defendant three to four times and may have seen the officer swing at him as well. He also heard someone say, “Why are you hitting me?” and another person say, “Stop resisting.”
Gallop's credibility was in dispute. He was held in a cell that had a steel door with windows. Gallop described the window as portrait shaped, over two feet wide and three feet high. The Commonwealth introduced photographs of the cell door showing that there were two vertical windows four inches wide and thirty inches long. The Commonwealth also offered the testimony of one of the correctional officers that the windows had always been in that configuration. When shown the pictures, Gallop did not change his testimony.
Gallop also stated that the incident occurred at the front of the strip room, just inside the door. He conceded that if the incident had occurred near the back of the room, as the defendant had testified at trial, he would not have been able to see what happened. On cross-examination, Gallop stated that the defendant was not pushed up against the wall, was not pushed up against a bench, and that there was no bench in the intake room. This testimony was at odds with that of the defendant and with that of the correctional officers, who testified at trial and at the evidentiary hearing that the incident took place while the defendant was standing against the bench with his hands on the wall.
Lieutenant Carter, a correctional officer, testified that in his nineteen years at the correctional facility, the bench in the strip room was located against the back wall, near the shower area and the window to the property room. Upon hearing loud noises from within the strip room, Carter knocked on the door, and a sergeant, who was in the room, opened the door which then closed behind him. Carter saw the defendant snatch papers out of Barcomb's hands and heard the officer tell the defendant to place his hands on the wall. He saw the defendant put one hand on the wall and then start swinging “closed fist punches” at Barcomb's head. Carter maintained that the door was not open during the incident.
As noted previously, defense counsel testified that she relied on the Commonwealth's representation that no one else saw the incident. She had never been to the Ludlow house of correction, was unfamiliar with the lay out of the strip cells, and declined to interview Gallop even though the defendant had given her his name. When asked if there was a strategic reason for her decision not to interview Gallop, she stated that she “relied on the information provided by the Commonwealth,” because the incident occurred in the confines of a cell in an enclosed area.
The motion judge concluded that trial counsel was not ineffective because she made a reasonable strategic decision not to interview or call Gallop as a witness. The judge also found that trial counsel's investigation revealed that the incident occurred at the back of the intake room, and therefore, Gallop did not witness the events because it would have been impossible to do so, and it would have been poor strategy to call a witness whose testimony conflicted with that of the defendant. She further found that Gallop's testimony at the evidentiary hearing was not credible for three reasons: Gallop was (1) biased because he was a codefendant, (2) “at times self-contradictory on matters of importance,”
and (3) “inconsistent with significant credible evidence.” Consequently, she denied the defendant's motion for a new trial.
2. Discussion. When assessing a claim of ineffective assistance of counsel, we examine the question under our traditional two-prong test stated in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974) : 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. Egardo, 426 Mass. 48, 52, 686 N.E.2d 432 (1997). See Commonwealth v. Alcide, 472 Mass. 150, 157, 33 N.E.3d 424 (2015). The defendant asserts that the judge erred in concluding that counsel made a reasonable strategic decision not to call Gallop on the basis that trial counsel did not conduct any investigation of Gallop's testimony, and Gallop's credibility was a matter for the jury. We agree.
a. Duty to investigate. Tactical decision-making by counsel will be...
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