Commonwealth v. Hardy

• Decision Date: 15 March 2013
• Docket Number: SJC–10874.
• Citation: 464 Mass. 660,984 N.E.2d 727
• Parties: COMMONWEALTH v. Jeffrey HARDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 660

984 N.E.2d 727

COMMONWEALTH

v.Jeffrey HARDY.

SJC–10874.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Nov. 8, 2012.

Submitted March 15, 2013.

Robert L. Sheketoff, Boston, for the defendant.

Jessica Langsam, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

In 1995, the defendant was convicted by a Superior Court jury of murder in the first degree. In his direct appeal to this court, we affirmed the conviction, denied relief under G.L. c. 278, § 33E, and affirmed the denial of the defendant's motion for a new trial. See Commonwealth v. Hardy, 431 Mass. 387, 727 N.E.2d 836 (2000)( Hardy ). In 2008, the defendant filed a second motion for a new trial, alleging his counsel was ineffective for failing to raise certain alleged errors at trial and on direct appeal.¹ A judge of the Superior Court (who was not the trial judge) denied the motion without an evidentiary hearing. The defendant sought leave to appeal from the denial of his motion by a petition to a single justice of this court pursuant to the “gatekeeper” provision of G.L. c. 278, § 33E, and the single justice allowed the petition. We affirm the denial of the defendant's second motion for a new trial.

Background. The body of Thomas Moran was discovered in a Medford park at approximately 5:30 a.m. on April 28, 1994. Moran had suffered seventy-nine stab wounds and a gunshot wound to the face. A grand jury returned an indictment charging the defendant with Moran's murder, and after a trial lasting over three weeks, the defendant was convicted of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. As stated, we affirmed the defendant's conviction, affirmed the denial of the defendant's motion for a new trial, and denied relief under G.L. c. 278, § 33E.² See Hardy, supra at 400, 727 N.E.2d 836.

In this appeal from the denial of his second motion for a new trial, the defendant now claims that his counsel was deficient at trial and on direct appeal by failing to raise the following alleged constitutional errors of the trial judge: (1) twice closing the court room during trial; (2) precluding the defendant from cross-examining a witness about any inducement the Commonwealth had provided to the witness in order to obtain his testimony; (3) denying the defendant's request to give a Bowden instruction, see Commonwealth v. Bowden, 379 Mass. 472, 485–486, 399 N.E.2d 482 (1980); and (4) permitting the jury to infer the defendant's consciousness of guilt from false statements he had made to police concerning his whereabouts on the night of the killing. Additionally, the defendant asserts that his counsel failed to raise a claim at trial and on direct appeal that the prosecutor had improperly vouched for the credibility of a witness.

Discussion. 1. Standard of review. The defendant comes before us on the denial of his second motion for a new trial, after plenary review of his conviction and of the denial of his first motion for a new trial by this court, pursuant to G.L. c. 278, § 33E. In such circumstances, we review an unpreserved claim of error by considering whether the alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Smith, 460 Mass. 318, 320–321, 951 N.E.2d 322 (2011).³

When a defendant attributes the failure to preserve a claim to the ineffective assistance of counsel, however, “we use the ineffectiveness of counsel standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), because, ‘whether we view the unpreserved claim of error ... [by] utilizing the substantial risk of a miscarriage of justice standard, or ... by focusing on counsel's ineffectiveness in failing to object to the error, our approach is essentially the same, and ... the result would be the same.’ ” Commonwealth v. Lavoie, 464 Mass. 83, 89, 981 N.E.2d 192 (2013), quoting Commonwealth v. Azar, 435 Mass. 675, 686–687, 760 N.E.2d 1224 (2002).⁴ “Counsel is ineffective where his conduct falls ‘below that which might be expected from an ordinary fallible lawyer’ and prejudices the defendant by depriving him ‘of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Lavoie, supra at 89–90, 981 N.E.2d 192, quoting Commonwealth v. Saferian, supra.

2. Public trial. We address first the defendant's claim that his trial counsel was ineffective for failing to object to two court room closures—a complete closure of the court room during jury selection and a partial closure of the court room during the reading of the verdict—that he asserts violated his constitutional right to a public trial under the Sixth Amendment to the United States Constitution.⁵ See, e.g., Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106, 921 N.E.2d 906 (2010).

We conclude that, on the particular facts of this case, counsel's failures to object to the closures were objectively reasonable decisions that did not fall “below that which might be expected from an ordinary fallible lawyer.” See Commonwealth v. Saferian, supra. We have recognized that defense counsel may have good reason to refrain from objecting to the exclusion of the public from a defendant's trial. See, e.g., Commonwealth v. Cohen (No. 1), supra at 118 n. 35, 921 N.E.2d 906. Here, undisputed facts drawn from the trial judge's 1998 decision denying the defendant's first motion for a new trial (1998 decision) and the trial transcript disclose that, throughout the trial proceedings, the judge and the parties were aware of tensions between those who supported the defendant and those who supported the victim.

As stated in the judge's 1998 decision, “this case was fraught with events and circumstances many of which were extraneous to the trial itself but impacted upon same in the form of control and tension that evolved from the conduct of others.” According to the judge, the “family and friends of the defendant and the victim divided into actively antagonistic factions; a situation that continued up to and throughout the trial[,] requiring court action on more than one occasion” to maintain control of the court room. Indeed, just before trial began, defense counsel informed the judge that she had received death threats.

Based on these circumstances, the judge conducted a bench conference before jury selection began during which the judge informed the parties that the court room would be cleared of all spectators, both supporters of the defendant and of the victim, during jury selection. In response, defense counsel repeated several times, “I understand, Your Honor.” Counsel also informed the judge that she had told the defendant's supporters to go home until the jury had been selected.

The specter of potential violence continued to loom over the trial. In the 1998 decision, the judge noted that a defense witness had been shot at near the court house after having testified. On a view of the park where the victim's body was found, spectators shouted at the jury, “[The defendant] is a murderer.” Hardy, supra at 391, 727 N.E.2d 836. And, during a recess in the proceedings toward the end of trial, the defendant's father was arrested after attacking the victim's mother in the corridor just outside the court room. These events prompted the judge to order that the entire floor of the court house on which the court room was located be closed, and that only eight spectators supporting the victim, and eight spectators supporting the defendant, would be allowed in the court room during the reading of the verdict.⁶ Neither defense counsel nor the prosecutor objected. ⁷

Defense counsel now avers that she did not appreciate the full scope of the public trial right at the times the court room was closed. That assertion distinguishes this case from Commonwealth v. Lavoie, supra at 88–89, 981 N.E.2d 192, in which we held that an attorney may make a substantive waiver of a defendant's right to a public trial by failing to object to a court room closure, but only where the failure to object “is a tactical decision as part of counsel's trial strategy.” In that case, the defendant's attorney knowingly refrained from objecting to a court room closure in order to benefit his client. See id. at 85, 981 N.E.2d 192. By contrast, trial counsel in this case asserts that she “was not fully aware of” the public trial right, and therefore we cannot interpret her silence as constituting a knowing waiver of the defendant's constitutional right to a public trial.⁸

Nonetheless, on a claim of ineffective assistance of counsel, our review of counsel's performance is objective. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974) (counsel's performance is compared to “that which might be expected from an ordinary fallible lawyer”). See also Ouber v. Guarino, 293 F.3d 19, 27–28 (1st Cir.2002) (on ineffective assistance of counsel claim, court considers “potential justifications for the attorney's actions, given what he knew or should have known at each relevant moment in time”). In light of the circumstances surrounding the trial, which were known to defense counsel, it was not objectively unreasonable for her to refrain from objecting to the closures in order to protect her client's interest in a fair trial, one in which the jury were not exposed to distracting events. See Commonwealth v. Horton, 434 Mass. 823, 833, 753 N.E.2d 119 (2001) (no ineffective assistance of counsel where “the less public setting for the voir dire in all likelihood helped rather than harmed the defendant”). Compare Owens v. United States, 517 F.Supp.2d 570, 576 (D.Mass.2007) (ineffective assistance where “[r]easonable counsel with the requisite knowledge of the law would have objected—not just on learning that a particular person had been barred from the court room, but at the trial court's statement that the court room would be cleared”). We therefore conclude...