Commonwealth v. Patterson

• Decision Date: 06 December 2000
• Citation: 739 NE 2d 682,432 Mass. 767
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. TERRY L. PATTERSON.

432 Mass. 767

739 NE 2d 682

COMMONWEALTH v.TERRY L. PATTERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

September 8, 2000.

December 6, 2000.

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

John H. Cunha, Jr.(Charles Allan Hope with him) for the defendant.

Paul B. Linn,Assistant District Attorney, for the Commonwealth.

SOSMAN, J.

The defendant, Terry L. Patterson, was found guilty of murder in the first degree, armed robbery, and possession of a dangerous weapon.The defendant filed a motion for a new trial based on alleged extraneous influences on the jurors, which was denied.The defendant then filed another motion for a new trial, based on trial counsel's alleged conflict of interest and on alleged newly discovered evidence.That motion was also denied.

The defendant now appeals from his conviction and the denial of his motions for a new trial.We hold that the evidence was sufficient to support the convictions.However, because we agree with the defendant's contention that his trial counsel's conflict of interest deprived him of the effective assistance of counsel, we set aside the verdicts and remand the matter for a new trial.¹

1.Background.We summarize the evidence at trial, viewed in the light most favorable to the Commonwealth.With respect to the claim that defense counsel had a conflict of interest, we supplement the trial evidence with the evidence submitted in support of the defendant's motion for a new trial.In the early morning hours of September 26, 1993, the body of Boston police Detective John Mulligan was discovered in his truck outside the Walgreens drug store on American Legion Highway in the Roslindale section of Boston.Mulligan had been shot in the head five times at extremely close range (estimated to be within two feet).On the morning of his murder, Mulligan had been working a paid security detail at Walgreens.A store employee leaving on break had seen Mulligan asleep in his truck at approximately 3:30 A.M.The same witness, on his return fifteen minutes later, saw Mulligan's bloodied face.When the employee was unable to rouse Mulligan, the police were summoned.Mulligan customarily carried his department-issued gun while working the Walgreens detail, but, when his body was inspected by the police, his holster was empty and his gun was missing.At trial, the Commonwealth's theory was that the defendantTerry Patterson and codefendant Sean Ellis had come upon the sleeping Mulligan and seized the opportunity to rob him of his service revolver.The prosecution proceeded on a theory of joint venture, arguing that either the defendant or Sean Ellis had shot Mulligan during the course of that robbery.

Based on information from neighbors, the police circulated a flyer with a description of a distinctive automobile seen in the area around the time of Mulligan's murder.This description eventually led police to Mark Evans, the defendant's brother, who had registered in his name a car matching the description mentioned in the flyer.The police came to Evans's home on Thursday, September 30, 1993, at which time Evans told the police that the car described in the flyer resembled a car registered in his name, but that the car was actually owned and used by his brother, the defendant, Terry Patterson.²

The morning after speaking with police, Evans contacted an attorney who was representing him on an unrelated civil matter.Evans made an appointment to see the attorney, and she suggested that Evans bring his brother to meet with her as well.Evans brought the defendant with him to a meeting with counsel on October 2, 1993.In the car on the way to that meeting, the defendant told Evans that he had been "there" with his friend Sean Ellis on the night of Mulligan's murder and that he had driven Ellis home.

When they arrived at the lawyer's office, the defendant and Evans met with her together.Evans relayed that the police had questioned him about the car and that he had told the police about the defendant's ownership of the car.Evans also recounted the defendant's statement to the effect that he(the defendant) had been at Walgreens that morning with Sean Ellis.Evans then told the attorney that the police wanted him to come to the station and give a statement.The attorney replied, in the defendant's presence, that Evans had nothing to worry about and that he should cooperate with the police and tell them the truth.³The attorney then met privately with the defendant.She undertook representation of the defendant and continued as his counsel through trial.⁴

The next day after this first meeting, the defendant and his attorney went to the police station and spoke with Detectives John Brazil and Dennis Harris.In that interview, the defendant admitted that he had been at Walgreens with his friend, Sean Ellis, on the morning of Mulligan's murder.The defendant told the police that Ellis had gone into the store to buy diapers.The defendant first related that, after Ellis made his purchase, he drove Ellis home.After further questioning, the defendant stated that, at some point after Ellis's purchase at Walgreens, Ellis had said he wanted to smoke a marijuana "blunt."The defendant and Ellis drove around the corner to a dead-end street next to some woods.⁵The defendant told the police that the two of them then started walking back through the woods toward Walgreens to get a cigar with which to make the blunt.The defendant claimed, however, that he stopped to relieve, himself and did not go all the way through the woods to the Walgreens parking lot.Detective Harris then accused the defendant of "shying away from the truth" about what had happened in the parking lot, but the defendant insisted that "nothing" had happened in the parking lot.Detective Harris asked the defendant if Ellis had asked him to do "something stupid," and recommended that he should not protect Ellis.Harris then asked, "Are you the triggerman?"The defendant replied, "No."

In late October, 1993, shortly after the defendant's arraignment, his lawyer received a copy of an affidavit that had been submitted in support of a search warrant application.That affidavit recounted a version of the defendant's October 3 statement that included one additional question and answer.As set forth in the affidavit, the interview concluded with Harris asking the defendant whether Ellis had been "the triggerman."The defendant had allegedly nodded in response.

When defense counsel received this version of the statement, she immediately informed the assistant district attorney, both orally and in writing (with a copy to Ellis's counsel), that that version was not accurate.Counsel stated that she had been present throughout the interview and that the defendant had never been asked whether Ellis had shot Mulligan.She further claimed that, if such a question had been asked of her client, she would have instructed him not to answer it.

In September, 1994, four months prior to trial, the defendant's lawyer and counsel for the codefendant Ellis each filed a motion to sever.In his motion, counsel for Ellis argued, inter alia, that introduction of Patterson's statement identifying Ellis as the "triggerman" would require severance under Bruton v. United States,391 U.S. 123(1968).As part of that argument, he also pointed out that, if the statement were introduced at Ellis's trial, he would have to call the defendant's counsel as a witness to refute that version of the defendant's statement.In the defendant's own motion to sever, his attorney also pointed out that, if tried together, Ellis would call her to the stand to testify about the defendant's statement.The motions to sever were allowed.

At Patterson's trial in January, 1995, several witnesses testified to seeing two black men, one tall and thin and the other shorter and heavier, near Walgreens in the early morning of September 26, 1993.One of the witnesses had seen the taller man crouching by Mulligan's car while hiding his hands in his sleeves.She identified Ellis as the man she had seen crouching by the car.⁶There was no eyewitness identification of the defendant, although the evidence confirmed that the defendant was shorter and heavier than Ellis and that he would fit the general description of the man who had been seen with Ellis.

The prosecution introduced fingerprint evidence taken from the door of Mulligan's truck, consisting of four "simultaneous" prints (i.e., prints from separate fingers of the same hand made at the same time).The police witness opined, based on the location of the prints and the direction in which they had streaked, that the prints had been left by a hand closing the door.The officer further opined that, looking at three of the prints combined, there were sufficient points of comparison to identify the prints as the defendant's, although he acknowledged on cross-examination that his identification method using cumulative points of comparison from different fingers was not the standard method for fingerprint identification.

The prosecution also introduced consciousness of guilt evidence.The day after Mulligan's murder, the defendant moved the car from its customary parking location and left it at the home of Evans's brother-in-law.When the police located the car a few days later, they found that its appearance had been altered and its registration plate removed.

Detective Harris testified with respect to the statement the defendant had given the police.On direct examination, Harris testified that the final question posed to the defendant during the interview was, "Are you the trigger man or is Sean?"Harris testified that the defendant had responded by nodding his head and that he had then stood up and rolled his eyes toward the ceiling.On cross-examination, Harris clarified that he had asked the defendant two separate questions: the defendant had first been asked whether he was the "trigger man," to...