Commonwealth v. Smiley

• Decision Date: 07 February 2000
• Citation: 727 NE 2d 1182,431 Mass. 477
• Parties: COMMONWEALTH v. TABUE K. SMILEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 477

727 NE 2d 1182

COMMONWEALTH v. TABUE K. SMILEY.

Supreme Judicial Court of Massachusetts, Hampden.

February 7, 2000.

May 12, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GRLANEY, IRELAND, & COWIN, JJ.

John M. Thompson for the defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

ABRAMS, J.

Convicted of murder in the first degree by reason of felony-murder, the defendant, Tabue Smiley, appeals.¹ He also appeals from the denial of his motion for a new trial. On appeal, the defendant challenges (1) one of the indictments against him; (2) the denial of his motion to suppress; (3) admission of evidence that he was a member of the "South Side Posse"; and (4) the jury instructions. He also asks this court to vacate his conviction of armed assault in a dwelling as duplicative. Finally, he requests relief pursuant to G. L. c. 278, § 33E. We vacate the conviction of armed assault in a dwelling. We affirm the other convictions. We conclude that there is no reason to grant the defendant a new trial or to enter a verdict of a lesser degree of guilt on his conviction of murder in the first degree. See G. L. c. 278, § 33E.

1. Facts. A jury could have found the following. On October 31, 1993, the defendant, Dennis Hardy, Fred Shinholster, Calvashon Johnson, and Shandell Redd planned to rob Oliver Edwards of drugs and money. To accomplish the robbery, they first went to Eric Williams's apartment to order drugs. Williams, who sold drugs for Edwards, paged Edwards and Edwards came to Williams's apartment. Subsequently, the defendant and others held Williams and Edwards at gunpoint and forced them to go to Edwards's apartment.

After arriving at Edwards's apartment, Hardy confined Williams in a closet. Hardy and others forced Edwards onto a couch in the living room with his girl friend, June Johnson, who had been present in the apartment when they entered. Hardy and Shinholster threatened Edwards and Johnson in order to get them to divulge the location of drugs and money in the apartment. Edwards eventually stated that there was cocaine in the basement. Redd and the defendant went to search the basement.

Hardy took Edwards to the basement stairs. He shot Edwards, causing Edwards to fall down the stairs. Hardy then returned to the living room and shot Johnson,² despite the defendant's protests. At one point, Hardy's pistol jammed, so he took the defendant's pistol. Hardy next returned to the basement and shot Edwards two more times. Hardy also shot Williams twice. Johnson and Williams both survived, but Edwards died from multiple gunshot wounds.

The defendant, Shinholster, and Johnson ran out of the apartment at the same time, before Hardy had finished his shooting rampage. They met up with Hardy and Redd at Rasheem Reid's house shortly thereafter. At Hardy's request, Shinholster hid the semiautomatic gun used earlier that night in a cemetery behind Reid's house.

A few days later, Shinholster turned himself in to the police and led them to the cemetery where police recovered the gun. On November 3, the defendant's mother engaged the services of Attorney Elton Williams to assist in the defendant's surrender. After consulting with Mr. Williams, the defendant gave a detailed statement to the police regarding the events of October 31. Mr. Williams served as the defendant's attorney for approximately four more weeks. He was subsequently replaced by appointed counsel.

2. The indictment. The defendant was indicted, inter alia, for armed assault in a dwelling. The indictment charged, in relevant part, that the defendant, "being armed with a dangerous weapon, namely a gun, did enter a dwelling house and while therein did assault the occupants with intent to commit a felony." The defendant notes that there were two occupants of the dwelling. He argues that the crime of armed assault in a dwelling is properly measured by the number of assaults within the dwelling. See Commonwealth v. Levia, 385 Mass. 345, 350-351 (1982). Thus, he contends, there were two separate crimes committed, one against Edwards and one against Johnson. Therefore, he concludes, the indictment improperly charged two crimes in a single count. See Commonwealth v. Barbosa, 421 Mass. 547, 550-553 (1995); Commonwealth v. Levia, supra.

We disagree.

Although the Commonwealth could have sought separate indictments, it was not required to do so. See Commonwealth v. Gunter, 427 Mass. 259, 275 n.17 (1998) (where defendant assaulted multiple persons, "[i]t would have been possible for the Commonwealth to request that the grand jury return three separate indictments for the three separate assaults, in addition to the indictment for [the victim's] murder" [emphasis added]). See also Commonwealth v. Selby, 426 Mass. 168, 172 (1997) (after threatening several people with handgun and killing one victim, defendant was indicted and convicted of single count of armed assault in dwelling and felony-murder based on that felony). The defendant's reliance on Levia is misplaced because that case, too, permits the Commonwealth to request multiple indictments without requiring it to do so. Commonwealth v. Levia, supra at 351 (defendant "may" be indicted for multiple counts of robbery where there are multiple victims with protective interest in property). Here, the Commonwealth was within its discretion in requesting and receiving a single indictment for armed assault in a dwelling.

3. The denial of the defendant's motion to suppress. The defendant contends that the statement he gave to the police after consulting with Mr. Williams should be suppressed. He argues that his statement was the product of ineffective assistance of counsel. Specifically, he states that Mr. Williams failed to complete an adequate factual investigation. Further, he asserts that Mr. Williams provided inadequate and misleading legal advice, especially with respect to the consequences of making the statement. Finally, he states that Mr. Williams was ineffective because he failed to pursue the opportunity for the defendant to become a cooperating witness, thereby depriving the defendant of any benefit he may have gained from making his statement.

The defendant concedes that neither the statement nor testimony concerning it was presented at trial. He does, however, express concern that "the extent to which the confession was used in ... cross-examination [of the defendant] is not clear." The defendant asserts that he was harmed most by virtue of the fact that a copy of the statement was given to Shinholster, who provided devastating testimony at trial. He argues that it was fundamentally unfair for the Commonwealth to offer Shinholster's testimony. The defendant concludes that, because of Mr. Williams's shortcomings, he was denied effective assistance of counsel, and, thus, his motion to suppress was denied erroneously. We disagree.

The defendant's right to counsel is "of little value unless there is an expectation that counsel's assistance will be effective." Commonwealth v. Griffin, 404 Mass. 372, 374 (1989), quoting Care and Protection of Stephen, 401 Mass. 144, 149 (1987). In examining the defendant's claim that his counsel was ineffective, we accept the motion judge's subsidiary findings of fact absent clear error. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990).

The motion judge here, who was also the trial judge, conducted a hearing at which the defendant, the defendant's mother, and Mr. Williams gave testimony. At the conclusion of the hearing, the judge made oral findings. He found that, when the defendant was en route to the police station with his mother and Mr. Williams, Mr. Williams advised the defendant not to make any statements to the police. Further, he found that the defendant wanted to cooperate with the prosecutor, and the defendant had initiated the subject himself. In addition, the judge found that Mr. Williams met with the defendant immediately before the defendant gave his statement to the police and "advised the defendant that he could be responsible for the homicide even though he never pulled the trigger himself."

The judge also found that the defendant did not receive any "bad" or incorrect advice. The judge made a specific finding that there was no ineffective assistance of counsel. Finally, he stated, "I ... find that [Mr.] Williams advised the defendant of the consequences of making a statement to the police; that there was advice given and understood; that the defendant could be convicted of first degree murder on the felony murder theory as well as on the joint venture theory."

In making these findings, the judge, acting within his discretion, credited Mr. Williams's testimony over that of the defendant. See Commonwealth v. Scott, 430 Mass. 351, 355 (1999) ("The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court" [citations omitted]). We accept these findings because they are supported by the record. Commonwealth v. Yesilciman, supra. These findings support the conclusion that the defendant was not denied effective assistance of counsel. Contrast Commonwealth v. Chetwynde, 31 Mass. App. Ct. 8, 12-14 (1991) (record did not support judge's finding that defendant received effective assistance where defendant weighed counsel's alleged misrepresentations in deciding to plead guilty); Commonwealth v. Moreau, 30 Mass. App. Ct. 677, 682 (1991), cert. denied, 502 U.S. 1049 (1992) (record did not support judge's conclusions that attorney's advice to confess did not constitute ineffective assistance of counsel). The motion to suppress was correctly denied.³

4. The admission of testimony regarding the "South Side Posse." During direct examination by the prosecutor, Springfield police Officer Peter Manolakis testified that the defendant was part of a group called the South Side Posse.⁴ Trial counsel objected. After a...