Opinion
No. 9673CR0312
DATED: December 18, 2000
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR A NEW TRIAL
INTRODUCTION
On December 18, 1998, a jury found the defendant Curtis Mitchell guilty on two counts of first degree murder, for the deaths of David Allen and Sonia Shurtliff. Mitchell now moves for a new trial pursuant to Mass.R.Crim.P. 30(b) on the ground that his Fifth, Sixth and Fourteenth Amendment rights were violated by counsel's invocation, during trial, of Massachusetts Rule of Professional Conduct 3.3 and this court's application of that rule to require the defendant to testify in a narrative fashion and to preclude defense counsel from arguing the defendant's testimony to the jury. In addition, Mitchell contends that counsel's substandard performance at trial deprived him of the effective assistance of counsel. For the reasons discussed below, the defendant's motion is DENIED.
BACKGROUND
The defendant, Curtis Mitchell, who was represented at trial by Attorney Francis O'Boy, was tried before a jury from December 10 to December 18, 1998 on two counts of first degree murder.
In his opening statement, defense counsel emphasized the lack of physical evidence tying the defendant to the crime. He stressed the lack of credibility of the witnesses who would implicate the defendant. In addition, he stated that the evidence would identify several people other than the defendant who had both motive and opportunity to kill the victims. Finally, counsel stressed that the Commonwealth bore the burden of proof beyond a reasonable doubt.
The first witness was Fall River Police Officer David Lafleur, who testified that on April 10, 1996, he went to the home of the deceased, Sonia Shurtliff and David Allen, at 101 Baker Street in Fall River. Lafleur testified that the left side of Shurtliff's face was very bruised and swollen, and that she stated that she had gone to 1091 Rodman Street, looking for Julius Adams, in order to purchase drugs. Shurtliff told Lafleur that Adams, who was angry at her for bringing someone he did not know to his house to purchase drugs, struck her in the face. Shurtliff later returned to Adams's house with her boyfriend, David Allen, and following a discussion about the earlier incident, Adams moved to strike her again. Allen grabbed Adams's arm and Adams's wife, Barbara, struck Shurtliff in the face with a cordless phone, knocking her to the ground. Officer Lafleur testified that Shurtliff wanted to file a complaint for assault and battery against Adams and his wife, and such charges were eventually brought. Lafleur further testified that on June 13, he went to 1091 Rodman Street to assist narcotics detectives in executing a search warrant for the Adams' apartment. That address is a large multi-family house with three apartments on the left and three apartments on the right. Lafleur testified that 101 Baker Street was parallel to 1091 Rodman Street, with the backyards abutting each other. He stated that he had patrolled the area including Rodman Street, Warren Street and part of Baker Street for several years.
On cross-examination, Lafleur testified that there was a driveway between 91 and 101 Baker Street which ran into a large parking area in the back. Lafleur stated that before Shurtliff's report, he was not aware that Adams had a reputation as a drug dealer. Lafleur stated that he had filed an application for a criminal complaint in District Court against Adams for assault and battery and a complaint against Barbara Adams for assault and battery with a dangerous weapon. He stated that Shurtliff went to Charlton Memorial Hospital for treatment of her injuries. Lafleur further testified that on June 12, he told Vice Squad Detective Donnelly that Shurtlieff stated that Adams was selling drugs. Lafleur opined that Donnelly had already put together a sufficient case against Adams to obtain a search warrant.
The next witness was Fall River Police Officer Joseph Donnelly, who testified that he had been assigned to the narcotics unit for ten years. Donnelly stated that on June 13, 1996, he went to 1091 Rodman Street to execute a search warrant for narcotics at the Adams' first floor apartment. As he was knocking on the door of the apartment, Barbara Adams came from the porch into the hallway and stated that it was her apartment. After Donnelly showed her the warrant and explained her rights, he asked her if there were any narcotics on her person or in the apartment she had knowledge of and wanted to produce prior to the search. Barbara produced marijuana and crack cocaine. Donnelly testified that Julius Adams arrived at the apartment approximately fifteen minutes into the search. Detectives Correia and Officer Lafleur, who were waiting outside for his return, escorted Adams into the apartment. Donnelly showed him the warrant and explained his rights, then asked if there were any narcotics on his person or in the apartment he wanted to produce. Adams led the detectives into a bedroom and produced more crack cocaine and marijuana. Donnelly testified that in excess of sixteen grams of cocaine were seized from the apartment. Upon completion of the search, Adams was arrested and taken to the police station. Donnelly further testifed that he had not made any additions, deletions or changes to his search warrant application based on his conversation with Officer Lafleur. The application was based on information received and surveillance conducted over a two and one half day period prior to his conversation with Lafleur.
On cross-examination, Donnelly testified that the sixteen grams of cocaine found in the Adams apartment was considered trafficking in cocaine, a crime which carried a mandatory minimum sentence. He further testified that the search warrant for Adams' apartment was based on information from a confidential informant that Adams was dealing marijuana. Prior to the two and one half days before June 13, Donnelly did not have any personal knowledge that Adams was dealing drugs out of his apartment. Donnelly stated that he never sent anybody in to make a controlled buy at 1091 Rodman Street. The affidavit for the warrant was based entirely on the confidential informant and on police surveillance in which police observed people going onto the porch and into the house.
The next witness was Julius Adams, who testified that on June 13, 1996, police raided his apartment, seized a quantity of drugs and arrested him. He testified that when he returned to his apartment after his wife bailed him out of jail, the defendant was there. Adams told the defendant and his wife that he had learned the basis of the search warrant from police, and that someone had told police that they overheard Adams stating that Thursday would be a good day to see him. From this statement, Adams concluded that Sonia Shurtliff and David Allen were the confidential informants cited in the search warrant affidavit. Adams testified that he sold drugs to Shurtliff and Allen, who lived at 101 Baker Street. Adams stated that on April 10, 1996, he had an argument with Shurtliff and Allen which led to a fight, following which he told them that he didn't want anything else to do with them. Adams testified that he never sold drugs to Shurtliff and Allen after that date. Adams admitted that he and his wife hit Shurtliff during the argument, resulting in criminal charges against them.
Adams further testified that in June of 1996, he had a close relationship of "mutual respect" with the defendant. Adams stated that he was involved in drug dealing for six months to make ends meet after he stopped doing construction work due to a back injury, but stated that the defendant did not sell drugs for him. He testified that when he returned from jail, he told his wife, her friends, Jamal Sims, and the defendant that he believed that Shurtliff and Allen had told police he was selling drugs. Adams and the defendant drove to the Shell gas station on Plymouth Avenue to get cigarettes and then returned back to Rodman Street. The defendant asked Adams if he wanted to do anything about the fact that Shurtliff and Allen had talked to police, and Adams responded that he did not.
Adams testified that later that evening around midnight, he was on his front porch talking to his brother in law when he saw the defendant coming from the back of the building. The defendant, who appeared nervous, was dressed in black nylon sweat pants, a black sweatshirt and white glove liners which were reddish. When Adams asked what was up, the defendant replied, "I did it." Adams asked, "Did what?" to which the defendant responded, "Sonia and David." Adams testified that he asked why, but the defendant did not answer. The defendant went up the stairs and Adams entered the house. Adams was outside approximately fifteen minutes later when he saw the defendant exit the front door carrying a brown backpack. The defendant stated that he had to go do something, and Adams replied, "Well, do whatever you got to do." Adams testified that several days later, the defendant called him, and Adams told him that police wanted to talk to him about the killings at Baker Street. The following day, while driving the defendant to a lawyer's office, Adams told the defendant that police were asking questions about the defendant's involvement and that Adams had told police he didn't know anything. Adams testified that he was charged as a result of the drug raid, pled guilty and received a prison sentence of three to four years followed by three years probation. He stated that he was still serving that sentence.
On cross-examination, Adams stated that he pled guilty to trafficking in Superior Court and received a three to four sentence in state prison, and admitted that other charges against him had been nol prossed, including assault and battery charges. Adams denied that he had expected to receive more lenient treatment because he talked to police about the killing of Shurtliff and Allen.
Adams stated that he supplied the defendant with drugs which the defendant then sold, but denied being the premier dealer in that area of Fall River. Adams stated that on the night of June 13, he and the defendant went to Adams's mother in law's house to get money and then went to the gas station. Adams denied that he got $50 from his mother in law and denied that he dropped the defendant off at one Hamilton's house to get a gun. Adams further denied that he was angry at Shurtliff and Allen because of the raid and resulting felony charges. He also denied that after being bailed out of jail on June 13, he stated, "Sonia Shurtliff's going to pay. I'm going to take something away from her." Finally, he admitted that after driving the defendant to an attorney's office he called police and told them that the defendant was coming in with a lawyer, but denied that this was an attempt to curry favor with police.
On re-direct examination, Adams testified that the indictment against him for trafficking in a school zone was dropped after he told his attorney that there was a day care center, but not a school, near his house. Adams denied receiving any promises, rewards or inducements in exchange for his testimony, and denied any involvement in the killings of David Allen and Sonia Shurtliff.
On re-cross examination, Adams admitted that at a voir dire outside the presence of the jury, he had stated that he thought it was in his best interests to testify in this case.
The next witness was Tonya Oliver, whose video-taped testimony was played for the jury.
Oliver testified that she lived at 91 Baker Street in Fall River. Her boyfriend was driving her home at about 12:30 a.m. on June 14, 1996, and stopped the car so that she could check her mailbox, which was located in front of 101 Baker Street. Before she exited the car to get her mail, she saw a dark-skinned black male, approximately 5' 10", wearing dark clothing, walking by 91 Baker Street toward Warren Street. The man was about six feet away from her and was walking toward Warren Street. He was wearing a hat and dark clothing, possibly a sweatshirt. She recognized the man as someone she had met on a few prior occasions, whom she knew only as Marcus.
On cross-examination, Oliver stated that she had seen the man she knew as Marcus about three times before June 14, 1996. She admitted that she had described him to Trooper Dugan as 5'7" and that she told Trooper Blaise that Marcus weighed about 160 lbs. and had a chubby face, with a scar on his right cheek and lots of blotches on his face from acne. She admitted that the police report stated that she had described the man as having scars on his arms. Oliver admitted that on June 14, 1996, she saw the man's face for only a couple of seconds, and stated that he did not appear nervous, upset or agitated. She testified that she did not observe his hands and did not see any blood on him. Oliver stated that she did not see Marcus come out of the building at 101 Baker Street or stop in front of that address. Finally, she admitted that she had refused requests by the police that she view a line up or photo array to identify the man she saw that evening.
The next witness was Alvin Patterson, who testified that he lived at 101 Baker Street in a third floor apartment with Eleanor O'Connell. Patterson testified that at approximately 11:30 p.m. on June 13, 1996, he awoke and thought he heard a knock on his door. He looked through the peephole and saw the defendant knocking on the door directly across the hall, where Shurtliff and Allen lived. He saw Allen open the door and heard Shurtliff ask, "Who is it?" to which Allen replied, "Curtis." The defendant went inside the apartment and the door closed. Patterson testified that he then went into his kitchen for a snack. He heard loud music and then what sounded like a loud branch snapping. He went into his bedroom and turned the television on low. Between fifteen minutes and a half hour later, Patterson heard a door close out in the hall. It was between 11:30 p.m. and midnight. Patterson testified that when he woke up the next morning at approximately 6:30 a.m., he heard a faint knock on his door, but didn't see anyone when he looked through the peephole or when he opened the door. The people who lived downstairs then knocked on Patterson's door. After conversing with them, Patterson went to the back door of Shurtliff and Allen's apartment. He could see inside their living room. His neighbor went inside the living room and came out, after which Patterson called 911.
On cross-examination, Patterson admitted that he was convicted in 1980 in Barnstable District Court of rape of a child, convicted in 1988 of intimidation, convicted in 1992 in Fall River District Court of assault and battery of a police officer, convicted in1993 in Fall River District Court of violating a restraining order, and convicted in 1994 in Barnstable District Court of assault and battery with a dangerous weapon. Patterson admitted that June 13 was a hot night, that the air conditioner was on in his apartment and that when initially interviewed by police, he stated that he couldn't hear anything because the air conditioner was on and didn't know about the killings until the following morning. Patterson further admitted that he told police that he heard the front door to Shurtliff and Allen's apartment shut and then about a minute later, heard the back door to the apartment shut. Patterson stated that he told police that he heard two pops or snaps coming from their apartment but that he did not believe them to be gun shots. Patterson further stated that he told police that Allen was very nervous, and O'Connell told police that either Allen or Shurtliff owed somebody money for drugs, and that the two of them had fled Fall River for a period of time because they owed a dealer money. Patterson admitted that O'Connell had a fight with Shurtliff within ten days prior to the killings.
On re-direct examination, Patterson testified that prior to June 13, he had seen the defendant at Shurtliff and Allen's apartment. He stated that Allen had put a nail in the double doors to the house so they would not open. On re-cross examination, Patterson admitted that the first few times he talked to police, he never identified the man in the hallway as the defendant. He stated that drugs were dealt out of the house across the street and that a black man from that house with a bicycle frequently came over to Shurtliff and Allen's apartment. Patterson testified that he did not tell everything to police until after an arrest was made because he feared for O'Connell's grandchildren, and that two days later, he and O'Connell moved out of Baker Street and stayed at different motels for about a month. On further cross-examination, Patterson testified that beginning in the winter of 1996, Julius Adams would drive a white vehicle in front of 101 Baker Street two or three times a day, several days a week, and lean on the horn until Allen came out of the house. They would exchange words briefly and then Allen would return to the house. During this period, Allen nailed the doors of the house shut. Finally, Patterson denied being in fear of Adams.
The next witness was Officer Russell Hague of the Fall River Police Department, who testified that he received a call on the morning of June 14, 1996 to go to 101 Baker Street. After speaking to Alvin Patterson, Officer Hague, Officer Malek and two rescue workers entered Shurtliff and Allen's apartment. Hague observed Allen lying on a couch, with a pillow over his face, and blood all over his chest. He also observed Shurtliff lying on a different couch, naked from the waist down, with a lamp cord wrapped around her neck and stab wounds in her chest. Hague testified that he then called the police station and the medical examiner and remained on the scene until officers from the Major Crimes Division arrived. On cross-examination, Hague testified that Patterson had never informed him that he had seen someone at the victims' apartment the night before. However, Hague stated that he was not assigned to interview the witnesses in this case.
The next witness was Michelle Freitas, who testified that on June 13, 1996, she was at her friend Angie Ferreira's house at the Sunset Hill housing project in Fall River when she received a phone call at approximately 6:00 p.m. from the defendant, with whom she had been living for approximately one month. Around midnight, Tracy Oliver drove Freitas home to Rodman Street. The defendant's friend Jamal Sims was there. Freitas went into the living room and watched television. Approximately an hour later, Freitas heard the defendant come home, talk to Sims in the dining room and then run up and down the stairs to the bedroom several times. Freitas then heard water running in the bathroom. Freitas testified that the defendant and Sims then came into the living room and smoked marijuana. When the defendant and Freitas went upstairs to go to sleep, the defendant kneeled down by the side of the bed and prayed, which Freitas had never seen him do before. He then lay in bed and stared at the ceiling. When Freitas asked him what was wrong, he stated, "You would feel this way if you killed two people too." Freitas testified that she was scared and didn't fully sleep.
Freitas further testified that the next morning when she woke up, the defendant was putting clothes in a garbage bag. The defendant told her that she could not stay at the house because people were going to ask her questions and further stated that he was going away for a couple of days.
Freitas's friend Eric picked up Freitas, the defendant and Sims and brought the defendant to the bus station. Freitas went to her friend Angie's house. While she was there, the defendant called her and asked if anyone had been asking her questions and she replied in the negative. After staying with her friend Heidi for a couple of days, Freitas went to the house of the defendant's cousin, Dora.
The defendant came to Dora's house and told Freitas that he needed to see a lawyer because he knew he was going to be questioned. Freitas testified that the defendant instructed her to tell police, if they questioned her, that she was sleeping on his chest the whole night and that she was with him all night. Freitas then testified that that story was not true. Freitas stated that she and the defendant went to the lawyer's office, after which, she returned to Dora's house alone. As she was arriving, police drove up behind the cab and took her to the police station for questioning.
When she returned to Dora's house, the defendant was there. He asked her what she told police, and she responded that she told them exactly what he had instructed her to. Freitas testified that she spoke to police on two other occasions and gave them the same story because she was scared. After she spoke to police the third time, on August 21, she was arrested and charged with being an accessory after the fact. At the police station, she learned that the defendant was also under arrest.
On cross-examination, Freitas denied that the district attorney had made any promises of leniency in exchange for her testimony. She stated that she just wanted to tell the truth. She admitted that she had lied to police three times. Freitas stated that when she saw the defendant putting clothes into the trash bag, she was aware that he believed he was going to be the subject of a drug raid like Julius Adams. Freitas denied that she was angry at the defendant because instead of going to stay with his daughter in Boston he had gone to Martha's Vineyard and stayed with two women, Kimberly Gaspar and India Rose. Freitas testified that the defendant purchased his drugs from Julius Adams and that the defendant bragged a lot and tried to appear tougher than he was. She testified that the first time she spoke to police, Detective Castro told her that she was going to be charged as an accessory after the fact. However, she then testified that she was not aware she was going to be charged until the third time she spoke to police, following several hours of interrogation and a videotaped interview. Freitas admitted that on June 13, when she first heard the defendant enter the apartment, she did not have the opportunity to observe him. After he came out of the bathroom, he was wearing shorts and a jersey. She did not observe any blood on his hands or signs that he had been involved in a struggle. Freitas admitted that on August 21, police had arrested her at her place of employment in Dartmouth, prior to the two hour interrogation. Freitas testified that the defendant had not given her any reason to be afraid of him prior to June 13. She further testified that to her knowledge, once the defendant got into bed with her on June 13, he did not leave. She stated that on the morning of June 14, on the way to the bus station, they stopped at the house of Alberta Black, Julius Adams's mother-in-law, to get money.
On re-direct examination, Freitas testified that she was afraid after the defendant stated he had killed two people, and that she told police that the defendant threatened that if she did not give police the story he instructed her to, she would be next. She testified that she changed her story to police on August 21 because the defendant had been arrested and couldn't touch her.
The next witness was Kimberly Gaspar who testified that on June 14, 1996, the defendant called her at her house in West Tisbury and stated that he was coming there. When she picked the defendant up at the boat terminal in Oak Bluffs Harbor, the defendant told her he had come to Martha's Vineyard because he had murdered two people over drugs. He stated that he put a pillow over the man's head and shot him and then strangled the woman. Gaspar further testified that the defendant stated that the woman was hard to kill and that he was glad the kids did not wake up.
Gaspar testified that the defendant stayed at her house that night but that the next day, she dropped him off at the beach. After that, the defendant called her and she dropped his clothes off at a hotel and never heard from him again.
On cross-examination, Gaspar testified that she and the defendant were friends. She denied having any romantic feelings for him but admitted that she wrote him numerous letters after June 14. She admitted that when she dropped the defendant off at the beach, he was going to see another woman, India Rose, but denied being angry over that. She admitted that when he stayed with her, they slept in the same bed. Gaspar testified that she didn't remember whether the defendant often bragged about his accomplishments. She admitted that she told police that she was upset that the defendant was talking to India Rose on the beach. She testified that she had read in the paper about the June 13 murders on Baker Street in Fall River, but denied having read about the details of the murders.
The next witness was India Rose, who testified that she lived in Martha's Vineyard and that on June 14 or 15, she received a call from the defendant and met him on the beach. When she asked why he was on the island, he stated that he was in trouble with the law and that he had killed two people because one of them had his uncle's house raided and they owed him money. The defendant further stated that he had shot, stabbed and strangled them but that they just wouldn't die. Rose testified that the defendant stated that his fingerprints were in the house, but that that wouldn't make him a suspect because the victims knew him. Rose stated that she checked the defendant into a hotel and told him to come by her work later, but he never did.
On cross-examination, Rose testified that when she saw the defendant at the beach, he was with Kim Gaspar. She denied that Gaspar appeared jealous that the defendant was staying with her. Rose admitted that she spent a few hours with the defendant at the hotel and that they kissed. She stated that she did not feel threatened by the defendant and that he liked to talk about himself and brag. She testified that the defendant was wearing a cut off tank top and that she had not observed any cuts or scrapes on his hands or arms. She admitted that she did not go to police after the defendant stated that he had killed two people. She denied that when police questioned her, they stated that she could be an accessory after the fact. On re-direct examination, Rose testified that when the defendant stated that he had killed two people, it really didn't sink in. On re-cross, Rose testified that she looked in the papers to see if any murders had occurred in Fall River, but never saw any such reports.
The next witness was State Police Trooper Thomas Dugan, a detective with the Bristol County District Attorney's Office. Dugan testified that on June 14 at approximately 8:15 a.m., he responded to a call concerning 101 Baker Street in Fall River. He testified that upon entering the crime scene, he observed a deceased female, nude from the waist down, her blouse soaked with blood, and an electrical cord wrapped around her neck. He also observed a deceased male with numerous stab wounds to the chest and a pillow covering his face. Dugan testified that he observed a small revolver and a bloody steak knife on the floor about five feet from the male victim, and that the end table contained a stack of playing cards and a glass of liquid with what appeared to be blood stains on it. Dugan testified that he was the lead investigator in the case and that at approximately 1:00 p.m., all the investigating officers returned to the police station after locking the doors of the apartment and marking them with crime scene tape.
On cross-examination, Dugan testified that he seized the bloody knife and gave it to Trooper Wayne Riley, a crime scene technician. Dugan testified that the wooden handle of the knife was dusted for fingerprints but that no identifiable prints were obtained. Dugan admitted that he never scraped blood off the knife or had the knife tested at the state police crime lab to determine whose blood was on it. He stated that blood samples were taken from the victims and that blood had been drawn from the defendant. Dugan admitted that at a later point in time, Fall River Police found a pair of scissors underneath the sofa in the apartment and took scrapings from them. Dugan testified that police never asked the medical examiner to determine whether the victims' wounds were caused by a knife or scissors, as police did not believe that scissors had been used in the killings. In addition, the medical examiner determined that the knife was consistent with the victims' wounds.
Dugan further testified that the defendant became a suspect on either June 17 or 18, before police spoke to Freitas the second time and before they spoke to either Gaspar or Rose. Police were looking at anyone with any type of dealings with Shurtliff and Allen. Dugan testified that police interrogated Gaspar for approximately forty-five minutes at her place of employment, stated that they knew the defendant had contacted her, and suggested that she could possibly be charged. However, he denied that it was immediately after that that Gaspar related to police the statements made by the defendant. Dugan further denied that police ever told Rose that she could be charged as an accessory after the fact. Dugan testified that the gun shot wound on David Allen's head was a contact wound. He admitted that police never asked the defendant to submit to a paraffin or other chemical test to determine if he had recently fired a gun. Dugan testified that in August of 1998, police learned that one Richard Fitz had been arrested in New Bedford and had asked to talk to police about the murders of Shurtliff and Allen. Police learned that Fitz was hiding from the Department of Youth Services and that Shurtliff and Allen had moved in with Fitz in Middleboro because they were afraid of someone in Fall River. Dugan denied that police knew that it was Julius Adams. Fitz told police that Shurtliff and Allen had ripped drugs off David Elmes. Fitz also told police that Roy Carreiro was pressing either Shurtliff or Allen to pay a drug debt. Police had spoken to Carreiro earlier but did not interview him again after speaking to Fitz.
Dugan testified that police initially had several suspects, including the defendant, Jamal Sims, and Julius Adams. Police became aware that different individuals such as Derek Duchaine had drug-related disputes with Shurtliff and Allen. Police learned that an individual in the Baker Street house, Michael Burdette, was supplying them with drugs. Dugan denied that when interrogating Adams, police learned that Duchaine and Burdette were on the front porch of 101 Baker Street on the afternoon of the murders. Dugan stated that prior to the defendant's arrest on August 21, he spoke to police on three or four occasions. He testified that the defendant never admitted to being in the victims' apartment building on June 13 and never admitted any involvement in the murders. Dugan testified that Freitas never told police that the defendant threatened her that she would be next if she didn't keep her mouth shut. Dugan admitted that Gaspar told police that the defendant had stated that he put a pillow over Allen's head and then shot him, but there was no hole in any pillow at the crime scene.
Dugan further testified that a knife with a broken blade was found at the crime scene and that the police crime lab in Middleboro tested it, but it was never sent to the main crime lab in Sudbury. In addition, police found another knife in the closet which they never tested. Dugan testified that some hairs were found in Shurtliff's hand and were sent to the crime lab in Sudbury for examination. Dugan admitted that he testified before the grand jury that the victims' daughter Kia told police that she had moved the gun from beside her father's foot and placed it under the bed. He testified that the victims' older daughter, Tatiana, kept changing her story to investigators about who she saw enter the apartment that night. First she said it was two men and one woman, other times she said it was only two men. On one occasion, Tatiana told police that the people in the apartment were Johnny, Mike and Stephanie. Dugan stated that police investigated Michael Burdette and his friend Derek Duchaine. Police interviewed Duchaine but not Burdette. Dugan also testified that Roy Carreiro told police that on July 1, he was sitting on the porch with Duchaine and Burdette discussing the murders at 101 Baker Street, when Duchaine became agitated, pulled a gun from his waistband and started waving it around. Burdette tried to quiet Duchaine down, telling him not to talk so loud about it. Burdette told Duchaine that Shurtliff and Allen owed him $2,200 for drugs. Dugan testified that one Marilyn Moniz told police that the victims were in the witness protection program and that the person about whom they provided information had been released from prison the day before the murders. However, police were unable to confirm this through the Department of Corrections.
Finally, Dugan testified that Tatiana Allen identified the woman in the apartment as Stephanie, but later said it was Barbara. He further testified that police investigated Barbara Adams, who had assaulted Sonia Shurtliff several weeks before the murders. Dugan admitted that Patterson, who said he saw the defendant entering the apartment, changed his story to police several times. Dugan further admitted that although police were aware of Julius Adams' dispute with Shurtliff and Allen, police never tested Adams to determine whether he had recently discharged a firearm. Dugan testified that police learned from Tatiana and Kia that when they went to bed at 8:00 on June 13, a man named Bobby was at their apartment playing cards. As a result, police investigated one Bobby Houston. Dugan testified that police found a letter in the apartment which made reference to Barbara Adams and dealing with "Ant," the street name for Julius Adams, but police did not get handwriting exemplars from Julius or Barbara Adams.
On re-direct examination, Dugan testified that police eliminated Bobby Houston, David Elmes, and Roy Carreiro as suspects because they did not match Patterson's description of who he saw at the door of the apartment and they could account for their whereabouts. He further testified that police eliminated Richard Fitz as a suspect because he was incarcerated when the murders occurred. Dugan testified that he did not believe the scissors were used in the murders because the substance scraped off them was minuscule for the killings that occurred and the victims' wounds were not consistent with a scissors. He stated that he did not request paraffin tests because they yield unreliable results. Dugan testified that police interviewed the victims' children, Kia and Tatiana, three times. Kia was three years old and Tatiana was five years old at the time. He testified that Patterson told police he changed his story several times because he feared for the safety of his girlfriend's grandchildren. On re-cross examination, Dugan admitted that two other tests, spectrograph and nitric acid, were available to test whether someone had recently fired a gun, but that police did not ask the defendant to submit to these tests. Dugan explained that the nitric acid test requires a swab from the person's hands within six hours of firing a gun.
The next witness was State Police Trooper Wayne Riley, who was called to 101 Baker Street on June 14, 1996 to collect evidence to be sent to the state lab. Riley testified that he collected a handgun and steak knife from the scene, as well as two other knives, a pair of scissors, a lamp found around the neck of the female victim, an ashtray and a glass. A fingerprint found on the glass belonged to Shurtliff. In addition, Riley received a pair of scissors with orange plastic handles from the Fall River police on June 27. On cross-examination, Riley testified that except for the print on the glass, police did not find any identifiable prints at the crime scene.
The next witness was Medical Examiner James Weiner, who conducted autopsies of the victims. He testified that David Allen died from a contact gun shot wound to the head and suffered approximately twenty stab wounds to his chest, neck and left cheek. Weiner opined that the stab wounds were caused by a single edged knife blade and stated that he was unable to determine whether these wounds were fatal when inflicted. However, he testified that they were inflicted with a great deal of force. Weiner further testified that Sonia Shurtliff suffered a gunshot wound to the head, inflicted from a distance, and twenty-six stab wounds to her chest, jaw, neck and face. In addition, Shurtliff was strangled, probably with an electrical cord, which did not produce an immediate death.
On cross-examination, Weiner testified that the gun shot wound to Allen's head was inconsistent with a gun being fired through a pillow. He stated that he found several dark hairs stuck to Shurtliff's left hand and a single dark hair stuck to the back of her right hand. Weiner admitted that there was no evidence on either body that the knife used was serrated. He declined to give an opinion as to whether the knife should have been tested to determine whether the blood on it belonged to the victim or to an assailant who, wielding it with great force, might have slipped and cut his or her own hand.
The next witness was Elizabeth Fisher, a serologist employed by the Police Crime Lab in Sudbury, who testified that she received and tested various items from the crime scene. Fisher testified that on October 28, 1998, she sent hairs and residue taken from Shurtliff's hand, scrapings and three blood samples to Cellmark Diagnostic laboratory for DNA testing at the request of the defendant's attorney. Fisher testified that she had not recommended DNA testing of these items because the hairs did not look foreign to the victim and did not have large follicular tags from which DNA results could be obtained, and the scrapings were too small to test. On cross-examination, Fisher acknowledged that Cellmark was a recognized leader in the field of DNA testing. She admitted that as far as she knew, she had not found anything to link the defendant to 101 Baker Street on June 13 or 14. She testified that she had not done any serological testing of the knife to determine blood type because the Sudbury lab no longer did that type of testing. She stated that she was not asked to test hairs found in several face cloths at the scene.
Following Fisher's testimony, the defense was permitted to call one of its witnesses, Jackie Higgens, a staff DNA analyst employed by Cellmark Diagnostic, out of order. Higgens testified that on October 30, 1998, she received evidence from defense counsel for testing. She stated that she received an envelope labeled that it contained scrapings, but that the envelope was empty. She also received eleven hairs with an instruction to proceed with six so that the sample would not be exhausted. Her testing excluded David Allen and the defendant as a source of the hairs but could not exclude Sonia Shurtliff. On cross-examination, Higgens stated that she analyzed the six hairs which appeared to have the most cellular material.
The Commonwealth then called its next witness, Fall River Detective Mark Bouchard who testified that he took photographs and video of the crime scene on June 14, 1996. He testified that after leaving the crime scene at 1:00 p.m., he returned at about 5:00 p.m. at which time he recovered several soda bottles with straws in the stairwell, and a couple of small plastic bags, some pieces of aluminum foil and a handwritten note from the coffee table inside the apartment. Bouchard further testified that he returned to the crime scene on June 18, 1996 and recovered a pair of sneakers, a plastic bag with white powder in it, a black holster and a piece of a broken lamp. On June 26, he again returned to the scene and found a pair of scissors underneath the love seat in the living room on which David Allen had been found. Bouchard testified that he observed small brown spots on the scissors, about the size of the head of a pin, which appeared to be blood. He scraped these into an envelope which he then sealed, signed and dated. He later turned the envelope over to Trooper Dugan. On cross-examination, Bouchard denied that he had discussed the contents of the envelope with Beth Fisher of the crime lab or with the district attorney.
The next witness was State Trooper Douglas Weddleton, a sergeant with the State Police assigned to the firearms identification section. He testified that on June 14, 1996, he recovered a .22 caliber gun and a projectile from the crime scene at 101 Baker Street. Weddleton testified that out of the seven cylinders in the gun, there were two discharged cartridges, one live cartridge which had misfired, two empty cylinders, and two live cartridges remaining. He testified that test firings of the gun matched one of the spent casings at the crime scene.
The next witness was Fall River Police Detective Joseph Castro, who testified that he responded to a call to go to 101 Baker Street on June 14, 1996, where he interviewed Alvin Patterson, Eleanor O'Connell and others. Castro testified that on June 18, he received a phone call from a man who stated that he did not want Castro to speak with Michelle Freitas. A few minutes later, Castro received another call from a man identifying himself as the defendant, stating that he did not want Castro to speak to Freitas. Castro replied that he would talk to Freitas as long as she wanted to speak to him. Castro recognized the caller to be the same as the previous call minutes earlier. Castro testified that he called the defendant on August 21 and stated that he wanted to talk to him outside his house. On that occasion, Castro recognized that the defendant's voice was the same as the voice from the June calls.
On cross-examination, Castro admitted that the August 21 call was made on a cellular phone and that the sound on a cell phone often sounds different than the sound on a fixed phone. Castro further admitted that in an October 2, 1996 police report, he stated that he identified the second caller as the defendant, not that the defendant identified himself. Castro testified that on August 21, the defendant complied with Castro's request and met him in front of the house. Castro also agreed that the defendant had talked to Fall River police voluntarily on several occasions. Castro admitted that he learned that Julius Adams suspected Shurtliff and Allen of being the informants against him and that Adams had stated he wanted them to know what it's like to lose something.
The next witness was Lorraine Hamilton, who testified that on the evening of June 13, 1996, the defendant came to her home. She stated that she is legally blind in both eyes but that she knew the defendant from around the neighborhood. Hamilton testified that she and the defendant spoke about a gun which a friend had left at her house. The defendant asked her the price for the gun and she told him $50. Two hours later, the defendant returned to her house with $50 and she gave him the gun. He asked for a rag and alcohol to clean off the gun. When she asked him what he was going to do with the gun, he said it was for the people who snitched on Barbara. Hamilton stated that Barbara was Barbara Adams, wife of Anthony Julius Adams. Hamilton further testified that a week later, the defendant returned to her house and stated that the gun didn't work right and only fired off one shot. Hamilton was frightened and gave him back his $50.
On cross-examination, Hamilton admitted to a conviction in 1994 for possession of cocaine with intent to distribute, and two convictions of prostitution, two convictions of possession of Class D substance, and one conviction of a firearms violation in 1998. Hamilton admitted that she used drugs and that she obtained them from Barbara and Julius Adams. She denied knowing that the defendant obtained the money for the gun from Julius Adams' mother-in-law, Alberta Black.
She further denied that Julius had a reputation for being violent if owed money and denied that he was the individual who purchased the gun from her. She admitted that several other people were in her apartment when the defendant came back to purchase the gun, but could not remember their names and the police never asked her for their names.
The next witness was Fall River Police Detective Paul Santos, who stated that on June 14, he was assigned to be the lead investigator in the killing of Shurtliff and Allen, but Detective Castro took over as the lead when he went on military leave. Santos testified that on June 27, the defendant initiated a conversation with police. The defendant was given Miranda warnings and signed a written Miranda form. The defendant stated that Shurtliff and Allen used to buy drugs solely through him, and that he bought his drugs from Julius Adams and dealt drugs for Adams.
The defendant told Santos that he went to Martha's Vineyard around June 14 because Adams' apartment had been raided and Barbara Adams claimed that one of the detectives had stated that he didn't like the defendant and he was going to be raided next. When Santos asked the defendant what he thought happened to the victims, the defendant suggested that Derek and Shawn had been involved in drugs with them, or that it could have been Tonya Oliver's boyfriend. The defendant also suggested that more than one person had to have committed the crime because Sonia Shurtliff was a big girl and it would take more than one person to hang her. Santos asked the defendant how he knew that Shurtliff had been hanged and the defendant stated that's what he heard. The defendant told Santos that he would assist police in trying to locate the murderers.
On cross-examination, Santos admitted that Derek Duchaine stated that he had supplied drugs to Shurtliff and Allen, who owed him money, and that he would go to their house and beep the horn until Allen came out. Santos stated that Duchaine had provided an alibi for the evening of the murders but that police had not checked it. Santos admitted that Duchaine stated that Shurtliff and Allen had gone to Middleboro for a few weeks because they were in fear of a drug dealer. Santos stated that the defendant told him that Allen was working for Duchaine or Shawn and that Allen had ripped them off for the drugs. Santos stated that to his knowledge, the newspapers had not reported that Shurtliff had been hung. Finally, Santos admitted that he did not investigate the identity of Tonya Oliver's boyfriend, although State Police learned it. Following this testimony, the Commonwealth rested.
The defense then called Willie Smith, who testified that he was Barbara Adams' brother. He testified that on June 13, 1996, he lived at 1091 Rodman Street, and arrived home from work at approximately 12:30 p.m. to find his brother-in-law, Julius Adams, sitting on the front porch. While Smith sat talking to Adams on the porch, the defendant arrived and began talking to Adams, so Smith went in the house. Smith testified that the porch lights were on and he did not notice any blood on the defendant's clothing. He further testified that the defendant was not wearing gloves. Smith stated that he did not pay any attention to the conversation between the defendant and Adams. On cross-examination, Smith admitted that he did not look carefully at the defendant's clothing or pay particular attention to the defendant's hands. Smith testified that he could not remember if the defendant was wearing light or dark clothing, but he had a dark colored backpack with him.
The defendant then took the stand. Defense counsel asked him to state his name, which he did. Counsel then asked, "Mr. Mitchell, what do you wish to tell these jurors?" The defendant proceeded to testify in a narrative form. He stated that on June 13 at approximately 6:00 p.m., he was sitting on the porch with Barbara Adams and Jamal Sims when the police began raiding the Adams' apartment. When the defendant asked police what was going on, the officers told him to mind his own business. Barbara Adams asked the defendant to get her nephew Ethan and bring him to her mother-in-law's house, but the defendant brought him to his apartment instead. The defendant testified that he paged Julius Adams to inform him that his house was being raided. Adams showed up ten to fifteen minutes later. The defendant, looking out his apartment window, saw police arrest Julius Adams. He went to talk to Barbara Adams, who told him that police didn't like him and that she overheard two police officers stating that they should raid the defendant next.
The defendant testified that he went upstairs and began discussing the raid and Barbara's statement with Jamal Sims. They discussed the fact that Adams was released on only $25 bail twenty-five minutes after his arrest, and rode in the front of the police car. The defendant opined that Adams had received special treatment. The defendant and Sims went downstairs when Adams returned at about 7:30 p.m. Adams stated that he had cooperated with police and that police had told him that the informants in the case were Sonia Shurtliff and David Allen. The defendant testified that Adams began to blame him for the raid because he was friendly with Shurtliff and Allen, and because police knew that Adams was getting the big package on Thursdays, but the defendant was the only one with that information, so he must have told Shurtliff and Allen. Adams was angry, stating that the raid had cost him $5,000 in drugs and money seized by police and it was going to cost him a lot to get an attorney. The defendant testified that Adams stated that Shurtliff and Allen needed to feel what it's like to lose something.
The defendant asked Adams if police had said anything about him, and Adams replied that they had just asked where he lived. The defendant asked Adams to take him and Sims to the Shell gas station to get cigarettes. Adams took the defendant and Sims to the house of Alberta Black, his mother-in-law, got some money, and then drove to the gas station. The defendant testified that in the car, Adams asked him if he was still going to sell the drugs, and he responded that he did not want to because he was afraid of being raided next. Adams stated that since he was hot, they should start selling drugs out of the defendant's apartment and lock the downstairs door to the building and pull the shade so police couldn't see which apartment people were going to. The defendant stated that he was a little intimidated by Adams and told him that he would think about it. The defendant testified that at about 11:30, he put his drugs in a backpack, brought them to his cousin's house and asked her if she could hold onto them for a couple of days because he did not want to be raided. When he returned to the house, he saw Julius Adams and Willie Smith on the porch. Adams asked him if he had seen or heard anything and the defendant stated no, it had been quiet. Adams then asked the defendant if he could see his buck knife and the defendant gave it to him. As he went into the house, Adams stated, "Just remember, keep it quiet." The defendant testified that he didn't know what that meant. The defendant went upstairs to his apartment where Michelle Freitas and Jamal Sims were. After he and Sims smoked some marijuana, they went to bed.
The defendant further testified that the next day, he went to Alberta Black's house to get some money, after which he called Kim Gaspar and told her that he was coming to Martha's Vineyard to get away from everything that was going on. When he arrived, Gaspar picked him up at the ferry terminal. At some point, Barbara Adams called the defendant and told him that David Allen had killed Sonia Shurtliff and then committed suicide. Later, Michelle Freitas paged him and told him that the police were looking for him and wanted to talk to him because they were interviewing everybody who lived in the neighborhood. On Sunday, the defendant called the Fall River police station and told them that he had nothing to hide and would come talk to them on Monday. The defendant testified that he called India Rose to meet her at the beach and Gaspar drove him to the beach. Gaspar became upset when Rose hugged the defendant and told him he could not stay with her anymore. The defendant then went with Rose to a motel. When Rose asked him what was wrong, he stated that police were looking to question him in a murder but that he didn't kill anybody.
The defendant testified that the next day, he returned to Fall River and met Freitas at his cousin's house. The defendant told Freitas that she knew he had been with her all night and asked her if she thought he had killed anyone, to which she responded, "No." The defendant and Freitas then went to the office of Attorney Christopher Long, who called police and stated that they would come in for questioning. Long advised the defendant not to talk to police and stated that he was a suspect because he knew the victims and was at their apartment on a regular basis and on the day before the murders. The defendant further testified that several weeks later, he was arrested along with his cousin's boyfriend for shoplifting. The police asked him if he knew anything about the murders and he stated that he did not but would talk to them just to show that he had nothing to hide. After he talked to police, they stated that they had no reason to think he was involved and let him go, after which he was bailed out on the shoplifting charge.
The defendant testified that Freitas was interrogated several times by police who asked her why she was with a black guy and told her she should stay with her own kind. Police also asked her why she was helping the defendant, to which she responded that the defendant didn't do anything. The defendant talked to police several more times and then Detective Castro called him and stated that he wanted to meet in front of the defendant's house to talk. When police arrived, they arrested him. The defendant testified that while in jail, he was in contact with Julius Adams who told him not to worry because he would be able to prove his innocence. Finally, the defendant stated that he did not kill Shurtliff and Allen.
On cross-examination, the defendant denied that during the drug raid on the Adams' apartment, he knocked on the door and asked Detective Donnelly, "What's going on here? These are my people." He further denied that he had moved his drugs to his cousin's house while the raid was still in progress. The defendant denied that he was upset that Julius Adams, his supplier of drugs, had been raided. He stated that he could find plenty of other suppliers in Fall River and could continue dealing drugs. The defendant stated that he and Adams had been selling drugs to Shurtliff and Allen until April, when he became their sole supplier. He admitted that when Adams returned to the apartment after being released on bail, Adams stated that Shurtliff and Allen were the informers, but he denied that anyone had stated that something had to be done about the people who had given information. The defendant admitted that Adams had stated that Shurtliff needed to know what it's like to lose something, but opined that Adams was referring to reporting her drug use to DSS so that the children would be taken away. The defendant denied that Adams had ever stated, "Let it go, it's over." or "Don't do anything."
The defendant admitted that Adams had accused him of providing information and that he believed Adams no longer trusted him. He testified that after going to the drug store with Adams and Sims, he went to his cousin's house. He stated that he did not recall using the bathroom after he returned to his apartment. He denied that he prayed before he and Freitas went to sleep, and further denied that he told her that he killed two people. The defendant testified that when he went to Martha's Vineyard the next day he did not tell Freitas where he was going because he was going to be with another woman. He denied instructing Freitas to tell the lawyer and police that he returned home at 11:00 p.m. and was with her all night. He denied that he ever told Kimberly Gaspar and India Rose that he had killed two people. The defendant denied that he was upset that police interrogated Freitas. He admitted calling the police station but denied telling Castro not to talk to her, explaining that he was upset because police were asking her why she was with a black man.
The defendant admitted that when he spoke to police on June 27 following his shoplifting arrest, he gave the police the names of several other possible suspects. However, he denied that he offered these names in order to divert police attention from himself. The defendant denied knowing Alvin Patterson, who lived across the hall from the victims. He admitted that he knew Lorraine Hamilton but denied that he bought a gun from her. He stated that he knew Tonya Oliver but denied seeing her outside 101 Baker Street at 12:30 a.m. on June 14, 1996. He further denied that he ever went by the name of Marcus. The defendant admitted telling Detective Castro when he was arrested that police had the wrong man and that he knew who did it but was going to wait until the day of trial to tell. Finally, the defendant admitted that he was found guilty in 1992 of possession of a firearm. There was no redirect or recross-examination of the defendant, nor did the jury have any questions for the defendant.
In his closing argument, defense counsel noted the importance of the jury's task and the profound impact it would have on the rest of the defendant's life. He emphasized that the Commonwealth bore the burden of proof to establish the defendant's guilt beyond a reasonable doubt. Counsel emphasized that Julius Adams had a motive to harm Shurtliff and Allen because of the drug raid and the criminal charges they brought against Adams and his wife after the fight with Shurtliff. Counsel noted that the defendant was a small time dealer without a motive for killing the victims. In addition, counsel emphasized the inconsistencies in Freitas' story to police and suggested that she implicated the defendant out of fear of Adams. Counsel emphasized the failure of police to seriously investigate suspects other than the defendant who had drug-related motives for harming the victims. He noted that Tatiana Allen, the victims' daughter, identified several people in the apartment at the time of the killings, but did not name the defendant. Counsel attacked the credibility of Alvin Patterson based on his criminal record and his inconsistent stories to police. In addition, he attacked Adams' credibility in claiming that he saw blood on the defendant's hand, noting that Willie Smith did not observe any blood. Counsel further emphasized the lack of any physical evidence tying the defendant to the crime scene, the failure of police to have the blood on the knife typed and the defense's inability to have the scrapings from the scissors tested. Finally, he again emphasized the high standard of proof beyond a reasonable doubt.
During their deliberations, the jury asked to review or rehear the defendant's testimony.
An audiotape of the defendant's testimony was played for the jury. On December 19, 1998, the jury found the defendant guilty of first degree murder, by deliberate premeditation and extreme atrocity or cruelty, on both indictments. The defendant was then sentenced to two life sentences, without possibility of parole, to run concurrently.
DISCUSSION
A motion for a new trial may be granted, within the judge's discretion, if it appears that justice may not have been done. Mass.R.Crim.P. 30(b); Commonwealth v. Moore, 408 Mass. 117, 125 (1990);Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).
I. THE PERJURY PROBLEM
The defendant contends that his Fifth, Sixth and Fourteenth Amendment rights were violated by counsel's invocation, in the middle of trial, of Massachusetts Rule of Professional Conduct 3.3(e), and this court's application of that rule to require the defendant to testify in a narrative fashion and to preclude defense counsel from arguing the defendant's testimony to the jury.
On December 16, 1998, after the Commonwealth had rested, defense counsel and the prosecutor approached the bench, at which time Attorney O'Boy stated that he had concerns about participating in a fraud on the court. Mr. O'Boy stated that he could not reveal more without breaching the attorney-client privilege but wanted to put his client on the stand, ask him his name, and let him tell his story to the jury. At that point, this court recessed so that counsel and the court could review the relevant rule, S.J.C. Rule of Professional Responsibility 3:07, Rule 3.3, Candor Toward the Tribunal. Rule 3.3(e) provides in relevant part:
In a criminal case, defense counsel who knows that the defendant, the client, intends to testify falsely may not aid the client in constructing false testimony, and has a duty strongly to discourage the client from testifying falsely, advising that such a course is unlawful, will have substantial adverse consequences, and should not be followed. . . . If a criminal trial has commenced and the lawyer discovers the client intends to testify falsely at trial, the lawyer need not file a motion to withdraw from the case if the lawyer reasonably believes that seeking to withdraw will prejudice the client. If during the client's testimony or after the client has testified, the lawyer knows that the client has testified falsely, the lawyer shall call upon the client to rectify the false testimony and, if the client refuses or is unable to do so, the lawyer shall not reveal the false testimony to the tribunal. In no event may the lawyer examine the client in such a manner as to elicit any testimony from the client the lawyer knows to be false, and the lawyer shall not argue the probative value of the false testimony in closing argument or in any other proceedings, including appeals.
When the sidebar again convened, with all parties looking at Rule 3.3(e), Attorney O'Boy stated that he did not wish to withdraw his representation, as it would prejudice the defendant. Mr. O'Boy assured the court that he had tried to dissuade the defendant from testifying falsely. The court and Attorney O'Boy then discussed the procedures to be followed during the defendant's testimony. This court instructed Mr. O'Boy to remain standing during the defendant's narrative testimony and to take objections to cross-examination one step at a time, as appropriate, keeping in mind that he could not assist the defendant in presenting perjured testimony. Accordingly, the defendant took the stand and testified in a narrative fashion, and defense counsel did not argue the defendant's testimony in closing argument.
Standard of Knowledge Required to Invoke Rule 3.3(e)
The defendant first contends that defense counsel lacked a constitutionally sufficient basis for invoking Rule 3.3(e). The rule on its face applies when counsel "knows" that the defendant intends to commit perjury. Although Rule 3.3 does not define the term "knows," the terminology section of the ABA Model Rules, on which Massachusetts Rule 3.3 is based, states that the term "knows" "denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances." The defendant argues that the requisite standard of knowledge should be knowledge beyond a reasonable doubt, while the Commonwealth argues for a lesser standard. Courts grappling with this issue have recognized the serious consequences of invoking a rule of professional conduct comparable to Rule 3.3(e). First, such a rule requires counsel to judge the defendant's truthfulness, without the many safeguards inherent in the adversary system, thus infringing on the role of the jury as fact finder. See Nix v. Whiteside, 475 U.S. 157, 189 (1986) (Blackmun, J., concurring);United States v. Long, 857 F.2d 436, 445 (8th Cir. 1988), cert. den., 502 U.S. 828 (1991). In addition, the rule results in a disclosure of the client's confidential communications to the court: the fact, if not the details, of the suspected perjury. "When an attorney unnecessarily discloses the confidences of his client, he creates a chilling effect which inhibits the mutual trust and independence necessary to effective representation." United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977). Finally, application of the rule typically compromises the defendant's right to assistance of counsel to the limited extent of precluding counsel from directly examining the defendant and arguing the defendant's perjurious testimony to the jury. See, e.g., S.J.C. Rule 3:07, Mass. R. Prof. C. 3.3(e).
This is to be distinguished from Rule 3.3(c), which provides generally that a lawyer may refuse to offer evidence that he or she "reasonably believes" to be false.
Sections (a) through (d) of Massachusetts Rule 3.3 are nearly identical to sections (a) through (d) of ABA Model Rule 3.3. The Massachusetts Rule adds to the Model Rule section (e), which specifically deals with the question of perjury in a criminal case.
Accordingly, in order to protect the defendant's constitutional rights, it is clear that in invoking a rule of professional conduct such as Rule 3.3(e), an attorney may not act on mere conjecture, unsubstantiated opinion, or personal belief in the defendant's guilt. See United States ex rel Wilcox v. Johnson, 555 F.2d at 122; Frey v.State, 509 N.W.2d 261, 263 (N.D. 1993); Maddox v. State, 613 S.W.2d 275, 283 (Tex.App.-Ct. 1981). Moreover, a mere inconsistency in the defendant's story is not a sufficient basis on which to conclude that the defendant will commit perjury. See People v. Schultheis, 638 P.2d 8, 11 (Col. 1981); Johnson v. United States, 404 A.2d 162, 164 (D.C.Ct.App. 1979); Commonwealth v. Alderman, 437 A.2d 36, 39 (Pa.Super. 1981). "Every change in a defendant's story should not be viewed as a fabrication."Commonwealth v. Alderman, 437 A.2d at 39 (noting that a defendant may give inconsistent accounts because of an error of memory or to protect someone else). See also Nix v. Whiteside, 475 U.S. at 190-191 (Stevens, J., concurring); United States v. Shonubi, 998 F.2d 84, 88 (2d Cir. 1995) (noting that a defendant may give inaccurate testimony due to confusion, mistake or faulty memory).
At least one court has determined that in order to invoke a rule of professional conduct comparable to Rule 3.3(e), the attorney must have knowledge beyond a reasonable doubt that the defendant is going to commit perjury. See Shockley v. State, 565 A.2d 1373, 1379-1380 (Del. 1989). See also Commonwealth v. Alderman, 437 A.2d at 39 (implicitly adopting a beyond a reasonable doubt standard). Compare Nix v. Whiteside, 475 U.S. at 189 (Blackmun, J., concurring) (opining that counsel should invoke ethical rules concerning perjury in only the rarest of cases). These courts have opined that this high standard of knowledge is necessary to allow the attorney to represent the client zealously. See Shockley v.State, 565 A.2d at 1379. Nonetheless, this court believes that such a standard is unworkable, as it will be all but impossible, particularly in the crucible of a trial where the evidence is often conflicting and counsel is under enormous stress, for counsel to ever know beyond a reasonable doubt that a defendant's proposed testimony is false.
Several courts have adopted the lesser but still demanding requirement that counsel have a "firm factual basis" for concluding that the defendant will commit perjury before invoking a rule comparable to Rule 3.3(e). See United States ex rel Wilcox v. Johnson, 555 F.2d at 122;U.S. v. Long, 857 F.2d at 445. See also State v. James, 739 P.2d 1161, 1169 (Wash.App. 1987) (requiring that counsel have a "firm basis" for belief that defendant will testify falsely). Compare People v. Bartee, 566 N.E.2d 855, 857 (Ill.App.), cert. den., 502 U.S. 1014 (1991) (rejecting the "firm factual basis" standard and requiring only a good faith determination by counsel that the defendant will commit perjury). This court is persuaded that the firm factual basis standard is sufficiently rigorous to protect the defendant against an unwarranted disclosure of confidential communications and the impact on the defendant's constitutional rights because of the application of the Rule to the conduct of the trial.
This court rejects the defendant's argument that defense counsel was required to undertake an independent investigation of the facts of the case before concluding that the defendant's proposed testimony was perjurious. While this court agrees that a mere inconsistency in a defendant's story is not a sufficient basis on which to conclude that the defendant will commit perjury, characterizing the defendant's statements in the present case as involving a mere inconsistency is misleading. According to an affidavit by Attorney O'Boy, the defendant first stated that he did not kill the victims, but later stated that he did kill the victims. Thus, defense counsel had before him an admission of guilt by his client. Moreover, Mr. O'Boy states in his affidavit that the evidence provided by the Commonwealth in discovery and presented at trial supported the defendant's statement that he was the killer. Under these circumstances, counsel had a firm factual basis for concluding that the defendant's intended testimony that he did not kill the victims was false without conducting an independent investigation of the facts. Compare People v. Schultheis, 638 P.2d at 11 (stating that counsel's belief of impending perjury must be based on independent investigation of the evidence or upon distinct statements by the client supporting that belief); State v. Lloyd, 429 A.2d 244, 250 (Md.Ct.App.), rev. den., 291 Md. 778 (1981) (approving counsel's decision not to call the defendant to testify because of intended perjury, where the defendant told counsel he committed the crime and counsel was convinced he was telling the truth in making such an admission); Commonwealth v. Jermyn, 620 A.2d 1128, 1130-1131 (Pa. 1993), cert. den., 510 U.S. 1049 (1994) (concluding that it was proper for counsel to use a narrative form of testimony where the defendant had confessed to him); Commonwealth v.Alderman, 437 A.2d at 39 (finding that counsel knew beyond a reasonable doubt that proposed alibi testimony was perjury, even though he did not independently interview the supposed alibi witnesses, because the story was implausible and the change in the defendant's story could not be explained as an error of memory or by the fact that the defendant had been trying to protect someone). See also Thornton v. United States, 357 A.2d 429, 438 (D.C.Ct.App.), cert. den., 429 U.S. 1024 (1976) (finding no ineffective assistance of counsel where the attorney "felt, based on his trial preparation, that the eleventh-hour change in appellant's story would result in his client's testifying falsely," the government's evidence was strong and included a victim identification, and the defendant's claim of alibi was "transparent"). Thus, this court concludes that defense counsel in the present case had a sufficient basis for invoking Rule 3.3(e) and that invocation was consistent with the defendant's constitutional rights.
Actual Conflict of Interest
The defendant next contends that counsel's invocation of Rule 3.3(e) created an actual conflict of interest between himself and counsel, depriving him of effective assistance of counsel and mandating a new trial under Article 12 of the Declaration of Rights. The defendant in a criminal case is entitled to the untrammeled and unimpaired assistance of counsel free of any conflict of interest and unrestrained by commitments to others. Commonwealth v. Martinez, 425 Mass. 382, 388 (1997);Commonwealth v. Walter, 396 Mass. 549, 554 (1986). An actual conflict of interest arises where the independent professional judgment of trial counsel is impaired, either by his own interests or by the interests of another client. Commonwealth v. Croken, 432 Mass. 266, 272 (2000);Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). An actual conflict of interest requires reversal of a defendant's conviction under Article 12 without the necessity of showing that the conflict resulted in any prejudice. Commonwealth v. Croken, 432 Mass. at 272; Commonwealth v.Martinez, 425 Mass. at 388. The defendant bears the burden of demonstrating, without relying on mere speculation or conjecture, the existence of an actual conflict of interest. Commonwealth v. Epsom, 399 Mass. 254, 262 (1987); Commonwealth v. Russo, 49 Mass. App. Ct. 579, 585 (2000).
It cannot be denied that where defense counsel learns that his client intends to commit perjury, he is faced with a difficult situation as a result of competing constitutional and ethical obligations. "The attorney is faced simultaneously with a duty to represent his client effectively, a duty to protect his client's right to testify, a duty not to disclose confidential communications of his client, a duty to reveal fraud on the court, and a duty not to knowingly use perjured testimony (as well as the possibility of criminal liability for perjury)." Maddox v. State, 813 S.W.2d at 280 (footnotes omitted). But see Sanborn v.State, 474 So.2d 309, 312 (Fla.App. 3 Dist. 1985) (stating in the context of client perjury that counsel's duty to the defendant and duty to the legal system are the same: to zealously represent the client within the bounds of the law). Indeed, Rule 3.3(e) is a recognition of and an attempt to reconcile the conflict between counsel's obligations to the defendant and his obligations to the court.
Nonetheless, where the conflicting interests between a defendant and counsel are the product of a defendant's intent to commit perjury, the Supreme Court has rejected the characterization of this situation as an actual conflict of interest requiring a new trial without a showing of prejudice. See Nix v. Whiteside, 475 U.S. at 176. "If a 'conflict' between a client's proposal and counsel's ethical obligation gives rise to a presumption that counsel's assistance was prejudicially ineffective, every guilty criminal's conviction would be suspect if the defendant had sought to obtain an acquittal by illegal means." Id. Even assuming that the proper invocation of Rule 3.3(e) gives rise to a potential conflict of interest between the defendant and counsel, a defendant who shows a potential conflict of interest will have his conviction reversed only upon proof of actual prejudice, measured by the same standard employed in the typical ineffective assistance of counsel analysis. Commonwealth v. Croken, 432 Mass. at 272; Commonwealth v.Walter, 396 Mass. 549, 559 (1986). Thus, this court concludes that the defendant is not entitled to a new trial unless he can at least demonstrate that defense counsel's conflicting loyalties under Rule 3.3(e) materially prejudiced the defendant's representation. CompareNix v. Whiteside, 475 U.S. at 175-176 (requiring a showing of prejudice in connection with a defendant's claim that his attorney improperly dissuaded him from committing perjury).
The defendant's arguments with respect to prejudice are discussedinfra.
The defendant further argues that the Sixth Amendment and Article 12 required this court to conduct a colloquy to ensure that he understood the consequences of the conflict of interest posed by the perjury issue. See, e.g., Witherspoon v. United States, 557 A.2d 587, 592-593 (D.C.App. 1989) (concluding that where counsel sought to withdraw due to potential perjury, the court should have conducted an inquiry into the conflict of interest and whether counsel's ability to represent the defendant effectively in other aspects of the case was impaired, and the defendant should have been given the opportunity to waive conflict-free representation). The court's obligation to ensure a fair and impartial trial includes the duty to ensure that the defendant is adequately informed of the perils of representation by counsel with divided loyalties. Commonwealth v. Davis, 376 Mass. 777, 784-785 (1978);Commonwealth v. Bonefont, 35 Mass. App. Ct. 54, 55 n. 2 (1993). The preferable practice is to hold a colloquy to establish that the defendant understands the conflict of interest and voluntarily, knowingly and intelligently waives his constitutional right to counsel free from conflicts of interest. Commonwealth v. Goldman, 395 Mass. 495, 507, cert. den., 474 U.S. 906 (1985); Commonwealth v. Bonefont, 35 Mass. App. Ct. at 55 n. 2. This court agrees that when defense counsel invokes Rule 3.3(e), it may well be preferable for the court to ensure that the defendant understands and desires to exercise his constitutional right to testify, that he understands counsel's ethical obligation not to assist in the presentation of perjury, and further understands that if he chooses to testify, counsel will not assist in examining him or argue his testimony to the jury. Thus, in effect, the court could assure a voluntary and knowing limited waiver of the assistance of counsel with respect to the defendant's own testimony. See, e.g., People v. Guzman, 755 P.2d 917, 935 (Cal. 1988), cert. den., 493 U.S. 960 (1989); Maddox v. State, 813 S.W.2d at 277.
Admittedly, this court did not conduct such a colloquy in the present case. Rule 3.3(e) makes no mention of such a procedure, and defense counsel did not suggest it at the time of the trial. Nonetheless, upon review of the record, this court is satisfied that the defendant understood his options and the consequences of his decision to testify in his own defense. At the beginning of trial, prior to impanelment of the jury, this court advised the defendant that he had an absolute right to testify and that he also had an absolute right not to testify. The court further advised the defendant:
These rights belong to you and to no one else. That is no one[, n]ot your lawyer or anybody else can either force you to testify or prevent you from testifying. In deciding whether or not to testify, you will of course consult with your lawyer and consider carefully his advice. However, the final decision[,] to testify or not to testify[,] is yours and yours alone.
This court then asked the defendant if he understood, and the defendant responded that he did. The court asked the defendant if he had any questions about his rights with respect to testifying, and the defendant stated that he did not. Further, the affidavit of Attorney O'Boy establishes that when the perjury problem arose, he attempted to dissuade the defendant from testifying falsely, and repeatedly advised the defendant that he was not permitted to assist in presenting perjured testimony to the court, and would not be able to elicit or argue such testimony. Thus, the record strongly suggests that the defendant understood that by exercising his absolute right to testify and, in the judgment of his counsel, committing perjury, he would give up his right to counseled direct examination and argument of his testimony to the jury. Accordingly, this court is satisfied that the defendant made a voluntary and knowing waiver of the assistance of counsel with respect to his own testimony only, such that the failure to conduct a colloquy did not deprive him of his constitutional rights.
Defendant's Presence at Sidebar Concerning Perjury
The defendant further contends that even if Rule 3.3(e) was properly invoked, his absence from the bench conference at which it was determined that he must testify in narrative form violated his constitutional rights. The right to be present at all critical stages of criminal proceedings derives from the confrontation clause of the Sixth Amendment, the due process clause of the Fifth and Fourteenth Amendments, and Article 12 of the Declaration of Rights. Commonwealth v. L'Abbe, 421 Mass. 262, 268 (1995); Commonwealth v. Owens, 414 Mass. 595, 602 (1993); Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 632, rev. den., — N.E.2d — (2000). A stage of the proceedings is critical whenever the defendant's presence has a reasonably substantial relation to the fullness of his opportunity to defend against the charges against him. Kentucky v. Stincer, 482 U.S. 730, 745 (1987); United States v. Gagnon, 470 U.S. 522, 526 (1985). See also Commonwealth v.Angiulo, 415 Mass. 502, 530 (1993) (stating that the defendant has a right to be present whenever the judge conducts an inquiry about a consequential matter during trial); Reporter's Notes to Mass.R.Crim.P. 18 (stating that the defendant's presence is required whenever fairness demands that he be present because his substantial rights are at stake).
At the very beginning of trial, this court informed the parties that the defendant was welcome to attend and any all side bars during the trial. Defense counsel did not bring the defendant to the sidebar at which the perjury issue was discussed, nor did the defendant request to be present. This court acknowledges that it is unrealistic to expect the defendant to invoke his right to be present when counsel leaves him behind at the defense table.
In the present case, the Commonwealth contends that the Rule 3.3(e) sidebar was not a critical stage of the proceedings because it merely addressed the procedural question of how defense counsel was to conduct himself during the defendant's testimony. Compare State v.Fosnight, 679 P.2d 174, 180-181 (Kan. 1984) (concluding that a bench conference at which counsel moved to withdraw because of intended client perjury involved only a matter of law governed by ethical standards and was not a stage of trial requiring the defendant's presence). See alsoLowery v. Cardwell, 575 F.2d 727, 729 (9th Cir. 1978) (concluding that the defendant's presence was not required at an in-chambers conference where counsel moved to withdraw without stating a reason, immediately following the defendant's perjurious testimony, and the court summarily denied the motion). It is well established that the judge may conduct minor administrative formalities outside the presence of the defendant.Commonwealth v. Angiulo, 415 Mass. at 530; Commonwealth v. MacDonald, 368 Mass. 395, 399 n. 3 (1975). See e.g., Commonwealth v. Boblin, 25 Mass. App. Ct. 410, 415, rev. den., 402 Mass. 1102 (1985) (concluding that the defendant's presence was not required when the judge discussed appropriate dress with two jurors); Commonwealth v. Davila, 17 Mass. App. Ct. 511, 514, rev. den., 392 Mass. 1104 (1984) (concluding that the defendant's presence was not required during roll call of the jury). The Commonwealth further cites Massachusetts Rule of Criminal Procedure 18(a)(3), which provides that a defendant need not be present at any proceeding where evidence is not to be taken. Although evidence was not taken at the sidebar at issue in this case, this court views that proceeding as involving more than a mere administrative or procedural matter. The invocation of Rule 3.3(e) resulted in this court's restricting the defendant's right to have counseled direct examination and to have his testimony argued to the jury, consequential matters involving substantial rights. Moreover, as discussed supra, it may have been preferable to conduct a colloquy to ensure that the defendant understood counsel's ethical obligation not to assist in the presentation of perjury, and understood that if he chose to testify, counsel would not assist in examining him or argue his testimony to the jury. The defendant's presence at the sidebar where these matters were discussed and resolved has a reasonably substantial relation to the fullness of his opportunity to defend against the charges against him. See Kentucky v.Stincer, 482 U.S. at 745; United States v. Gagnon, 470 U.S. at 526. Accordingly, this court concludes that the Rule 3.3(e) sidebar in this case was a critical stage of the proceedings at which the defendant was entitled to be present. See State v. Layton, 432 S.E.2d 740, 758-761 (W.Va. 1993) (concluding that a bench conference at which counsel requested permission to present the defendant's testimony in narrative fashion was a critical stage of the proceedings at which the defendant was entitled to be present). Compare Commonwealth v. Wolfe, 447 A.2d 305, 310 (Pa. Super 1982) (noting that during a meeting at which counsel sought to withdraw, "counsel and client were in an adversarial position. There was no one in chambers to speak for or to concern himself with the defendant," and concluding that it was error for the court to summarily deny a continuance for the defendant to obtain private counsel after his attorney was allowed to withdraw mid-trial and a replacement was appointed).
It should be noted that Rule 3.3(e) does not set forth a specific procedure to be followed with respect to the problem of prospective perjury by the defendant and thus does not address the issue of the defendant's presence.
Nonetheless, exclusion from a critical stage of the proceedings does not mandate a new trial if the Commonwealth can demonstrate that the defendant's absence did not prejudice the defendant and was harmless beyond a reasonable doubt. Commonwealth v. Owens, 414 Mass. at 603;Commonwealth v. Bacigalupo, 49 Mass. App. Ct. at 634. The defendant's exclusion should be considered in relation to the whole record. United States v. Gagnon, 470 U.S. at 526-527; Commonwealth v. Owens, 414 Mass. at 606. The defendant contends that if he had been present, he could have convinced the court that his intended testimony was not false. The defendant argues that this court should have conducted an evidentiary hearing at which it probed the factual basis for defense counsel's belief that the defendant's testimony would be perjurious, accepted evidence from the defendant about the truth of his proposed testimony, and made a factual determination on the issue of perjury. Rule 3.3(e) does not establish a specific procedure to be followed with respect to the issue of prospective perjury by a criminal defendant. However, this court rejects the procedure suggested by the defendant as neither required nor appropriate. Conducting a mini-trial on the perjury issue would only serve to exacerbate the conflict of interest between attorney and client and would necessitate the disclosure of client confidences in contravention of Rule 3.3(e). The rule states that when an attorney withdraws prior to trial based on a criminal defendant's intent to commit perjury, "[d]isclosure of privileged or prejudicial information shall be made only to the extent necessary to effect the withdrawal" and disclosure must occur to a judge other than the judge who will preside over the trial. Further, the rule states that where counsel learns after the fact that the defendant has testified falsely, "the lawyer shall not reveal the false testimony to the tribunal." Rule 3.3(e) clearly establishes a framework which provides maximum protection to client confidences. It would be inconsistent with this framework to allow disclosure of client confidences in the context of an evidentiary hearing undertaken in the case of anticipated perjury. Rule 3.3(e) embodies a policy that defense counsel, as an officer of the court, can be trusted to exercise his judgment in an appropriate and sober manner to determine whether his client intends to commit perjury. This court rejects the proposition that the trial judge should undermine this policy and risk revelation of client confidences by conducting a mini-trial on the merits of counsel's belief in the falsity of the defendant's proposed testimony. See People v. Bartee, 566 N.E.2d 855, 857 (Ill.App.), cert. den., 502 U.S. 1014 (1991) (concluding that the court is not required to hold an evidentiary hearing before ordering a defendant to testify in narrative form). But see Witherspoon v. United States: 557 A.2d 587, 592-593 (D.C.App. 1989) (Ferren, J., concurring) (suggesting that in the case of a motion to withdraw due to anticipated client perjury, a judge other than the trial judge should conduct a hearing into the perjury issue, at which the defendant should be provided with independent counsel to advise him in making a decision as to whether to waive his Fifth Amendment rights and respond to counsel's accusations of perjury). Thus, even if the defendant had been present at the sidebar at which the perjury issue was discussed, he would not have been entitled to a full hearing at which he could have convinced this court that Attorney O'Boy's belief that he intended to perjure himself was mistaken.
The defendant further argues that if he had been present at sidebar, he would have requested that Mr. O'Boy be removed as counsel and that new counsel be appointed. However, this court would not have permitted Attorney O'Boy to withdraw in the middle of a complicated trial and would not have appointed successor counsel. See Commonwealth v. Chavis, 415 Mass. 703, 711 (1993); Commonwealth v. Quinones, 414 Mass. 423, 436 (1993) (stating that the denial of a motion to discharge counsel and appoint new counsel during trial is within the judge's sound discretion).
Appointment of new counsel would simply have shifted the ethical dilemma from one attorney to another. In addition, it would be entirely impracticable, likely prejudicial, and unworkable to bring in a new lawyer in the middle of a lengthy trial in a murder charge. SeeCommonwealth v. Mascitti, 534 A.2d 524, 528-529 (Pa.Super. 1987) (concluding that it was not an abuse of discretion for the court to require a defendant who intended to commit perjury to testify in a narrative form rather than declaring a mistrial or allowing the withdrawal of counsel and appointment of new counsel). Moreover, the defendant was not entitled to new counsel who might fail to recognize the problem of fabricated testimony or who might be unethical enough to present it. See Sanborn v. State, 474 So.2d 309, 314 (Fla.App. 1985). Thus, the defendant was not prejudiced by his absence at the sidebar.
Finally, the defendant argues that he would have asked this court for permission to conduct his own closing argument or to make an unsworn statement. This court would not have exercised its discretion to allow the defendant to make his own closing argument, which would no doubt have been less effective than the forceful closing made by defense counsel in this case. Moreover, the court would not have reversed its earlier ruling in this case that the defendant, who was competent to take the stand in his own defense, was not entitled to make an unsworn statement to the jury. See Commonwealth v. Rodriquez, 364 Mass. 87, 96 (1973) (stating that the matter of an unsworn statement lies in the discretion of the trial judge). Thus, because this court would have exercised its discretion in the same manner even if the defendant had been present, the defendant's absence at the sidebar where the perjury issue was discussed did not prejudice him. See Commonwealth v. Bacigalupo, 49 Mass. App. Ct. at 634-635. Compare State v. Layton, 432 S.E.2d 740, 758-761 (W.Va. 1993) (concluding that the defendant's absence from sidebar was harmless error because he had been present at an earlier conference where the perjury problem was discussed and the court's decision did not change as a result of the second conference).
Consequences of Rule 3.3(e)
Finally, the defendant argues that even assuming that Rule 3.3 (e) was properly invoked and, despite his absence at sidebar, applied during his trial, the requirement that defense counsel not conduct a direct examination of the defendant and not argue his testimony in closing argument deprived him of due process and the effective assistance of counsel. Foremost, it is axiomatic that a defendant's Sixth Amendment right to counsel does not include the right to the participation of counsel in committing perjury. Nix v. Whitehead, 475 U.S. at 173. Although counsel has a constitutional obligation to represent zealously the criminal defendant with all his skill and energy, he also has ethical obligations to the court, embodied in the Rules of Professional Responsibility.
Courts considering the constitutional implications of a defendant's narrative testimony have overwhelmingly concluded that requiring the defendant to testify in narrative form strikes an appropriate balance between preserving the defendant's right to testify on his own behalf and his right to counsel and counsel's ethical obligation to the court, and does not deprive the defendant of effective assistance of counsel so long as the defendant is otherwise vigorously defended. See, e.g.,
People v. Guzman, 755 P.2d 917, 932-935 (Cal. 1988), cert. den., 488 U.S. 1050 (1989); Thornton v. United States, 357 A.2d 429, 438 (D.C.Ct.App.), cert. den., 429 U.S. 1024 (1976); Sanborn v. State, 474 So.2d 309, 313 (Fla.App. 3 Dist. 1985); State v. Waggoner, 864 P.2d 162, 167-168 (Idaho App. 1993); People v. Lowery, 366 N.E.2d 155, 157-158 (Ill.App.Ct. 1977); Commonwealth v. Jermyn, 620 A.2d 1128, 1131 (Pa. 1993), cert. den., 510 U.S. 1049 (1994); Maddox v. State, 613 S.W.2d 275, 284 (Tex.Ct.App. 1981); State v. Layton, 432 S.E.2d 740, 755 (W.Va. 1993). Compare United States Ex Rel. Wilcox v. Johnson, 555 F.2d 115, 120 (3d Cir. 1977); United States v. Scott, 909 F.2d 488, 493 (11th Cir. 1990); Johnson v. United States, 404 A.2d 162, 165 (D.C.App. 1977) (concluding that it is unconstitutional for the court, when faced with potential perjury by a defendant, to require the defendant to proceed pro se for the remainder of the trial if he chooses to testify falsely, because the defendant cannot be forced to barter his constitutional right to counsel for the right to testify). But see United States v. Curtis, 742 F.2d 1070, 1075 (7th Cir. 1984), cert. den., 475 U.S. 1064 (1986); Stephenson v. State, 424 S.E.2d 816, 818 (Ga.App. 1992) (concluding that counsel's refusal to call the defendant to testify based on intended perjury did not violate the defendant's constitutional rights). In the present case, counsel's representation of the defendant was as a whole zealous and included vigorous cross-examination of witnesses, and an effective closing argument.
Although the record reveals that defense counsel made no objections during the Commonwealth's cross-examination of the defendant, the prosecutor's questioning was conducted in a proper manner.
Further, this court disagrees with the defendant's assertion that his testifying in a narrative form without guidance through counsel's questioning signaled to the jury that his own counsel disbelieved his testimony. During trial, at a sidebar immediately following closing argument, this court noted that the narrative testimony went smoothly and that the jury did not display any alarm or surprise at the defendant's method of testifying. Indeed, the jury may well have been of a mind that it was ordinary for a defendant, as opposed to other witnesses, to testify in that manner. See People v. Guzman, 755 P.2d at 935;Reynolds v. State, 625 N.E.2d 1319, 1320 (Ind.App. 3rd Dist. 1993) (noting that the jury likely believed that the defendant wished to tell his story unhampered by the traditional question and answer format). It is doubtful that jurors are familiar with the ethical rules, such that they would recognize the use of the narrative form of testimony as indicative of possible perjury by the defendant. Compare Lowery v.Cardwell, 575 F.2d 727, 731 (9th Cir. 1978) (concluding that defense counsel's motion to withdraw violated the defendant's due process rights where the judge served as fact finder and counsel communicated to the judge his belief that the defendant was lying by moving to withdraw immediately after the defendant's testimony that she did not kill the victim); Butler v. United States, 414 A.2d 844, 850 (D.C.App. 1980) (concluding that the defendant was deprived of due process where his intent to commit perjury was disclosed to the judge at a bench trial). As noted by one court, "[w]hatever prejudice results to the defendant in the eyes of the jury occurs more from defendant's choosing to expose himself to the rigors of cross-examination than from the form in which the direct examination is conducted." People v. Lowery, 366 N.E.2d 155, 157-158 (Ill.App.Ct. 1977).
The defendant further argues that he was unconstitutionally denied the right to have counsel argue his testimony to the jury through closing argument. It is well established that the Sixth Amendment and Article 12 right to counsel includes a defendant's right to make a closing argument. Commonwealth v. Marvin, 417 Mass. 291, 292 (1994). Closing argument for the defense is a basic element of the adversary factfinding process and no aspect of the system could be more important than the opportunity to finally marshal the evidence for each side. Commonwealth v. Farley, 432 Mass. 153, 157 (2000); Commonwealth v. Triplett, 398 Mass. 561, 569 (1986). Thus, a summation which leaves a client denuded of a defense constitutes ineffective assistance of counsel.Commonwealth v. Triplett, 398 Mass. at 569. In the present case, defense counsel vigorously argued to the jury various insufficiencies in the government's case, including the lack of physical evidence tying the defendant to the crime and the failure of police to properly investigate other suspects and to perform forensic testing of certain evidence. Counsel further assailed the credibility of the Commonwealth's witnesses, noted several other people with motives for killing the victims, and repeatedly emphasized the high standard of proof beyond a reasonable doubt. Counsel's failure to argue the defendant's testimony, as mandated by Rule 3.3(e), did not denude the defendant of a defense in this case.
The record reveals that at a sidebar immediately following closing argument, this court noted that defense counsel had made an effective closing argument.
Further, the defendant's reliance on Commonwealth v. Cutty, 47 Mass. App. Ct. 671 (1999), is misplaced. In that case, the Appeals Court concluded that a defendant's Article 12 right to assistance of counsel and to present a defense was violated by the trial court's order preventing counsel from arguing the defendant's alibi in closing argument as a sanction for failing to comply with the provisions of Mass.R.Crim.P. 14 concerning notice of alibi. Id. at 675-676. In so concluding, the court noted that the trial court could not properly exclude the defendant's alibi testimony, the defendant's credibility was fundamental in the case, and that by depriving defense counsel of the ability to endorse the credibility of the defendant's alibi, the judge wrongfully excluded argument that it was proper for counsel to make. Id. The present case involves an entirely different situation, one in which defense counsel in good faith concluded that the defendant would testify falsely. As discussed, supra, it is clear that a defendant's Sixth Amendment right to counsel does not include the right to the participation of counsel in committing perjury. See Nix v. Whiteside, 475 U.S. at 173. Moreover, Rule 3.3(e) specifically prohibits defense counsel from participating in a fraud on the court by endorsing the defendant's credibility by arguing perjured testimony to the jury in closing argument. Thus, denying counsel the ability to argue the defendant's testimony in closing argument did not violate the defendant's constitutional rights.
Finally, this court notes that the invocation of Rule 3.3(e) in this case does not implicate due process concerns with respect to sentencing. At least one court has stated that disclosure of a defendant's intended perjury to the court creates "significant risks of unfair prejudice" to the defendant since the court will sentence him and may take perjury into account in assessing the appropriate punishment. See United States v.Long, 857 F.2d at 446. Compare Maddox v. State, 813 S.W.2d at 284 (finding no ineffective assistance of counsel by virtue of a motion to withdraw where there was no risk of an enhanced sentence based on perjury because the jury assessed punishment). In the present case, although this court sentenced the defendant, there was no discretion involved in assessing the punishment insofar as the defendant was convicted of first degree murder. Accordingly, the defendant's due process rights were not violated by disclosure of the intended perjury to the court. CompareCommonwealth v. Wilson, 381 Mass. 90, 121 (1980) (rejecting the argument that counsel's voluntary disclosure that the defendant might perjure himself violated due process, where there was no evidence that the sentence imposed was the result of bias caused by knowledge of the possible perjury, and the judge stated his reasons for the sentence, which were appropriate, on the record). This court thus concludes that application of Rule 3.3(e) in the present case did not deprive the defendant of his constitutional rights.
It should be noted that as requested by the defense, this court imposed the two life sentences concurrently rather than consecutively.
II. REMAINING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
The defendant further contends that he was deprived of effective assistance of counsel due to his attorney's inadequate preparation for trial. In determining whether the defendant has received ineffective assistance of counsel under the Sixth Amendment and Article 12 of the Declaration of Rights, the court must examine whether there has been serious incompetency, inefficiency, or inattention of counsel; conduct falling measurably below that which might be expected from an ordinary fallible lawyer. Commonwealth v. Roberts, 423 Mass. 17, 20 (1996);Commonwealth v. Lanoue, 409 Mass. 1, 4 (1990); Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If incompetency is found, the court must then determine whether it has deprived the defendant of an otherwise available, substantial ground of defense. Id. The court will not reverse a conviction unless the defendant demonstrates that better work might have accomplished something material for the defense. Commonwealth v.Whitman, 430 Mass. 746, 757 (2000); Commonwealth v. Street, 388 Mass. 281, 285 (1983).
The defendant first contends that trial counsel was ineffective in failing to investigate and call as witnesses the victims' daughters, Tatiana and Kia Allen. In an affidavit, Attorney O'Boy states that he did not interview the girls because the defendant had admitted killing the victims. The failure to investigate and develop evidence which could have raised a reasonable doubt in the minds of the jurors constitutes ineffective assistance of counsel where that failure effectively leaves the defendant denuded of a defense. See Commonwealth v. Farley, 432 Mass. 153, 156-157 (2000) (finding ineffective assistance of counsel where counsel failed to interview a man implicated by the defendant or investigate semen and blood evidence which supported the defendant's assertion that the man was present at the scene and was the true killer). A claim of failure to interview a witness may sound impressive in the abstract, but it cannot establish ineffective assistance of counsel when the person's account is otherwise fairly known to defense counsel. Commonwealth v. Conley, 43 Mass. App. Ct. 385, 393 (1997). In the present case, police had interviewed Tatiana and Kia Allen on several occasions, and defense counsel had access to the police reports. Thus, his failure to independently interview the girls was not manifestly unreasonable. Compare Commonwealth v. White, 409 Mass. 266, 274 (1991).
Moreover, even if counsel's conduct in not interviewing Tatiana and Kia could be deemed to fall below that to be expected of the ordinary, fallible lawyer, there was no resulting prejudice to the defendant's case, since the girls' testimony would not have provided a substantial ground of defense. See Commonwealth v. White, 409 Mass. at 275-276. The defendant contends that Tatiana's and Kia's testimony was crucial because the girls were eyewitnesses to the crime, they knew him and would have testified that he was not the killer. The defendant further emphasizes that Tatiana would identify one of the killers as "Mike," which would strengthen the inference that one Michael Burdette was the killer. In support of this assertion, the defendant offers the grand jury testimony of Trooper Dugan and a police report. These materials reveal that on June 14, Tatiana, who was five years old, told police that she and Kia, age three, went to bed at 8:00 p.m. the night before, heard nothing all night, and discovered their parents' bodies the next morning. Kia told police that she could not wake up her parents. When asked about weapons in the apartment, Kia said she had moved a gun from her father's foot and placed it under a bed. However, police never found a gun under the bed, and Kia's fingerprints were never found on the gun.
The jury heard testimony that police learned that Michael Burdette, who lived at Baker Street, was supplying the victims with drugs, and that they owed him $2,200. Roy Carreiro told police that on July 1, he was sitting on the porch with Derek Duchaine and Burdette discussing the murders at 101 Baker Street, when Duchaine became agitated, pulled a gun from his waistband and started waving it around. Burdette tried to quiet Duchaine down, telling him not to talk so loud about it.
In an interview by Family Services worker Patricia Connelly on July 23, Tatiana stated that she heard someone yell, "I'm going to kill you." four times. She said she observed individuals named Johnny, Mike and Stephanie attack her parents with a knife and a B.B. gun. She claimed that she saw this from her bed, which police determined was physically impossible. She then stated that she was in various locations in the apartment when she made her observations. Tatiana stated that Stephanie looked at her and asked, "Can I kill you Tati?" When asked again who killed her parents, Tatiana stated that it was Mike, Bobby and Michelle. She then said that these were not their real names. Tatiana stated that both men were white and that Johnny had bugs on his face. She described Mike as having grey hair and bumps on his face and described Johnny as having red bumps on his face and legs.
Tatiana was again interviewed by Connelly on August 8, at which time she identified the killers as Jay, Bobby and Stephanie. Through their investigation, police learned that Jay Gendreau and Bobby Houston had been in the apartment that night playing cards with the victims, but left around 7:00 p.m. Thereafter, Trooper Dugan interviewed Tatiana and asked if she had really seen what happened that night. Tatiana admitted that she did not see anything and had been asleep. Dugan formed the opinion that in fact, both girls were sleeping during the murders.
Given the young age of the children and the implausibility of certain aspects of Tatiana's story, it is questionable whether the girls would have been deemed competent to testify. Further, in light of the glaring inconsistencies in Tatiana's account, it would have been reasonable for counsel to conclude that her identification of the killers was not credible and would not be viewed by a jury as credible. To the extent that Tatiana's testimony would have inculpated Mike Burdette, the jury learned of her identification of "Mike" as one of the killers through the testimony of Trooper Dugan. Finally, counsel's fear, articulated in his affidavit, that live testimony by the girls would increase sympathy for the victims has some merit. For all of these reasons, the decision not to call Tatiana as a witness at trial was not manifestly unreasonable and did not constitute ineffective assistance of counsel. See Commonwealth v. White, 409 Mass. at 275-276; Commonwealth v. Anderson, 398 Mass. 838, 843-844 (1986). Compare Commonwealth v. Hill, 432 Mass. 704, 718-719 (2000) (concluding that failure to call a witness who would have contradicted the commonwealth's entire theory of the case constituted ineffective assistance of counsel).
The defendant next contends that counsel was ineffective in not interviewing Tonya Oliver prior to her testimony. In his affidavit, the defendant asserts that by interviewing Oliver, counsel would have learned that Oliver knew him and knew that his name was not Marcus, and thus could have elicited testimony from her at trial that it was not the defendant she saw the night of the murders near the victims' apartment. Assuming that Oliver would have so testified, and that counsel's failure to interview her prior to trial fell below the conduct to be expected of the ordinary, fallible lawyer, there was no resulting prejudice to the defendant's case, since Oliver's testimony would not have provided a substantial ground of defense. See Commonwealth v. White, 409 Mass. at 275-276. Oliver's description of the individual she saw in front of 91 Baker Street around the time of the killings was consistent with the defendant's appearance, but did not establish that he was the individual she saw. Oliver was not asked to, and in fact did not, identify the defendant as the man she saw that night, nor was there any evidence that the defendant went by the alias "Marcus." Given all the evidence presented at trial, including admissions by the defendant to numerous people, testimony linking the defendant to a gun consistent with the one which misfired at the crime scene, and the defendant's own testimony that he was around the neighborhood within a few hours of the commission of the crime, potential testimony by Oliver that the man she saw was not the defendant would not have accomplished something material for the defense.
The defendant has not presented an affidavit from Oliver in connection with the present motion for a new trial.
The defendant further argues that counsel was ineffective in failing to object "when the prosecutor argued in closing that Ms. Oliver identified the person in the street as the defendant, a gross misstatement of the evidence to the defendant's detriment." However, the transcript reveals that the prosecutor argued only that Oliver observed a black male, similar in appearance to the defendant, "at or about the same time that Julius Adams sees Curtis Mitchell rounding the corner, coming up his front porch." The prosecutor did not argue that Oliver identified the defendant as the person she saw.
Finally, the defendant contends that counsel was ineffective for failing to interview Michael Burdette, an alternate suspect in the killings, who was investigated but never interviewed by police. The short answer to this assertion is that even assuming that the failure to conduct such an interview fell measurably below the conduct which might be expected from an ordinary fallible lawyer, the defendant simply has not demonstrated that the failure to investigate and interview Burdette deprived him of an otherwise available, substantial ground of defense. Compare Commonwealth v. Farley, 432 Mass. at 156-157; Commonwealth v.Haggerty, 400 Mass. 437, 441 (1987). Accordingly, the defendant was not deprived of the effective assistance of counsel and is not entitled to a new trial.
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant's motion for a new trial be DENIED .
_____________________________ Raymond J. Brassard Justice of the Superior Court