Commonwealth v. Lanoue

563 N.E.2d 1367, 409 Mass. 1, 1990 Mass. LEXIS 528

• Court: Massachusetts Supreme Judicial Court
• Decided: December 20, 1990
• Status: Published

Opinions

Nolan, J.

This is the third time this case has come before us. On November 4, 1980, a jury convicted the defendant of murder in the first degree. The defendant appealed from his conviction to this court. On direct review, we exercised our power under G. L. c. 278, § 33E, and reduced the verdict to murder in the second degree. Commonwealth v. Lanoue, 392 Mass. 583 ((Lanoue I). On May 29, 1986, the defendant moved for a new trial based on a claim of ineffective assistance of counsel. The Superior Court judge denied the motion without a hearing and the defendant appealed. In October of 1987, this court reversed the order and remanded the case to the Superior Court for a hearing on the merits. Commonwealth v. Lanoue, 400 Mass. 1007 (1987) (Lanoue II). After a hearing, the Superior Court judge denied the motion for a new trial. The defendant appealed from this decision to the Appeals Court and we have transferred the case here on our own motion.

The facts of this case are set forth in Lanoue I, supra at 584-585. We shall repeat those facts as needed for our analysis. In this appeal, the defendant has requested a new trial based on ineffective assistance of counsel because his attorney failed to raise the following issues at trial or on appeal: (1) whether the prosecutor’s refusal to plea bargain based on alleged personal bias violated his constitutional due process and equal protection rights; (2) whether the warrantless search of the defendant’s apartment violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution; (3) whether the interrogation of the defendant at the police station after his arrest violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution; and (4) whether expert testimony should have been admitted on the effects of alcohol and drugs as they related to the defendant’s culpability, his voluntariness in making spontaneous statements, and his ability to make a voluntary, knowing, and intelligent waiver of his Miranda rights. In the alternative, the defendant seeks a further reduction in his conviction from murder in the second degree to manslaughter.

We note at the outset that we are not required to review issues which could have been raised by the defendant in previous appeals and were not. However, since the defendant was represented by the same attorney at the trial and on his initial appeal, he is not precluded from seeking review because of the failure of his first attorney to raise the claim of ineffective assistance of counsel on his prior appeal. It would be unrealistic to expect Lanoue’s first attorney to have raised a claim calling his own competence into question. In fairness, we therefore proceed to examine the issues raised but only in so far as they relate to the claim of ineffective assistance of counsel.

In determining whether there is merit to the claim of ineffective assistance of counsel in a criminal case, this court must examine the circumstances of the case to discover whether there has been “serious incompetency, inefficiency, or inattention of counsel — behavior . . . falling measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Even if incompetency is found, the court must then determine whether it has deprived the defendant of an “otherwise available, substantial ground of defence.” Id.

We hold that counsel’s performance fell well within the realm of what may be expected from an ordinary fallible attorney. There is no merit to the defendant’s claim of ineffective assistance of counsel and the motion for a new trial was appropriately denied. We also decline to reduce further the defendant’s conviction to manslaughter. Since the defendant has alleged ineffective assistance of counsel, our inquiry into each of the allegations is limited to the attorney’s conduct in failing to raise the claim. We make no ruling as to the claims as if they had been brought independently and not under the rubric of “ineffective assistance of counsel.”

The defendant claims that trial counsel’s failure to raise the issue of prosecutorial bias is ground for a new trial. We find no merit to this claim. The attorney was well within acceptable standards even without bringing this claim. The prosecutor who was handling the case informed the judge that his supervisor, a first assistant district attorney, had told him not to offer a manslaughter plea to the defendant. The defendant asserts that the supervising first assistant district attorney’s refusal to allow a manslaughter plea was a discriminatory application of the plea bargaining process violative of the defendant’s constitutional rights. The defendant accuses the first assistant district attorney of being motivated by personal bias, prejudice, and animosity. The accusation is based on the fact that the first assistant’s parents lived near the murder scene and that the first assistant’s mother disapproved of the defendant.¹ The allegation of prosecutorial bias is completely without merit. There is no evidence whatsoever that the first assistant district attorney had any personal bias against the defendant. Where a claim of improper conduct is alleged against a public official, “[e]very presumption must be indulged in as to the integrity and impartiality” of that official. Pacella v. Metropolitan Dist. Comm’n, 339 Mass. 338, 347 (1959), quoting Stockus v. Boston Hous. Auth., 304 Mass. 507, 511 (1939). All that the defendant has offered are allegations of bias on the part of the first assistant’s mother. The defendant presented no evidence of bias by the first assistant district attorney himself, and any claim of bias through his mother is tenuous at best.

The defendant further claims that the warrantless search of his apartment after his arrest violated the Fourth and Fourteenth Amendments. The defendant contends it was ineffective assistance of counsel for his attorney not to move to suppress the evidence seized without a warrant. We disagree. The police were called to the apartment and let in by the defendant’s mother to assist a bleeding, unconscious woman. They arrived to find the defendant with blood on his arms and then, in plain view, saw bloodstained walls. They searched the apartment for the injured woman and while searching noticed many bloodstained items. They found the woman’s body, arrested the defendant, and escorted him from the scene. The police later returned to seize the items they had seen in plain view during their search for the injured woman. They had no warrant.

The defendant claims that his attorney was ineffective by failing to move to suppress the seized items. Assuming, for the sake of argument only, that the attorney’s behavior did fall measurably below that of an ordinary fallible attorney, the defendant’s claim would still be without merit. As we stated in Commonwealth v. Saferian, supra at 96, even if an inadequacy is found, the court must then determine whether it has deprived the defendant of an “otherwise available, substantial ground of defence.” The attorney did not deprive the defendant of a substantial ground of defense by failing to file a motion. Even if the physical evidence had been suppressed, the officers could testify in court about what they saw while validly on the premises. The police officers were validly on the premises to search for an injured woman under exigent circumstances. Commonwealth v. Young, 382 Mass. 448, 454-460 (1981). The officers would have been able to testify as to what they had seen even if the evidence had been suppressed due to the warrantless search which occurred later. Therefore, the suppression of the evidence would not have been a substantial defense sufficient to support a claim of ineffective assistance of counsel.

The defendant also maintains that he tried to communicate with his attorney by telephone from the police station. He claims that the police interrogated him even after his attempt to communicate with an attorney, and that this interrogation violated his rights under the Fifth and Fourteenth Amendments. The defendant contends that counsel’s failure to raise this issue either at trial or on appeal amounted to ineffective assistance of counsel. Once again, we find no merit to the defendant’s claim. The attorney moved to suppress the statements based on intoxication. By choosing a more promising basis to bring the motion, the attorney’s conduct was not substandard for failing to include the more dubious ground. Nowhere in the record does it indicate that the police knew the nature of the defendant’s call. The record does indicate the defendant’s willingness to speak after receiving Miranda warnings.

Lastly, the defendant contends that counsel’s failure to offer expert medical testimony on the defendant’s long history of drug and alcohol abuse, as it pertained to whether his waiver was voluntary, knowing, and intelligent, resulted in a miscarriage of justice and ineffective assistance of counsel. This is not so. At trial, defense counsel filed a motion to suppress statements made by the defendant on arrest and during interrogation on the grounds that the effects of drugs and alcohol on the defendant at the time of arrest and interrogation had made his statements involuntary.

We addressed the effects of the defendant’s intoxication and substance abuse on his statements in Lanoue I, supra at 588-589. We came to the conclusion that there had been no error in admitting the defendant’s statements due to involuntariness. We come to the identical conclusion today, six years later. There was considerable evidence presented at the trial as to the defendant’s condition on his arrest and interrogation. That evidence is discussed in our 1984 decision. We find it unpersuasive that counsel’s failure to call an additional witness, an expert, on this issue resulted in grounds for a new trial. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) (ineffectiveness not established by simple showing that defense counsel did not call an additional witness to bolster the case). No new trial is warranted.

We likewise find the defendant’s claim that the conviction should be reduced to manslaughter meritless. Assuming the request is properly before us as a procedural matter, there was no evidence of provocation presented to warrant such a reduction. The victim was said to have uttered “no . . . money, no fun,” after which the murder occurred. Mere words are not enough to warrant provocation sufficient to reduce a conviction to manslaughter. Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975).

Furthermore, the defendant bases his argument for a further reduction to manslaughter on Commonwealth v. Grey, 399 Mass. 469 (1987), in which evidence of the defendant’s mental impairment was relevant and admissible as to the issue of malice. Id. at 470-471. That case was decided in 1987, several years after the defendant’s initial trial. We determined in Commonwealth v. Bray, 407 Mass. 296 (1990), that the Grey decision was not to be applied retroactively. Therefore, the defendant’s argument in reliance on the Grey case is misplaced.

For the reasons set forth above, we affirm the judge’s ruling on the defendant’s motion for a new trial. The defendant has failed to show that counsel’s conduct was substandard or that failure to allow the new trial would result in a miscarriage of justice. In addition, we shall not reduce the conviction from murder in the second degree to manslaughter.

So ordered.

1 The defendant points to actions by the first assistant’s mother which supposedly indicated her dislike of the defendant. First, he points to her action of allegedly crossing the street to avoid walking past him. Secondly, the defendant allegedly overheard her saying that the neighborhood had gone down, from which he inferred she was referring to him.