Commonwealth v. Leitzsey

659 N.E.2d 1168, 421 Mass. 694, 1996 Mass. LEXIS 11
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 12, 1996
StatusPublished
Cited by12 cases

This text of 659 N.E.2d 1168 (Commonwealth v. Leitzsey) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Leitzsey, 659 N.E.2d 1168, 421 Mass. 694, 1996 Mass. LEXIS 11 (Mass. 1996).

Opinion

Greaney, J.

A jury in the Superior Court convicted the defendant, Annette Leitzsey, of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty, and larceny in a building, G. L. c. 266, § 20 (1994 ed.).1 The defendant was tried with a codefendant, Herman J. Kempson, who was acquitted by the jury on a charge that he was an accessory after the fact of murder. Represented by new counsel on appeal, the defendant argues that she should be tried again because her trial counsel furnished ineffective assistance in three respects: (1) by failing to move to dismiss the indictments; (2) by failing to object to allegedly improper remarks made by the prosecutor in his closing argument; and (3) by not requesting a jury instruction on the Commonwealth’s alleged failure to conduct an adequate investigation. We decide these claims under the standard set forth in G. L. c. 278, § 33E (1994 ed.), and do not exclusively focus on the adequacy of trial counsel’s performance. See Commonwealth v. Wright, 411 Mass. 678, 682 (1992) (statutory standard of review under § 33E is more favorable to defendant than is constitutional standard for determining ineffective assistance of counsel). “In reviewing each claim of the ineffectiveness of trial counsel ... we shall consider whether there was an error in the course of the [pretrial proceedings or the] trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury’s conclusion” (footnote omitted). Id. We discern no error by trial counsel, and, consequently, do not reach the second step in this inquiry. The defendant further argues that the judge erred in failing to dismiss two jury venires which did not contain any black persons. We find no merit in this claim. Finally, we conclude that there is no other basis to exercise our authority under G. L. c. 278, § 33E, to order [696]*696a new trial or to reduce the murder conviction to a lesser degree of guilt. Accordingly, we affirm the defendant’s convictions.

We need not describe the evidence in great detail. Viewing that evidence in the light most favorable to the Commonwealth, see Commonwealth v. Grant, 418 Mass. 76, 77 (1994), the jury would have been warranted in finding the following facts. The victim was a fifty-two year old man who, as a result of childhood polio, was physically disabled. The defendant, who had been using cocaine, went to the victim’s Pittsfield apartment to “pick up” a videocassette recorder (VCR). A woman who lived with the victim saw the defendant emerge from the victim’s bedroom with bloody linens and a steak knife which was covered with dried blood. The defendant told this witness that there was blood all over and that “[she] had to beat [the victim].” The witness then called Kempson to the apartment and the defendant had him look at the victim. The defendant told Kempson that she “had to stick” the victim, and Kempson saw her holding a knife and wiping it off with a white cloth. The defendant was later seen washing off a steak knife with bleach. The defendant took a VCR from the victim’s apartment with her which she eventually sold, using the money to purchase cocaine. The victim was found naked and dead, having received a total of twenty stab wounds throughout his scalp, neck, chest, upper back, and right shoulder. The medical examiner indicated that “significant force” had been used in the stabbing and that any of several wounds could have “caused death by themselves.” When questioned by the police, the defendant gave contradictory statements, first denying any knowledge of the murder, then stating that she had been at the victim’s apartment when Kempson, the codefendant, started to stab the victim.

The defendant testified in her own behalf. She stated that the victim had wanted to give her the VCR. When she went to get it, she and the victim became involved in a discussion during which he called her a “black bitch.” Nonetheless, the victim disconnected the VCR and gave it to the defendant. [697]*697The defendant then left the victim’s apartment. She returned sometime later, to find the victim arguing about drugs with Kempson.2 The defendant indicated that Kempson had knocked the victim to the floor and stabbed him with “a poker.”3 Disregarding the victim’s pleas for help, the defendant “ran out.”

1. The grand jury heard evidence from fourteen witnesses (four police officers, the medical examiner, and nine laypersons). In addition to eliciting direct testimony from the witnesses, the prosecutor who was presenting the case to the grand jury read statements that a number of the witnesses had given to the police officers investigating the case. These statements were either written out by the witnesses or were oral statements that had been transcribed by the police. The prosecutor asked each witness to whom a statement was read whether the prosecutor’s reading was accurate, and each witness was afforded an opportunity to add to, or delete information from, the statement as read. At the conclusion of the proceeding, the grand jury voted the indictments for murder and larceny in a building, on which the defendant was tried.

The defendant argues that her trial counsel erred by failing. to file a motion to dismiss the indictments. She maintains that the prosecutor’s method of presenting a large part of the evidence to the grand jury through the reading of statements to witnesses, supplemented by questions and answers, was improper, invaded the province of the grand jury, and provided insufficient evidence to support the indictments. We reject these contentions.

The prosecutor’s presentation of evidence through the use of written and transcribed statements of the witnesses was permissible. This method did not constitute the presentation of incompetent evidence by the prosecutor who was not a [698]*698sworn witness, as the defendant alleges. Each witness validated his or her statement under oath before the grand jury who had the opportunity to see and evaluate the reliability of the evidence and the credibility of the witness. Even if we were to assume that the method of questioning chosen by the prosecutor amounted to presentation of the case on the basis of hearsay evidence (which we do not), this would not warrant dismissal of the indictments. See Commonwealth v. Bishop, 416 Mass. 169, 173-174 (1993); Mass. R. Crim. P. 4 (c), 378 Mass. 849 (1979). There was ample evidence heard by the grand jury to identify the defendant and to establish probable cause to arrest her for larceny and murder. See Commonwealth v. Mattos, 404 Mass. 672, 673 (1989), and cases cited. The grand jury, therefore, had a sufficient and proper basis to warrant their return of the indictments.

The defendant also argues that her trial counsel should have made a motion to dismiss the indictments because of testimony before the grand jury by an investigating detective which wrongly attributed to the defendant an admission that she had stabbed the victim. In his trial testimony, the detective indicated that the defendant had not made the alleged admission, and that the defendant had in fact told him that another person had stabbed the victim.

There is nothing to show that either the prosecutor or the detective who made the statement knowingly or recklessly presented any false testimony to the grand jury. See Commonwealth v. Kelcourse, 404 Mass. 466, 468-469 (1989).

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Bluebook (online)
659 N.E.2d 1168, 421 Mass. 694, 1996 Mass. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-leitzsey-mass-1996.