Commonwealth v. Mitchell

705 N.E.2d 263, 428 Mass. 852, 1999 Mass. LEXIS 33
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 9, 1999
StatusPublished
Cited by29 cases

This text of 705 N.E.2d 263 (Commonwealth v. Mitchell) 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. Mitchell, 705 N.E.2d 263, 428 Mass. 852, 1999 Mass. LEXIS 33 (Mass. 1999).

Opinion

Marshall, J.

The defendant was convicted of murder in the first degree on the theory of deliberate premeditation. While the [853]*853defendant’s appeal has been pending, he moved for a new trial claiming that his trial counsel was ineffective in failing to impeach the Commonwealth’s three main witnesses with evidence of their prior convictions and charges pending against them. The motion was remanded to the trial judge, who denied it. The defendant also appeals from the denial of that motion.

In addition to his claim of ineffective assistance of counsel, the defendant claims he was denied a fair trial by improper statements made by the Commonwealth in closing argument. He also asks that, pursuant to G. L. c. 278, § 33E, we either order a new trial or reduce the verdict to manslaughter. We affirm the conviction, and decline the defendant’s request to exercise our statutory power.

1. The Commonwealth presented evidence from which the jury could have found the following. On November 5, 1990, the defendant, a member of the street gang known as the Big Head Boys, shot the victim, Bryant Tarpley, because the victim sold drugs for someone other than the Big Head Boys on their turf. The medical examiner who performed the autopsy on the victim testified that the victim, who was seventeen years old, died as a result of two gunshot wounds, one to the head and one to the neck. The Commonwealth presented the testimony of three individuals, also members of the Big Head Boys: Tyrone Dickerson, Steven Niles, and Arthur Dickerson. Their testimony was the foundation of the Commonwealth’s case.1 Each witness testified that the defendant had admitted to him, or in his presence, that he had killed the victim. They also testified to circumstantial facts suggesting that the defendant was the killer.

There was evidence that Craig Holiday (whose whereabouts at the time of trial were not known) was the leader of the Big Head Boys, and that the defendant was his “first lieutenant.” There was evidence that the defendant was acting on instructions from Holiday when he shot the victim.2

2. Ineffective assistance of counsel. The defendant challenges [854]*854the conduct of his trial counsel for failing to use evidence of prior convictions and pending charges to impeach the Commonwealth’s three key witnesses, the members of the Big Head Boys.3 The defendant raised this same claim of ineffective assistance of counsel in a motion for a new trial that was denied by the trial judge. He appeals that decision and argues, in addition, that ineffective assistance of his trial counsel created a substantial likelihood of a miscarriage of justice warranting relief under G. L. c. 278, § 33E. Because our standard of review under that statute is more favorable to the defendant than is the constitutional standard for determining the ineffectiveness of counsel, Commonwealth v. Hardy, 426 Mass. 725, 730 (1998), we consider “whether there was an error in the course of the trial [by defense counsel] and, if there was, whether that error was likely to have influenced the jury’s conclusion,” id. at 730, quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992). We consider the defendant’s claim “even if the alleged error on the part of trial counsel does not constitute conduct falling ‘measurably below’ that of ‘an ordinary fallible lawyer.’ ” Commonwealth v. MacKenzie, 413 Mass. 498, 517 (1992).

The judge found that trial counsel was “fully aware” of the criminal histories of the Commonwealth’s witnesses (certified copies of the convictions had been obtained by trial counsel before the trial) and that she had made a “tactical” decision not to use their criminal records to impeach them. Cf. Com[855]*855monwealth v. Daigle, 379 Mass. 541, 543 (1980) (defense counsel did not know specifics of witnesses’ prior criminal records or indictments pending against them and did not seek to obtain such records). We see no tactical advantage to the defendant in counsel’s decision not to impeach the Commonwealth’s witnesses with available evidence of their prior convictions and charges pending against them. We nevertheless reach the same conclusion as did the judge that the failure to use the available evidence does not amount to ineffective assistance of counsel in this case.

In Daigle, supra, we concluded that, where defense counsel did not produce criminal records of the defendant’s accomplices in order to impeach them, but did establish that the accomplice-witnesses were “seasoned criminals” through their own admissions and the circumstances of the robbery, defense counsel’s approach was not manifestly unreasonable. Id. at 544. For much the same reasons as we explained in that case, we conclude that counsel’s approach in this case did not create a substantial likelihood of a miscarriage of justice. The judge observed, and based on our own review of the record we concur in his judgment, that the defendant’s trial counsel brought out frequently and clearly on cross-examination of the Commonwealth’s witnesses, “¿te criminal character of all three of these individuals,” and “clearly demonstrated to the jury that each one was a seasoned criminal.”4 The judge reasoned ¿iat nothing further of any significance would have been gained if counsel had introduced the records of the witnesses’ convictions. See Daigle, supra at 545. Recently, in Commonwealth v. Carmona, ante 268, 275 (1998), we agreed with the conclusions of the motion judge who, as here, was also the trial judge, that the impeachment value of criminal records of the Commonwealth’s [856]*856witnesses would have been minimal where the evidence established that the defendant and witnesses were operating in a criminal environment. Id. In this case the evidence demonstrated, at least as strongly as the evidence in the Carmona case, that the Commonwealth’s witnesses had criminal backgrounds and were engaged in criminal activities. This jury surely knew that the three witnesses were armed drug dealers, each of whom had experience with, and extensive knowledge of the criminal justice system. Trial counsel made that point in her opening statement and again forcefully in her closing argument to the jury. The jury were well aware that the witnesses not only were drug dealers, but that Niles and Arthur Dickerson had been incarcerated on conviction of serious offenses as armed criminals. In addition, the Commonwealth proved that statements to the police two years after the killing from the three gang members had been obtained without the others knowing the content of their respective statements, i.e., they had not conferred before they gave their statements to the police. Such powerful and incriminating testimony would not have been undercut by impeachment of the witnesses with their prior convictions.

The trial judge did not expressly address the defendant’s claim that his trial counsel failed to impeach Tyrone Dickerson and Arthur Dickerson with evidence of criminal charges and probation violation matters that were pending against them. While pending charges and probation violations may be used to show that a witness is biased in favor of the Commonwealth, counsel’s failure to elicit such evidence for that purpose does not necessarily constitute reversible error.

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Bluebook (online)
705 N.E.2d 263, 428 Mass. 852, 1999 Mass. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mitchell-mass-1999.