Commonwealth v. Stirk

450 N.E.2d 1110, 16 Mass. App. Ct. 280, 1983 Mass. App. LEXIS 1388

• Court: Massachusetts Appeals Court
• Decided: June 30, 1983
• Status: Published

Opinions

Hale, C.J.

The defendant has appealed from his conviction of murder in the second degree on an indictment charging murder. After the appeal was argued, we were of opinion that the principal issue in the case could not properly be decided unless specific findings of fact were to be made by the trial judge as to whether there was a genuine conflict of interest between the defendant and a Mr. Sandini, a member of the Bar, who had given the defendant legal advice just prior to his admission that he killed the victim. See Commmonwealth v. Hodge, 386 Mass. 165, 167-168 (1982). We remanded the case to the trial judge by an order of remand, the pertinent parts of which are set out in the margin.¹

The trial judge held a hearing at which the defendant called Mr. Sandini as a witness. The Commonwealth called three police officers. The judge then made comprehensive subsidiary and ultimate findings of fact which have been made a part of the record on appeal.

There was evidence at trial that on the morning of August 30, 1979, a body was found in a sand pit in Hudson. The victim’s trousers were down around his ankles. An autopsy revealed the cause of death to have been five stab wounds. After learning the identity of the victim, three police officers went to his apartment where they found some T-shirts stamped “Westboro State Hospital.” In the course of the ensuing investigation, the officers interviewed a David Friedman from whom, among other things, they received a description of the automobile which the victim had been seen to enter as a beat up old Chevrolet “with a lot of junk in the back.” That description fit a car which the officers knew belonged to Mr. Sandini. The police also knew Mr. Sandini and were aware that he knew the victim. They proceeded to Mr. Sandini’s home, arriving there sometime after 10 a.m. on August 31.² Mr. Sandini responded to the knock on the door and was told by Officer Sharon of the Marlborough police that Lieutenant Turner and Officer Donahue of the Hudson police and he were investigating a homicide and that they wanted to ask him some questions. They told Mr. Sandini that the victim had been seen getting into a motor vehicle similar to his in the early morning hours of August 30. At Mr. Sandini’s insistence, Miranda warnings were given to him, although Officer Sharon told him that he was not a suspect. Mr. Sandini then informed the officers that he had been asleep all of the night in question. At about this time the defendant walked into the room, and the officers recognized that the defendant, and not Mr. San-dini, fit the description they had received of the driver of the car. Miranda warnings were then given to the defendant and to Mr. Sandini at the same time. Both Mr. Sandini and Stirk answered questions willingly, although Mr. San-dini at that time was disturbed “because he felt he was a suspect, which Officer Sharon denied.”

The defendant told the police that he had been using Mr. Sandini’s car as his own vehicle needed repairs. He denied knowing the victim and then, after a reminder from Mr. Sandini, admitted that he did. He said that he could not sleep in the early morning hours of the thirtieth and had taken Mr. Sandini’s car to “get a snack.”

The defendant was then informed that the police had a witness they wanted to have look at him. He agreed but said that he had to go to a “job site” but would be back in time. While he was gone, the defendant had his hair cut. He later said he had done so because he was to march in the Labor Day parade.

On observing the defendant, the witness said that the defendant looked like the man he saw but that his hair looked different. Mr. Sandini was not present at this time.

Shortly after noon on the thirty-first, the defendant voluntarily went to the Marlborough police station for further questioning, where he was again given Miranda warnings. At about 2:00 p.m. he called Mr. Sandini to come to the station and to bring him some cigarettes. When Mr. Sandini arrived, he conferred privately with the defendant. The conference was interrupted for a short period of time as Mr. Sandini had not brought cigarettes and left to obtain them. Prior to this conference, the defendant, but not Mr. San-dini, was again given the Miranda warnings. After this conference the police questioned the defendant in Mr. San-dini’s presence, with none of the questions being directed to Mr. Sandini. He and the defendant were about to be excused when one of the officers mentioned getting a warrant to search Mr. Sandini’s automobile. Mr. Sandini said there was no need to get a warrant and gave them permission to search the car. The defendant also agreed to the search.

A blood stained shirt and a shirt marked “Westboro State Hospital” were found. As to the former, the defendant said that the blood stains were from a bleeding pimple on his back. When the latter shirt was produced, the defendant asked if he could confer with Mr. Sandini. They had a private discussion, after which Mr. Sandini asked if he could take the defendant home for a day or two so that he might talk to him some more. That request was denied, and the defendant was arrested. A further private conference was held between Mr. Sandini and the defendant, following which the defendant signed a Miranda rights document and then said, “I did it,” adding that he had acted in self-defense.

At trial, at which the defendant was represented by other counsel, the defendant admitted the killing but claimed he had acted in self-defense when the victim attacked him after the defendant had refused the victim’s homosexual advances.

1. The defendant claims that he was denied the right to the assistance of impartial counsel to “advise him in an unbiased manner.” He argues that since Mr. Sandini was a suspect in the homicide, he had a genuine conflict of interest with that of the defendant and that Mr. Sandini was not, therefore, in a position to give “unrestricted” advice and, further, that Mr. Sandini, as a suspect, had an interest in placing responsibility for the crime on the defendant. Mr. Sandini thus was not, the defendant argues, in a position to advise the defendant in an unbiased manner. That argument would warrant a new trial if it were based on a sound factual premise. However, the judge found that except for a short period of time during the initial stages of the investigation, Mr. Sandini was not a suspect and knew that he was not a suspect. The judge ultimately concluded “that there was no genuine conflict of interest between Sandini and Stirk at a time when he gave the defendant legal advice.” The judge’s findings, all of which were warranted by the evidence, thus remove the factual underpinnings from the defendant’s argument and for that reason the argument fails.

The defendant, makes a further argument in which he asserts as a part of the above claim that, because Mr. San-dini had been suspended from the practice of law at the time that he advised him, the defendant was denied the right to counsel. (Mr. Sandini testified that he had been suspended from the practice of law on March 29, 1979, for failing to pay his “annual dues” to the Board of Bar Overseers and that he was reinstated on October 30, 1979.) The defendant makes no argument that this in any way affected Mr. Sandini’s legal ability or his representation of the defendant. As the defendant makes no argument beyond a bare assertion, it does not rise to the level of appellate argument. Tobin v. Commissioner of Banks, 377 Mass. 909 (1979).

2. The Commonwealth did not call David Friedman as a witness, which gives rise to the defendant’s claim that he was denied his constitutional right to confront his accuser. There is nothing in the record to indicate that the defendant had any desire or need to have Friedman testify. The Commonwealth had no duty to call any particular witness. Commonwealth v. Sacco, 259 Mass. 128, 141 (1927). The defendant knew who Friedman was and could have called him to testify had he considered it desirable or necessary.

3. The defendant claims prosecutorial error in the closing argument, to which no objection was registered. The argument now complained of was not improper, and there is no risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

4. The defendant assigns as error the exclusion of proffered testimony of his mother that as a youngster the defendant had been subjected to a “homosexual assault.” He argues that the “testimony would have enabled the jury to determine whether the deceased’s homosexual assault upon the defendant was likely, in the circumstances of this case, to have provoked such a state of passion, anger, fear, fright or nervous excitement as would have eclipsed his capacity for reflection or restraint. The testimony would have been relevant to the defendant’s actual state of mind at the time he delivered the fatal wounds upon the deceased.” Assuming arguendo that the “assault” was in fact homosexual, the judge rightly deemed the offered testimony too remote. Moreover, in the absence of any tender of expected expert testimony as to the likelihood of an earlier assault’s having the effect contended, the evidence was irrelevant. See Commonwealth v. Trainor, 374 Mass. 796, 806 (1978); 6 Wigmore, Evidence § 1871 (Chadbourn rev. 1976).

5. Finally, the defendant claims that two phrases (“so, unless the evidence in the case leads you as jurors to a different, contrary conclusion” and “unless by the evidence of all the facts and circumstances it’s disproved in your minds” [the latter was once repeated]) in the judge’s instructions to the jury shifted the burden of proof of malice from the Commonwealth to him.³ Relying on Commonwealth v. Callahan, 380 Mass. 821, 822-826 (1980), and DeJoinville v. Commonwealth, 381 Mass. 246, 248-249 (1980), the defendant seeks to excuse the failure of trial counsel to object to the charge because the “constitutional theory upon which the defendant relies . . . was not sufficiently developed at the time of the instant trial.” He argues that the quoted phrases raise a “presumption of malice”, as opposed to permission for the jury to draw an inference of malice.

We note first that except for the instruction on presumption of innocence the word “presumption” does not appear in the judge’s charge. We also note that the judge and trial counsel appear to have been well aware that the judge’s charge “must not be phrased so as to establish a presumption in favor of the Commonwealth which the defendant must overcome.” Commonwealth v. Callahan, 380 Mass. at 825. At a conference with counsel held before arguments and charge, the judge stated that wherever the word “presumption” appeared in the defendant’s requests for instructions he would use “inference” in its place. The defendant’s counsel concurred. For the reasons stated in Callahan, id. at 824-826, the court and counsel were bound to be aware, as they obviously were, of the importance of the strictures involved in the use of the word “presumption.”

We have read the judge’s carefully crafted charge and have concluded that it could not have given the jury the impression that it relieved the Commonwealth of its burden of proof. In all probability that is the reason why defense counsel did not object.

Judgment affirmed.

1 “The case is remanded to the Superior Court, where the judge is to make detailed findings of fact, on the question whether there was a genuine conflict of interest, on the basis of evidence earlier heard by him and to be heard on a further hearing at which the parties may present further evidence, particularly with respect to whether Mr. Sandini knew or had been given reason to believe that he was not a suspect at a time when he gave the defendant legal advice.”

2 From this point, our summary is taken from the judge’s findings after remand.

3 The following is the context in which those phrases appear:

“As a general rule, it is reasonable to infer that a person ordinarily intends all the natural and probable consequences of his acts knowingly done or knowingly omitted to be done, so unless the evidence in the case leads you as jurors to a different, contrary conclusion the jury may draw the inference and find that the accused intends all the natural and probable consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act done or knowingly omitted to be done by the accused.”

“Where the killing is caused by the intentional use of a deadly weapon — a knife, a gun are deadly weapons — malice may be inferred unless by the evidence of all the facts and circumstances it’s disproved in your minds.”