Commonwealth v. Valentin, 470 Mass. 186 (2014)
In July 1991, Timothy Bond stole cocaine from Angel Ruidiaz, who was selling drugs for the defendant’s brother, Simon. Ruidiaz paid Simon for the stolen drugs, but Simon told Ruidiaz that he was “still going to get” Bond. Later that same month, while Bond was with a group of friends, including Kenneth Stokes, Simon and the defendant approached Bond from behind and shot him in the back of the head. Bond fell to the ground and Simon shot him again in the head. Stokes testified that the defendant next stomped on the victim’s head while making a profane death threat. Then the defendant and Simon fled on foot and, as they were running away, the defendant told Simon, “Man, put the gun away, the police are coming.”
At the trial, the defendant’s primary defense was an alibi, calling three witnesses to testify that he was playing dominoes elsewhere at the time of the shooting. The Commonwealth called four witnesses, including Stokes, who were at the shooting. All four of these witnesses testified that the defendant either “kicked” or “stomped” on the victim’s head after Simon fired the second shot. However, only Stokes testified that the defendant made a profane statement while he kicked or stomped on the victim’s head. On cross-examination, two witnesses acknowledged they did not tell the police shortly after the incident that they saw the defendant stomp on Bond. Stokes, though cross-examined, was not questioned about his failure to initially tell the police about the defendant’s statement. On the second day of jury deliberations, defendant’s trial counsel, Robinson, asked for the judge’s permission to have her law partner stand in for her. Although her partner had not worked on the case and had only discussed it with Robinson, the judge granted the request without seeking defendant’s consent to the substitution.
While substitute counsel was standing in, the jury asked to be, and was, reinstructed on joint venture and premeditation. Following the reinstruction, the judge assured substitute counsel that any objections that Robinson made in the main jury charge would be preserved and that he was not waiving any of these objections. That same day, the jury found the defendant guilty as a joint venturer in premeditated murder.
II. Procedural History
On May 15, 1992, defendant Pedro Valentin was convicted of murder in the first degree by reason of deliberate premeditation. The Supreme Judicial Court (“SJC”) affirmed his conviction in 1995. In January 2012 the defendant filed a motion for a new trial, which was denied on February 6, 2013, without a hearing. Later that same month the defendant filed a petition for leave to appeal under chapter 278, section 33E of the Massachusetts General Laws. On August 1, 2013, a single justice allowed the petition to address two of the issues presented.
III. Questions Presented
The SJC considered two questions: (1) whether the defendant’s trial counsel provided ineffective assistance by virtue of failing to impeach Stokes’s testimony regarding the defendant’s murder scene statement; and (2) whether the defendant was deprived of counsel as a result of his trial counsel’s partner standing in during jury deliberations.
IV. Reasoning and Analysis
(1) In reviewing an appeal from the denial of a motion for a new trial, which alleges errors grounded in the record before the court in its plenary review, the SJC reviews for a “substantial risk of a miscarriage of justice.” “A substantial risk of a miscarriage of justice exists when [there is] a ‘serious doubt whether the result of the trial might have been different had the error not been made.’” “Errors of this magnitude are extraordinary events and relief is seldom granted . . . . Such errors are particularly unlikely where, as here, the defendant’s conviction . . . has undergone the exacting scrutiny of plenary review under § 33E.”
A defendant’s right to counsel in a criminal case entails the right to “effective assistance of counsel.” In order to establish a claim of constitutional ineffectiveness of counsel, the defendant must show “that his attorney’s performance fell ‘below an objective standard of reasonableness’ such that there is a ‘probability sufficient to undermine confidence in the outcome.’” In cases where an attorney’s defense strategy proves unsuccessful, judicial examination of counsel’s performance should be highly deferential so as to avoid “the distorting effects of hindsight.”
For claims of ineffective assistance of counsel raised under both the Sixth Amendment to the U.S. Constitution and Article Twelve of the Declaration of Rights of the Massachusetts Constitution, the SJC is tasked with determining whether there has been a “serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available substantial ground of defence.” Although counsel’s failure to pursue an “obviously powerful form of impeachment” can rise to the level of unreasonableness such as to constitute ineffective assistance, the failure to impeach a witness does not necessarily, on its own, constitute ineffective assistance.
Here, counsel did extensively cross-examine and impeached Stokes based on a series of inconsistent statements. Thus, even though counsel did not extensively question Stokes about the defendant’s alleged statement, she did undermine the veracity of his entire testimony. Further, trial counsel’s decision not to impeach Stokes on this particular statement was a strategic one to avoid highlighting it. Thus, the Court found that this was not manifestly unreasonable.
However, even if it was unreasonable, the Court noted that this error did not lead to a substantial risk of a miscarriage of justice. That is because there was substantial additional evidence upon which the jury could have relied in determining that the defendant shared Simon’s intent to kill Bond. Finally, “[w]hether the defendant actually made the statement in question was not the linchpin of the defense.”
(2) In Massachusetts, jury deliberations are considered a critical stage of the proceedings when the jury communicates a request that is of legal significance. At this stage, assistance of counsel requires that a judge consult with counsel regarding the appropriate response to the jury’s request. The jury’s requested reinstruction was on joint venture and premeditation, two issues of legal significance in this case. Since this issue arose at a critical stage of the proceedings, it would be a structural error resulting in a new trial if the defendant was actually or constructively denied counsel. In cases of structural error, the defendant has a right to a new trial without a showing of prejudice.
The defendant claimed that the absence of his informed consent to substitute counsel during jury deliberations amounted to a structural error. “Structural errors are ones that render the ‘adversary process itself presumptively unreliable’ or that constitute ‘constitutional error[s] of the first magnitude’ that simply cannot be cured even if the error was ultimately harmless.” The Supreme Court has recognized that “[c]ircumstances of [this] magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” However, constructive denials of counsel rarely meet this order of magnitude.
Here, substitute counsel’s representation of the defendant for this brief period did not constitute structural error because substitute counsel was not fundamentally incapable of representing defendant during the brief period of representation. Substitute counsel did actively render assistance to the defendant by preserving objections to the challenged instructions by trial counsel. Thus, any error involved in permitting substitute counsel was not structural and therefore requires a showing of prejudice in order to warrant a new trial. However, even if defendant was not constructively denied counsel outright, he is still entitled to effective assistance of counsel.
Unlike constructive denial of counsel, however, a claim for ineffective assistance of counsel, if performance was substandard, requires the defendant to show prejudice and that better performance might have accomplished something material for the defense. In considering a claim for ineffective assistance of counsel, the court uses an objective standard to determine whether the conduct fell within a range of professionally reasonable judgments based upon the professional norms that existed at the time of representation.
The defendant claimed that he was prejudiced by substitute counsel’s failure to object to the “joint venture” reinstruction. Specifically, the defendant argued that substitute counsel’s failure to object to the judge’s omission of “not guilty” on the “joint venture” reinstruction was prejudicial. However, the jury was previously instructed, generally and specifically, with respect to joint venture that they could find the defendant not guilty and, even if counsel had objected, it is unclear that the judge would have repeated the full instruction. The Court considered whether not pursuing this argument was “manifestly unreasonable” so as to give rise to a “substantial risk of a miscarriage of justice,” and determined there was no such risk.
“In a postappeal, collateral attack that raises an issue regarding jury instructions, we consider whether a reasonable juror could have used the instruction incorrectly, in light of the instruction as a whole and in the context of the trial.” Although the judge’s supplemental instructions could have been more clear in distinguishing between general malice and premeditation, the jury would have understood that the judge’s instruction regarding deliberate premeditation related to the intent to kill and not an intent to inflict grievous bodily harm. “Even though he could have made certain objections regarding the supplemental instructions, substitute counsel’s actions did not fall below what we would expect from an ordinary fallible lawyer, and the defendant was not significantly prejudiced by substitute counsel’s performance such that he is entitled to a new trial.”
For the foregoing reasons, the SJC affirmed denial of the defendant’s motion for a new trial.