COHEN, J.
The defendant is currently serving a life sentence
As to each of these claims, we conclude that the defendant has not met his burden to establish both prongs of the test articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974): (1) that there was "serious incompetency, inefficiency, or inattention of counsel—behavior . . . falling measurably below that which might be expected from an ordinary fallible lawyer," and (2) that, as a result, the defendant likely was deprived of "an otherwise available, substantial ground of defen[s]e." We reach this conclusion after independent consideration of the trial record and other documentary evidence, but with deference to the determinations of the motion judge as to the credibility of the witnesses who appeared at the motion hearing: Dr. Ira Kanfer, an expert pathologist called by the defendant, and the defendant's trial counsel, who was called by the Commonwealth.
Background. On the evening of March 13, 1996, the defendant and seven other prisoners, including the victim, Walter Poe, were transported by sheriff's van from the Nashua Street jail to various other facilities. During the trip, Poe, an alcoholic in precarious physical condition, was manifesting symptoms of alcohol detoxification, including hallucinations and incoherent rambling. Annoyed by Poe's behavior, the defendant told him to "shut up" and then administered two sets of powerful kicks to Poe's head and chest, with his right boot. After the second set of kicks, Poe slumped to the floor, mumbling and dazed, at which point the defendant said, "He'll be quiet now."
On March 25, 1996, the defendant was indicted for Poe's murder. At his jury trial, in December, 1997, the defendant was represented by counsel appointed by the Committee for Public Counsel Services from its "murder list." Trial counsel had decades of experience defending criminal cases, including substantial experience in homicide cases.
The defendant's preferred strategy was an "all or nothing" defense—he did not wish to present the jury with an opportunity to convict him of involuntary manslaughter. Counsel tried the case accordingly, primarily emphasizing lack of causation (i.e., that the victim already was suffering from his fatal injury when he encountered the defendant), but also contending that the defendant's actions were designed only to quiet the victim and lacked malice.
The defense suffered a setback at the outset of the trial, when Dr. Edward Sussman, a pathologist retained as a defense expert, told counsel not to call him to testify, because he had come to the conclusion that the defendant's kicks had caused Poe's death. As a result, Dr. Sussman did not take the stand, although he remained in the courtroom and consulted with counsel with respect to the cross-examination of the Commonwealth's expert pathologist, Dr. Leonard Atkins, a Suffolk County medical examiner of long standing. As described further below, during that cross-examination, defense counsel succeeded in eliciting testimony that was helpful to the defense.
Defense counsel also was able to make use of evidence that, several hours before encountering the defendant, Poe was assaulted by another person in custody, Joseph Nichols, as they awaited arraignment at the District Court in Dorchester. Nichols
At the close of the Commonwealth's case, defense counsel became concerned about the strength of the evidence against the defendant. When, contrary to counsel's recommendation, the defendant decided that he did not want to testify, counsel advised him that they ought to introduce the victim's medical records because it would give the jury some reason not to find him guilty of murder. The defendant responded, "No, you did a good job. All or nothing."
Notwithstanding the defendant's preferred strategy, the judge charged the jury on involuntary manslaughter in addition to two theories of murder in the first degree (deliberate premeditation and extreme atrocity or cruelty) and murder in the second degree. The record reflects that the involuntary manslaughter theory was included in the charge with the tacit encouragement of defense counsel, despite a formal objection made in accordance with the defendant's wishes.
In January, 2000, this court, in an unpublished memorandum and order, affirmed the defendant's conviction of murder in the second degree, concluding, among other things, that "the evidence. . . was more than sufficient under both the second and third prongs of malice" to warrant the jury's verdict.
Discussion. 1. Hospital records. The defendant claims that Poe's hospital records contained powerful exculpatory material. In particular, the defendant points to a report by the radiologist who evaluated the CT scan of Poe's head that was performed at Brockton Hospital. The report states that the images suggested the existence of a "chronic subdural hematoma" as well as an "acute subdural hematoma." According to the defendant, this observation, which is repeated in other parts of the medical records, could not fail to have alerted the jury that the victim had a serious pre-existing condition that put him at great risk of fresh bleeding from even a minor impact. Thus, the defendant argues, when coupled with other material in the records (e.g., references to a recent history of seizures, normal X-rays of other parts of the victim's body), as well as evidence of the assault at the District Court in Dorchester, the results of the CT scan likely would have persuaded the jury either that the defendant's actions played no role in bringing about the victim's death, or that the amount of force used by the defendant was insufficient to create an inference of malice.
In assessing the defendant's claim, a threshold issue is whether his rejection of counsel's recommendation to admit the records forecloses him from raising it. The defendant argues that defense counsel is primarily responsible for deciding what evidence to present, and that, in this instance, counsel acted unreasonably in failing to override the defendant's wishes. The Commonwealth, for its part, claims that the defendant must be held to the consequences of his choice—particularly where he has submitted no affidavit or other evidence to suggest that he was uninformed of the records' utility or the risk of proceeding without them. We need not decide this question, however, because the decision not to introduce the hospital records—even if solely committed to counsel's discretion—was not manifestly unreasonable. See Commonwealth v. Hurley, 455 Mass. 53, 70 (2009), and cases cited.
As matters stood, the defendant had no expert witness at trial
In any event, even if the hospital records standing alone were capable of being understood by the jury in a manner that was helpful and not a double-edged sword, we are not persuaded that their introduction would have made a material difference in the case. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Even without the records, Poe's pre-existing fragility and the existence of other possible triggers of his fatal bleed were well developed at trial, particularly during the testimony of Dr. Atkins. Still, the jury were not swayed.
On direct examination, Dr. Atkins explained that Poe suffered from severe cirrhosis of the liver, which would have caused him to bleed very readily. On cross-examination, Dr. Atkins acknowledged that Poe had been hospitalized two days earlier for seizures,
With respect to malice (see note 2, supra), the defendant greatly overstates the utility of the medical records. The defendant's acts, and not the victim's condition, were the strongest indication of his mens rea, and there was no ambiguity as to the nature of those acts. It was not contested that the defendant acted deliberately.
2. Counsel's opening statement. The defendant claims that, in his opening statement, counsel made promises about forthcoming evidence that he knew he would not be able to introduce. It is evident from the transcript, however, that the wording of counsel's opening statement was equivocal and not a promise. It also is evident that counsel had made and was continuing to make efforts to secure the relevant witnesses' attendance at the trial, but ultimately was unsuccessful.
Regardless, even without the benefit of the absent witnesses, counsel was able to develop the theme he had outlined in his opening statement. He established that the altercation between Poe and Nichols could have resulted in a serious injury, and elicited evidence of other possible causes of Poe's fatal acute subdural hematoma. We discern neither ineffective assistance nor prejudice.
3. Impeachment. Counsel was not ineffective in failing to use prior convictions to impeach Nichols and the three prisoners who were in the van with the defendant and Poe. "Impeachment of a witness is, by its very nature, fraught with a host of
In any event, where it was self-evident that each of the witnesses in question had been involved in criminal activity, it is speculative to assume that a different approach to impeachment would have affected the jury's decision. Again, the defendant has failed to meet either prong of the Saferian test.
4. Requests for jury instructions. Defense counsel was not ineffective for failing to request an additional instruction on wanton and reckless manslaughter after the judge instructed (over the defendant's objection) that involuntary manslaughter was a battery causing death. There was no basis for a finding of wanton and reckless behavior other than the uncontested fact that the defendant deliberately kicked the victim and, hence, committed an intentional battery. The jury's finding of malice shows that, even if requested and given, an instruction on wanton and reckless manslaughter would have been futile.
Conclusion. The order denying the defendant's motion for a new trial is affirmed.
So ordered.