Commonwealth v. Mitchell1/24/2003
Bristol.
December 6, 2002.
Perjury. Rules of Professional Conduct. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, Presence of defendant, New trial, Costs. Due Process of Law, Fair trial. Evidence, Exculpatory, Failure to produce evidence. Rules of Criminal Procedure. Words, "Know."
Indictments found and returned in the Superior Court Department on September 19, 1996.
The cases were tried before Raymond J. Brassard, J.; a motion for a new trial, filed on September 11, 2000, and a motion for investigative funds to interview witnesses, filed on November 21, 2001, were heard by him.
A jury convicted the defendant of two indictments charging murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. The defendant's motion for a new trial was denied by the trial judge, on the basis of affidavits, without an evidentiary hearing. The defendant is represented on appeal by the counsel who represented him in connection with his motion for a new trial. The defendant argues that he was denied constitutionally effective assistance of counsel (and incurred violations of other constitutional rights) when his trial counsel, relying on Mass. R. Prof. C. 3.3 (e), 426 Mass. 1383 (1998), set forth below, advised the judge at trial that the defendant would testify and present false testimony to the jury, that counsel had attempted to persuade the defendant from testifying falsely, that counsel had decided that he would not seek to withdraw from representing the defendant in the ongoing trial, and that counsel needed instruction from the judge on how to proceed before the jury. After receiving instruction, counsel presented the defendant's testimony in narrative form and made a closing argument that reflected his understanding of his ethical obligations. The defendant also argues that the judge erred by (a) denying a motion to dismiss the indictments because potentially exculpatory evidence had been lost; (b) rejecting his other contentions concerning the effectiveness of his trial counsel; and (c) denying his motion for funds to interview potentially exculpatory witnesses. We find no basis in any of the defendant's arguments to order a new trial. We also conclude that there is no reason to exercise our authority under G. L. c. 278, ยง 33E, to grant the defendant relief. Accordingly, we affirm the judgments of conviction and the orders denying the motion for a new trial and the motion for funds.
1.
The evidence and proceedings at the trial may be summarized as follows. The victims, Sonya Shurtliff and David Allen, were murdered in the late evening of June 13, 1996, in their Fall River apartment , within hours of a drug raid at Julius Adams's nearby apartment that resulted in the seizure of drugs and the arrest of Adams. After posting bail, Adams returned to his apartment and told his wife, Barbara, and the defendant (the defendant resided in the same building as Adams), a friend to whom Adams supplied drugs, that he believed that the victims had furnished the police with the information used to obtain the search warrant. Adams had sold drugs to the victims until April, 1996, when he had an altercation with them. After the dispute, the defendant sold drugs to the victims.
After their conversation, the defendant asked Adams if he wanted to do anything about the fact that the victims had talked to the police. Adams responded that he did not. Later, that night, Adams was on his porch talking with his brother-in-law, Willie Smith, when he saw the defendant. The defendant told Adams, "I did it." Adams said, "Did what?" The defendant responded, "Sonya and David."
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