Opinion
No. 12–P–911.
2013-08-6
COMMONWEALTH v. Phillip BUNTING.
By the Court (WOLOHOJIAN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was found guilty of assault and battery in violation of G.L. c. 265, § 13A, and threatening to commit a crime in violation of G.L. c. 275, § 2. In his first appeal, we affirmed the conviction of assault and battery but remanded the case to permit the judge to assess the defendant's claims of ineffective assistance of counsel in the first instance on a motion for a new trial. See Commonwealth v. Bunting, 77 Mass.App.Ct. 1111 (2010). That motion was heard and denied, and this appeal follows. We affirm.
Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. On September 29, 2004, correction Officer Joseph DiPietro was on duty monitoring the inmates assigned to the segregation unit at the Essex County correctional facility. Sometime after lunch, as Officer DiPietro made his round on the second tier of the unit, the defendant complained to him that the window in his cell was not closing properly. Officer DiPietro promised to contact maintenance about it. On his next round, approximately five to fifteen minutes later, Officer DiPietro told the defendant that maintenance workers would be over when they got a chance. Sometime later, the defendant began to kick at his solid steel cell door. The cell doors are controlled remotely from a patrol room level with the second tier of cells. On another round of the unit, Officer DiPietro gave the defendant an order to stop kicking the door and continued on his round. When he was a few cells down, he heard a loud slap and turned around to see the defendant emerging from his cell. Officer DiPietro ordered him back into the cell. The defendant did not comply. Officer DiPietro forced him back into his cell. The defendant struck Officer DiPietro in the chest and neck area multiple times before being subdued with the aid of two other correction officers. The entire incident lasted for three to four minutes. The defense offered a different narrative. The defendant's cell mate, the sole witness for the defense, testified that the defendant remained in his cell at all times and was attacked there by Officer DiPietro, and that the defendant did not fight back.
Discussion. a. Strategic decisions as the basis for ineffective assistance of counsel claims. When a defendant alleges ineffective assistance of counsel based on a disagreement with the strategic decisions by his counsel at trial, such as whether to request instructions on alternative theories of liability, our law calls for a standard of heighted deference requiring the defendant to demonstrate that his counsel's strategic decisions were “manifestly unreasonable.” Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978).
“[W]e do not ‘second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty.’ “ Commonwealth v. Rondeau, 378 Mass. 408, 413, 392 N.E.2d 1001 (1979), quoting from Commonwealth v. Stone, 366 Mass. 506, 517, 320 N.E.2d 888 (1974). “The test is not to be made with the advantage of hindsight, and any violation of the attorney's duty must be both substantial and prejudicial.” Commonwealth v. Adams, supra at 729, 375 N.E.2d 681. Relief is warranted only when trial counsel's strategy deprived the defendant of “an otherwise available, substantial ground of defence.” Commonwealth v. Hill, 432 Mass. 704, 719, 739 N.E.2d 670 (2000), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). “A defendant is not deprived of the effective assistance of counsel simply because defense counsel's reasonable strategic choices fail to produce a verdict of not guilty.” Commonwealth v. Lykus, 406 Mass. 135, 139, 546 N.E.2d 159 (1989).
In Castillo v. Matesanz, 348 F.3d 1, 14 (1st Cir.2003), the United States Court of Appeals for the First Circuit noted that the Massachusetts test for evaluating the strategic choices of defense counsel in the context of a claim of ineffective assistance of counsel satisfied the requirements of Federal law.
The decision in this case to withdraw the request for a self-defense instruction was not tantamount to abandoning the defendant's only defense. Defense counsel's theory at trial was that the defendant was attacked by Officer DiPietro and never struggled or struck back at him. In his thoughtful decision denying the motion for a new trial, the judge credited defense counsel's explanation of his trial strategy and explained that counsel's decision to withdraw the requested instruction and to ask the jury to focus on one theory was reasonable and in keeping with the view that a “ ‘scattergun’ approach is most often a poor strategic choice with juries.” See Commonwealth v. White, 409 Mass. 266, 273, 565 N.E.2d 1185 (1991). Merely because another attorney might have made a different choice does not mean that counsel's choice in this case was manifestly unreasonable.
b. Judge had no independent duty to instruct. While there may be circumstances in which the judge has a duty to instruct the jury on self-defense even when not requested to do so, see Commonwealth v. Norris, 462 Mass. 131, 144 n. 12, 967 N.E.2d 113 (2012),
when, as in this case, defense counsel makes a strategic decision not to seek such an instruction and instead decides to proceed on the basis of the theory on which the case was tried—that the defendant was the victim of an unlawful attack and did not fight back—the trial judge is under no obligation to give a self-defense instruction even if there is an evidentiary basis for it. See Commonwealth v. Roberts, 407 Mass. 731, 737–739, 555 N.E.2d 588 (1990). To suggest otherwise would be tantamount to interference with counsel's ability to present the most effective defense on behalf of his client, see Herring v. New York, 422 U.S. 853, 857, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), and deprive counsel of the ability to make tactical choices at trial that are designed to maximize the likelihood of a not guilty verdict .
Commonwealth v. Norris, supra, was decided after the defendant's first appeal.
It is not necessary in this case to explore the extent to which the judge may have discretion to instruct on a theory that the defendant does not request be presented to the jury. See Commonwealth v. Souza, 428 Mass. 478, 486, 702 N.E.2d 1167 (1998).
Order denying motion for new trial affirmed.