No. 9477-CR-3333Commonwealth of Massachusetts Superior Court ESSEX, SS.
May 3, 1999
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR A NEW TRIAL
BRASSARD, JUSTICE.
On January 16, 1997, the defendant, Victor Degro (“Degro”), was convicted of the first-degree murder of Daniel Santiago (“Santiago”) after a jury trial before this court. This matter now comes before the court on the defendant’s motion for a new trial. The court conducted an evidentiary hearing on March 19, 1999, and has had the benefit of extensive legal memoranda and the trial transcript. For the reasons set forth below, defendant’s motion is DENIED.
FINDINGS OF FACTS
For the purposes of this motion, the court makes the following findings of fact:
On November 13, 1994, the defendant, Degro, stabbed Santiago three times, once in the back and twice in his leg, severing his femoral artery causing him to bleed to death within a matter of minutes. Four eyewitnesses observed the incident and testified at the trial as to what they had seen.
Anna Reyes (“Reyes”), who was approximately 17 at the time of the incident, testified that sometime after midnight on November 13, 1994, she was in her house when she heard the voices of Degro and Santiago, prompting her to look out her rear window. (Tr. 3, 152-156). Specifically, she first heard Degro repeatedly say to Santiago, “I want to talk to you.” (Tr. 3, 156). She then saw Santiago get out of his car, and Degro continued to say “I want to talk to you.” (Tr. 3, 158-159). She then heard Santiago say that he did not want to talk to Degro. (Tr. 3, 159). Next, Reyes saw Santiago reach into his pocket and take out a cigarette. (Tr. 3, 160). Reyes testified that she saw Santiago walk toward the stairs and Degro follow him and tell him to throw out the cigarette (Tr. 3, 170). She then saw Degro punch Santiago, causing him to fall backward and hit his head on the balcony. (Tr. 3, 170-171). After asking Degro to leave him alone, Santiago began walking toward the stairs. (Tr. 3, 171-172). Reyes further testified that Degro was following Santiago, repeatedly saying, “I want to talk to you” to which Santiago responded that he wanted to talk the following day because he had been drinking. (Tr. 3, 172).
Reyes testified that as Santiago was attempting to climb the stairs, Degro punched him again, pushed him against the wall, and then drew a knife from his pocket. (Tr. 3, 173-176). She described the knife as a big kitchen knife with a black wooden portion. (Tr. 3, 176). Reyes then observed Degro stab Santiago three times. (Tr. 3, 177). At no time did she see Santiago either try to strike at Degro or even try to defend himself. (Tr. 3, 179). After the third stab, Reyes observed Degro run away from the scene and get into a car with three other people. (Tr. 3, 181).
On cross examination, defense attorney, Paul Cacchiotti (“Cacchiotti”), attacked Ms. Reyes’ testimony by pointing to several contradicting statements. In Reyes’ statement to Trooper Mark Lynch on November 22, 1994, she said that she heard the “young guy from the first floor of 190 tell the old guy from 190 to put his hands down,” she saw the young guy stab the old guy “at least once.”(Tr. 4, 20-23). Furthermore, there were also inconsistencies regarding the number of times that Degro punched Santiago. (Tr. 4, 98).[1] On November 30, 1994, in her statement to the grand jury, Reyes testified that the first time she saw Degro on the evening of the incident, he was coming from the back porch on 190 Bruce Street; at the trial, she said that Degro was coming from the front porch. (Tr. 4, 60). Moreover, when testifying to the grand jury she said that Santiago fell to the ground after being punched, but at trial she retracted this statement. (Tr, 4, 97). Reyes attributed these inconsistencies to her nerves when she was testifying in front of the grand jury, approximately two weeks after witnessing the incident. (Tr. 4, 60). Lastly, defense counsel attacked Reyes’ credibility by raising the fact that she had been seeing a counselor since a few days after the incident. (Tr. 4, 64-69). In addition, at trial, Reyes admitted to telling her counselor a version of events that was different from the versions that she relayed in her November 22, 1994 statement to police, as well as her November 30, 1994 grand jury testimony, and her trial testimony. (Tr. 4, 69-70).
Another eyewitness, Edna Santana (“Santana”) testified that sometime after midnight on November 13, 1994, she was looking out her window and she saw Santiago and Degro standing in the driveway next to the building, “sort of arguing.” (Tr. 3, 56, 59). Because the window was closed, Santana could not hear the conversation, but she assumed by the manner of the discussion and the body language, that they were arguing. (Tr. 3, 60). She testified that she saw Santiago get a cigarette out of his pocket, and as he was about to start smoking it, Degro punched him in the mouth, causing him to fall backward and hit himself against the wooden portion of the porch. (Tr. 3, 62). Santana testified that at that point, she went to the phone to call Miriam Melendez (“Melendez”), Santiago’s “common law wife,” to tell her what had occurred. (Tr. 3, 63). After making the phone call and changing her clothes, Santana went outside and started to enter Santiago’s home when she observed him lying on the floor by the stairs, surrounded with blood. (Tr. 3, 69). She testified that soon after she got to the Santiago’s home, the police arrived. (Tr. 3, 70).[2]
A third eyewitness, David Lopez (“Lopez”), the stepson of Santiago, testified that the first thing he saw when he opened the door of his apartment was Degro stabbing Santiago. (Tr. 5, 112). Lopez testified that immediately thereafter, Santiago walked through the door and fell into his arms. (Tr. 5, 114). He further testified that he saw a cutting knife in Degro’s hand. (Tr. 5, 117).[3]
The fourth eyewitness, Miriam Melendez (“Melendez”), Santiago’s “common-law” wife, testified that sometime after midnight on November 13, 1994, she was awakened by a phone call from a neighbor. (Tr. 5, 82). In response to the phone call, Melendez opened her apartment door and saw Santiago coming up the stairs and Degro standing outside the building. (Tr. 5, 84). She testified that she saw Degro carrying a “long, big knife.” (Tr. 5, 86). After asking Degro why he did it[4] , she told him not to run because the police would find him. (Tr. 5, 86-87).[5]
Prior to the introduction of evidence, Cacchiotti filed numerous pre-trial motions on Degro’s behalf, including a motion in limine to exclude the defendant’s prior convictions. (Tr. 1, 14). The prosecutor informed the court that it was his understanding that Degro’s probation record only identified a number of open matters but no convictions which could be used for impeachment purposes. (Tr. 1, 14). Additionally, while hearing the pre-trial motions, this court expressly advised Degro of his right to testify and his right not to testify. (Tr. 1, 16-17).[6] In response to the court’s inquiry, Degro indicated that he understood the court’s instructions and he did not have any questions regarding these rights. (Tr. 1, 17). Moreover, the court specifically asked Cacchiotti if he wanted the defendant to be asked any additional questions as to these rights. Cacchiotti gave a lengthy response indicating that further questions to his client would be unnecessary.[7]
After the hearing all of the evidence, including the testimony of the four eyewitnesses, the court determined that there was no evidence in the record which would require either a self defense instruction or a manslaughter instruction.[8] (Tr. 5, 165; Tr. 6, 9). The jury convicted Degro of first-degree murder.
Degro now seeks a new trial, pursuant to Massachusetts Rules of Criminal Procedure, 30(b) asserting that (1) he did not make a knowing, voluntary, and intelligent waiver of his right to testify at trial and (2) he was denied effective assistance of counsel. A hearing on this motion was held on March 19, 1999. At the motion hearing, counsel for the defendant presented three witnesses, Victor Degro, Degro’s trial counsel, Cacchiotti, and defendant’s appellate attorney’s legal assistant, Christine Naughton (“Naughton”).
Prior to providing testimony regarding his conversations with Cacchioti and after an explanation from the court regarding his attorney client privilege, Degro waived this privilege. Degro testified that he told his trial attorney about the underlying incident. Specifically, he told him that he had been out on a date and had returned home at approximately 11:45 PM to pick up some tapes so that he and his friends could “drive around and listen to music.” After leaving his apartment, he encountered Santiago outside and Santiago asked him for a cigarette. Degro then asked Santiago if they could talk about a comment that Santiago had made about Degro’s sister.[9] Degro further testified that Santiago said, “keep your bitch sister away from my daughter.” At this point, Degro apparently noticed that Santiago was intoxicated and that he was angry. Degro testified that he had no intention of getting into a fight that evening.
Degro stated that Santiago began getting louder and angrier. Degro tried telling Santiago that he was “too drunk” and therefore they should talk about this at a later time. Degro testified that Santiago kept coming toward him and eventually backed him against the wall. Backed against the wall, with no means for escape, Degro punched Santiago. At this point, Degro saw Santiago reach into his pocket and because of his fear that Santiago was reaching for a weapon,[10] Degro pulled a knife out of his pocket. Degro testified that he carried a folding knife with him for protection because he resided in a “tough area.”
Degro further testified that he swung the knife to try to keep Santiago from lunging at him and harming him. Although he had no intention to make contact when he swung the knife, Degro testified that he stabbed Santiago in the back. Degro testified that at that point, he started to lose consciousness, but thinks that he stabbed Santiago in the thigh before running away. He testified that he has no recollection of a third stab.
Degro stated that he did not run from Santiago because he felt cornered and it is impossible to “run from a bullet.” He further testified that he did not see either Melendez or Lopez at all either before or after the incident. After the incident, he caught up with his friends who had driven away, and asked them to drop him off at a friend’s home. He testified that he went to Salem, New Hampshire which is about five minutes from his house because he was scared and needed time to think. Degro testified that he never intended to kill or do serious or grievous bodily harm.
Degro testified that Cacchiotti advised him not to take the stand because the “DA would twist things around and it will hurt you.” He said that Cacchiotti never explained that his testimony could assist in a self defense claim, or in an effort to avoid first degree murder conviction by way of a manslaughter or second degree murder conviction. According to Degro, had he known at the time of his trial that his testimony would have assisted him, he would have testified.
On the day that the trial was scheduled to begin, Degro signed a letter from his attorney which outlined his options and explained the ramifications of each option. He stated that he did not really read the letter before signing it because he was going to trial for murder and had a lot on his mind. He also stated that he never really spoke with Cacchiotti about a possible guilty plea to a lesser offense before signing the letter. Additionally, Degro acknowledged that at the trial, the court advised him of his right to testify and his right not to testify and explained that, although he should consult with his attorney, the decision was completely up to him. He admitted that even after hearing the testimony of the four eyewitnesses and believing that this testimony was false, he did not withdraw his decision not to testify.
Cacchiotti, defendant’s trial attorney, was a court appointed attorney whose legal practice was 75% criminal. At the time of the trial, he had represented 3-6 defendants who had been charged with first degree murder. Cacchiotti testified regarding what he recalls Degro telling him about the incident. He recalls that Degro said that he was not waiting for Santiago when he encountered him in front of the house. Santiago and Degro had some sort of dispute. He recalls being told that Santiago was intoxicated but does not remember how he was apprised of this information. He remembers being told that some pushing and shoving occurred, Degro punched Santiago, Santiago reached someplace on his person, and Degro pulled out a knife to protect himself. Cacchiotti testified that he and Degro engaged in some conversation about Santiago having a history of violence toward his wife, the precise nature of this conversation having escaped his memory.
Appellate counsel presented Cacchiotti with the letter outlining Degro’s options that Degro signed prior to trial and Cacchiotti said that the purposes of the letter were to assure that Degro understood his options and to protect against future claims. He attempted to assure that Degro read the letter by having an investigator witness Degro reading and signing the letter. Cacchiotti said that he recalls going through the facts on several occasions and Degro continually took the stance that he did not want to testify. He stated that Degro had decided not to testify before even meeting with Cacchiotti. Cacchiotti recalls explaining to Degro that he could change his mind about testifying at any time during the trial. He also recalls explaining that if he were to testify, he could be subject to vigorous cross-examination, and he would have to explain why there were three stab wounds.
Cacchiotti testified that he told Degro about the possibility of pleading to second degree murder but that Degro would only consider pleading to manslaughter. After the prosecution’s case, Cacchiotti recalls asking Degro if he wanted to testify and explaining that testifying could help him or hurt him, but not testifying could not hurt him. He never specifically stated that testifying could assist Degro. Cacchiotti testified that he never told Degro not to testify but also that Degro never informed him that he wanted to testify. Cacchiotti admitted that during the trial he had several serious matters on his mind including his sister’s poor health, his elderly father’s poor health, and the criminal investigation relating to him that was then being conducted by the Attorney General’s Office.
DISCUSSION
The trial judge, upon motion in writing, may grant a new trial at any time if it appears that justice may not have been done. Mass. R. Civ. P. 30(b). The standard is intentionally broad and therefore, the disposition of the motion for a new trial is left to the sound discretion of the motion judge. Commonwealth v. Moore, 408 Mass. 117, 125 (1990); Commonwealth v. Schand, 420 Mass. 783, 787 (1995). There are two grounds upon which a defendant may base his motion for a new trial and both are to be judged according to the aforementioned standard, whether or not justice has been served. Mass. R. Civ. P. 30(b). The first ground is based on newly discovered evidence and the second relates to the conduct at trial. Id; Commonwealth v. Dascalakis, 246 Mass. 12, 21 (1923).
In his motion for a new trial, Degro contends that he did not make a knowing, voluntary, and intelligent waiver of his right to testify. Additionally, he alleges that he received ineffective assistance of counsel because his trial attorney gave him bad advice concerning whether he should testify and because his trial attorney did not request the counseling records of a Commonwealth witness.
Waiver of Right to Testify:
A criminal defendant has a fundamental right to testify on his own behalf. Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 639 (1990). That right is embodied in the due process clause of the Fourteenth Amendment, the compulsory process clause of the Sixth Amendment giving a defendant the right to call witnesses in his favor, and the Fifth Amendment’s guarantee against compelled self-incrimination. Id. For a criminal defendant to waive this fundamental right to testify, a strict standard is applied to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Id. at 640. The decision whether to testify is to be made personally by the defendant in consultation with his counsel. Id.
The right to testify, a right fundamental to a fair trial, must be waived knowingly, intelligently, and voluntarily. See id. at 640. Case law involving whether a defendant voluntarily waived his right to testify generally requires “substantial evidence of coercion indicating that counsel overcame the client’s will. . . .” Wogan v. United States, 846 F. Supp. 135, 141 (D. Me. 1994). Degro accepted the advice of counsel not to testify. There is no evidence in the record nor did Degro assert in his testimony at the hearing that his decision not to testify was a result of coercion from Cacchiotti. See Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir. 1996).
To be knowing and intelligent, the waiver of a constitutional right “must be an intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” Freeman, supra at 640 quoting McMann v. Richardson, 397 U.S. 759, 966 (1970). Degro’s conduct at trial, the letter signed by Degro prior to trial, as well as the testimony of Degro and Cacchiotti at the hearing on the motion for a new trial indicate that Degro had, in fact, made a knowing and intelligent waiver of his right to testify.
Although the judge is not required to conduct a voir dire examination to determine whether the defendant knowingly relinquished his right to testify, Commonwealth v. Waters, 399 Mass. 708, 716 (1987), in this case, the court expressly informed the defendant at the outset of the trial of his constitutional right to testify and the defendant acknowledged that he understood this right. (Tr. I, 16-17). Moreover, when the court asked Cacchiotti whether he would like him to ask Degro any additional questions about his right to testify, Mr Cacchiotti responded, “. . . We’ve discussed it, gone over everything, the difference between a trial and a plea, ramifications of both, testimony of individuals, possible kinds of defenses . . . I think Mr. Degro understands the significance of the trial and testifying and/or not testifying.” (Tr. 1, 17). After hearing Cacchiotti’s representation that he understood the significance of his right to testify, Degro simply sat down without disputing what had been said.
Degro has presented no evidence that he did not possess the ability to make a knowing and intelligent waiver of his right to testify. Although he never completed formal schooling, Degro spoke at the hearing articulately and coherently, indicating an understanding of the issues before the court. At the time of his arrest, he held a job at the shipping and receiving department at Pepsi. There is no reason for this court to conclude that Degro was unable to comprehend the court’s instructions regarding his right to testify, the letter drafted by Cacchiotti which outlined his options and the ramifications of each decision[11] , and Cacchiotti’s discussion with him prior to the trial and during the trial.[12]
Degro asserts that he would have testified in his own defense but for Cacchiotti’s failure to inform him that doing so would assist in establishing either self defense, manslaughter, or second degree murder. Cacchiotti, however, contends that Degro decided not to testify long before he even met with him. The letter signed by Degro which states that “the only defense appears to be one of self defense as long as the witnesses testify that there was an argument and a fight ensued,” indicates that Cacchiotti had in fact discussed the options with Degro and supports the conclusion that Degro knowingly decided not to testify.
In this case, the issue of credibility is somewhat complex. On the one hand, Degro’s credibility is weakened by the fact that his proffered testimony goes against the weight of the evidence offered by disinterested witnesses. Cf.. Freeman, supra at 643.[13] On the other hand, the credibility of Cacchiotti’s testimony at the hearing is weakened by his recent convictions for crimes which are probative of his truthfulness. Commonwealth v. Ruiz, 22 Mass. App. Ct. 297, 303, n. 9 (1986), 400 Mass. 214 (1987) (crimes involving dishonesty or false statements are probative of credibility). After reading the trial transcript, listening to the testimony of Degro and Cacchiotti regarding whether Degro knowingly waived his right to testify, and having given due consideration to these credibility issues, this court concludes that Degro made a knowing and intelligent waiver of his constitutional right to testify.[14]
Ineffective Assistance of Counsel:
Upon a claim for ineffective assistance of counsel for the defendant in a criminal case, the court examines the particular circumstances of the case to determine whether, as a practical matter, there has been serious incompetency, inefficiency or inattention of counsel. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If the court finds that counsel behaved in a manner falling measurably below that which might be expected of an ordinary fallible lawyer, the court must next determine whether such conduct has likely deprived the defendant of an otherwise available, substantial defense. Id. “Judicial scrutiny of counsel’s performance must be highly deferential, indulg[ing] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Commonwealth v. Florentino, 396 Mass. 689, 690 (1986). Given the strictness of this standard, the defendant bears a heavy burden in establishing ineffective assistance of counsel such that a new trial is required. Commonwealth v. Brookins, 33 Mass. App. Ct. 626, 631
(1992).
The defendant contends that he should be granted a new trial because his trial attorney failed to inform him that his testimony could assist him in raising a defense of self defense, or establishing a basis for second degree murder or manslaughter. Moreover, defendant alleges that defense counsel’s failure to request copies of a prosecution witness’s counseling records constitutes ineffective assistance of counsel.
In cases where tactical or strategic decisions of the defendant’s counsel are at issue, the court conducts its review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful. Commonwealth v. White, 409 Mass. 266, 272 (1991). Rather than merely unreasonable, the court requires that challenged tactical judgments must be “manifestly unreasonable.” Id. at 273. In this case, Cacchiotti’s conduct and advice were not “manifestly unreasonable.”
Cacchiotti was faced with powerful prosecution eyewitness testimony detailing the events leading up to the attack and the death of Santiago. In light of the fact that the evidence that Degro would have offered would have contradicted these disinterested eyewitness accounts, it was reasonable for Cacchiotti not to urge Degro to testify, particularly in light of his client’s reluctance to testify, and instead, to try to impeach the witnesses’ testimony through cross examination. Had Degro taken the stand in his own defense, he would have been subject to rigorous and intense cross examination by an experienced prosecutor. See Brooks v. Tennessee, 406 U.S. 605, 609 (1972) (defendant’s choice to take the stand carries with it serious risks of impeachment and cross examination). In certain circumstances, the wiser tactical decision may be to avoid exposing the defendant to cross examination before a jury. Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 389 (1987).
Even if in retrospect, the advice of Cacchiotti may have been unsound, it does not constitute serious incompetency, inefficiency or inattention of counsel. Saferian, supra at 96. When offered, Cacchiotti’s advice was reasonable and appropriate, given his knowledge of the strength of the prosecution’s testimony and the fact that Degro’s version of events was completely contrary to the version offered by neutral eyewitnesses. Commonwealth v. Loranger, Cr. Nos. 911254, 911255, 911262 (Mass.Super. 1995). Degro knew that he had the right to testify and the probable consequences of each of his options. Cacchiotti’s assessment of the evidentiary landscape and his ensuing tactical decision did not fall “measurably below that which might be expected from the ordinary fallible lawyer.” Id; Saferian, supra at 93-98. Although the strategy may have proven to be unsuccessful, it does not necessarily indicate error or ineffective assistance of counsel. Commonwealth v. Brady, 380 Mass. 44, 58 (Abrams, J. concurring).
Degro also urges that defense counsel was ineffective because he did not request the counseling records of Reyes. Assuming that these records could have been obtained, they would have been redundant because defense counsel examined Reyes at some length about the different versions of the events that she had given.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendant’s motion for a new trial be DENIED.
_____________________________ Raymond J. Brassard Justice of the Superior Court
Dated: May 3, 1999