Opinion
No. 24485
December 16, 1996
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL
INTRODUCTION
On December 6, 1991, a jury, sitting with a now retired judge, convicted the defendant of first degree murder on the basis of extreme atrocity or cruelty. In August, 1996, the defendant filed a motion for a new trial, alleging (1) ineffective assistance of trial counsel because trial counsel persuaded the defendant not to testify based on an incorrect interpretation of the law, (2) the trial judge gave erroneous jury instructions regarding the defendant's right not to testify, (3) the prosecutor created a substantial risk of a miscarriage of justice by commenting in his closing argument on the defendant not testifying, (4) the judge gave erroneous jury instructions regarding extreme atrocity or cruelty, (5) the cumulative effect of the erroneous jury instructions violated the defendant's due process rights, (6) appellate counsel was ineffective in her representation of the defendant, (7) ineffective assistance of trial counsel because he failed to request a voir dire of the venire as to whether the issue of abortion would affect any juror's impartiality, and (8) the cumulative effect of all these errors created a substantial risk of a miscarriage of justice. After an evidentiary hearing on November 8, 1996, and a review of the parties' submissions, I DENY the defendant's request for a new trial.
BACKGROUND
The facts giving rise to the defendant's conviction are summarized in the Supreme Judicial Court opinion affirming that conviction. Commonwealth v. Avellar, 416 Mass. 409, 411-15 (1993).
The defendant's appellate counsel was not the same lawyer as his trial counsel. The defendant's current counsel did not act as trial counsel or appellate counsel.
Defendant's counsel in this motion for a new trial filed a well-written, comprehensive 72-page brief raising several issues neither objected to at trial nor raised on appeal. At the evidentiary hearing on this matter, the defendant's counsel thoroughly and effectively presented the defendant's position.
LEGAL STANDARD
"A 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.Crim.P. 30(b). The standard is purposely broad and the disposition of a "motion for new trial is addressed to the sound discretion of the judge." Commonwealth v. Moore, 408 Mass. 117, 125 (1990). Where a defendant has made a substantial demonstration of a new issue of constitutional or evidentiary importance, however, the interests of justice dictate that an evidentiary hearing on the motion for new trial be held. Commonwealth v. Licata, 412 Mass. 654, 660-61 (1992).
"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 standard of whether or not justice has been done. The first ground relates to the conduct of the trial, and the second is based on newly-discovered evidence." Reporter's Notes, Mass. R. Crim. P. 30.
"Occurrences at the trial which may constitute grounds for a new trial include all substantial errors which were committed at the trial and which materially affected the result." Kent B. Smith, Criminal Practice and Procedure § 206a pp. 339-40 (1983). All motions for new trial based upon allegations of error in the conduct of the trial are governed by the standard of whether or not justice has been done. The onus is upon the moving party to demonstrate "that the error possibly weakened his case in some significant way so as to require a new trial." Commonwealth v. Schulze, 389 Mass. 735, 741 (1983).
The court can correct an error which "was of a type and seriousness which should lead [the court] to reverse in the absence of a proper exception. The test is whether there is a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 563-64 (1967); see also Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 16 (1986) (explaining substantial risk of miscarriage of justice standard).
I. Right to Testify
Attorney James H. Fagan testified at length in the evidentiary hearing. Mr. Fagan is an experienced criminal trial attorney who has practiced law since 1973. Mr. Fagan has tried in excess of 100 Superior Court criminal cases and in excess of twenty murder cases. Throughout the course of his representation of Mr. Avellar, Mr. Fagan was repeatedly advised by his client that he was not guilty and that he wished to testify. Mr. Fagan responded that decisions as to whether or not Mr. Avellar should testify could only be made at the time of trial and after the opportunity to evaluate the quality of the testimony offered by the witnesses for the prosecution.
At the outset of the trial, Mr. Fagan filed a motion in limine to the effect that alleged prior misconduct by the defendant toward his former wife, Ms. Poirier, not be allowed to be introduced into evidence. At the hearing on the motion, the prosecutor indicated that such evidence would not likely be admissible in his case in chief, but may be admissible in response to character evidence brought on by the defendant. The trial judge withheld a ruling until the evidence was proffered, but indicated that his "inclination might be to permit it if you're going to put in character evidence."
After the close of the prosecution's case, Mr. Fagan met with Mr. Avellar and his parents for about fifteen minutes in a corridor of the courthouse. Mr. Avellar asked whether or not he should testify, and Mr. Fagan responded that it was his opinion that he should not do so. Mr. Fagan told his client that the government's case was very weak and that if he testified, he would expose himself to intense cross-examination by an assistant district attorney who was extremely experienced. Mr. Fagan told his client that in his opinion there was a much greater likelihood that the assistant district attorney would inflict damage on him or make him look bad in front of the jury than that Mr. Avellar would do himself any good by testifying. Mr. Fagan further advised his client that the "whole point" in the expected cross-examination by the assistant district attorney would be an effort to try to "set the stage" necessary for the assistant district attorney to call Ms. Poirier in rebuttal. Mr. Fagan further advised his client that one of the "down side possibilities of his testimony" was that the prosecutor would lay a foundation for the Poirier evidence. Mr. Avellar asked Mr. Fagan for his judgment as to what he should do. Mr. Fagan told Mr. Avellar "in a forceful way" that the Poirier evidence was a "possibility" and that it would be a goal of the cross-examination by the assistant district attorney. Mr. Fagan gave his client "forceful" advice not to testify, and Mr. Avellar accepted that advice. Mr. Fagan told Mr. Avellar's parents that there was little to be gained by Mr. Avellar taking the stand and simply denying the allegations and that there was much "exposure" to testifying. Mr. Fagan told his client that he did not think his client should testify, that he would hurt himself if he did so, that the government had not proved its case, and that he would "open the door" to the introduction of the Poirier evidence.
Mr. Avellar's testimony at the evidentiary hearing, p. 85:
ADA NADEAU: So, it's fair to say, then, that you did not insist that you testify?
MR. AVELLAR: I insisted — I wanted to testify, but the only thing that stopped me from testifying is Mr. Fagan telling me my wife's allegations would be admitted into the courts. That's the only reason why I did not testify.
ADA NADEAU: Before we get into that, Mr. Avellar, it's fair to say, then, that you did not insist that you testify, but that you accepted his advice?
MR. AVELLAR: Only because —
ADA NADEAU: No, I'm not asking your reasons. Did you accept his advice that you not testify?
MR. AVELLAR: I accepted his advice only for the reason —
In his testimony, Mr. Avellar repeatedly stated that he understood Mr. Fagan to have advised him that simply by taking the stand, the Poirier evidence would be used against him. Mr. Avellar also testified that Mr. Fagan told him that the Commonwealth had not proved its case and that the prosecutor could make him look bad even though he was telling the truth.
Mr. Avellar's testimony at the evidentiary hearing, p. 96:
ADA NADEAU: Okay. So the only thing Mr. Fagan told you was that if you testified, you would be hurt because your ex-wife's allegations would come in, no ifs, ands or but —
MR. AVELLAR: Right. That would —
ADA NADEAU: That's it? That's all he told you?
MR. AVELLAR: And he told me the Commonwealth — in his view, the Commonwealth ain't proven their side of the case. Them two, that's it.
The Court credits the testimony of Mr. Fagan and finds that Mr. Fagan forcefully advised his client not to testify, that Mr. Fagan advised his client of his judgment that the government had failed to prove its case, and that Mr. Fagan strongly urged his opinion that the prosecutor may conduct the cross-examination in such a way as to permit the introduction of the Poirier evidence. The Court does not credit the testimony of Mr. Avellar and his parents to the effect that Mr. Fagan advised them that simply by virtue of Mr. Avellar's taking the stand, the Poirier evidence would be admissible. Mr. Fagan's advice was given in strong tones, but that advice was accurate: if on cross-examination Mr. Avellar were to give testimony to the effect of his good character, the Poirier evidence may well be admissible.
"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 to support a finding of ineffective assistance of counsel." Wogan v. United States, 846 F. Supp. 135, 141 (D. Me. 1994), affirmed, 938 F.2d 1446 (affirming conviction but vacating sentence because below guideline minimums); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir. 1990) (holding attorney's advice not to testify based in part on erroneous belief was "still reasonable and did not impede meaningful waiver where counsel advanced other reasonable grounds, such as belief that the prosecution had failed to prove its case, in advising defendant not to testify").
Mr. Avellar accepted, reluctantly, the advice of Mr. Fagan not to testify. The decision not to testify was that of Mr. Avellar, and, accordingly, that decision was not coerced, but was rather a knowing decision on his part. Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir. 1996) (stating "[u]naccompanied by coercion, legal advice concerning exercise of the right to testify infringes no right"); Lema v. United States, 987 F.2d 48, 53 (1st Cir. 1993) (reluctant agreement by defendant not to testify sufficient to support finding that defendant not "coerced"); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir. 1990) (noting counsel's advice not inappropriate and concluding defendant not denied right to testify). Compare Campos v. United States, 930 F. Supp. 787, 789-90 (E.D.N.Y. 1996) (stating trial counsel refusal to allow petitioner to testify at trial resulted in violation of right to testify). Here, the defendant, albeit reluctantly, made the decision not to testify.
In addition, the defendant's appeal was argued and briefed by counsel other than Mr. Fagan who had tried the case. "That appeal, therefore, was unencumbered by a need of counsel to justify a position previously taken or by a strained relationship (if there was one) between the defendant and trial counsel. Yet the appeal did not breathe a word hinting frustration of [the defendant's] right to testify." Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 387 (1987); see also Commonwealth v. Gill, 37 Mass. App. Ct. 457, 468-69 (1994) (neither defendant nor parents alerted the trial judge of any conflict with counsel regarding right to testify, and judge labelled it an "after-the-fact invention"). Here, the defendant gave the trial judge no indication of a conflict with his lawyer about a desire to testify, and there was no suggestion of a disagreement between trial counsel and his client. The trial judge asked trial counsel if he desired a jury instruction regarding the right not to testify, and Mr. Fagan answered in the affirmative.
Trial transcript, volume VII, page 7-45:
THE COURT: Let me ask you one thing, which I was just thinking about. Do you want me to tell the jury that he has no obligation to testify or —
MR.FAGAN: I'd like you to say that, Judge, perhaps 2 or 300 times, and if possible, to say "beyond a reasonable doubt" an equal number of times.
Although Mr. Avellar focused entirely on one part of Mr. Fagan's advice, namely, the risk of the Poirier evidence, that advice from Mr. Fagan was not incompetent or erroneous, but rather accurate and proper legal advice. Although that part of Mr. Fagan's advice was critical to Mr. Avellar's decision not to testify, that decision on his part was nonetheless an intelligent one and was not a decision premised on erroneous legal advice. Commonwealth v. Stewart, 422 Mass. 385, 386-87 (1996) (stating waiver of right to testify not invalid where "[c]ounsel's advice not to testify, which the defendant reluctantly followed, was not founded on a substantially erroneous premise").
The Court concludes that Mr. Avellar knowingly, intelligently, and voluntarily waived his constitutional right to testify. Further, the Court concludes that Mr. Fagan's advice was proper and legally correct and that Mr. Fagan did not render ineffective assistance to his client.
II. Ineffective Assistance of Appellate Counsel
A defendant has a heavy burden of establishing ineffective assistance of appellate counsel such that a new trial is required. Commonwealth v. Brookins, 33 Mass. App. Ct. 626, 631 (1992). To prove ineffective assistance of appellate counsel, the defendant must show that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," and that this performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Licata, 412 Mass. 654, 661 (1992) (citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)). I analyze this question only under the Massachusetts Constitution and not under federal law because "if the Saferian test is met, the Federal test is necessarily met as well." Licata, 412 Mass. at 661 n. 10; Commonwealth v. Fuller, 394 Mass. 251, 256 n. 3 (1985). "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).
In this motion for a new trial, Mr. Avellar raises several issues that he maintains were errors at trial, and alleges ineffective assistance of appellate counsel for not raising these issues on appeal. Defendant's counsel neither objected to these issues at trial nor raised them on appeal. I address these "on the record" issues for the sole purpose of determining whether appellate counsel's assistance was ineffective, and decline to use my discretion to address these issues for any further purpose. Therefore, in my analysis I apply the ineffective assistance of counsel standard.
Appellate counsel for the defendant's appeal to the Supreme Judicial Court did not appear as a witness at the evidentiary hearing on the motion for a new trial. The defendant alleges that appellate counsel provided ineffective assistance by not raising the following issues: (1) jury instruction error regarding the right not to testify, (2) prosecutorial error in comments in closing argument about the defendant not testifying, (3) jury instruction error by incorrectly defining extreme atrocity or cruelty, (4) jury instruction error in misdefining general intent, (5) jury instruction error for stating strong likelihood of grievous bodily harm would satisfy malice's third prong, (6) jury instruction error in instructing wrongful motives can prove malice, (7) jury instruction error in defining the offense, (8) the cumulative effect of the judge's errors deprived the defendant of due process, and (9) failing to voir dire jurors on issue of abortion.
The parties stipulated appellate counsel would have testified to the following:
"1. Eric Avellar complained to [appellate counsel] at their first meeting that he wanted to testify on his own behalf, and
2. That [appellate counsel] did not withhold for any reason the 'in-the-record' issues now raised, but had overlooked them."
A. Jury Instructions Regarding Right to Testify
The defendant alleges error in the trial judge's jury instructions concerning the right to testify. The defendant contends the trial judge erred when he instructed the jury that:
"You cannot in any way use the absence of any testimony from the defendant to draw any inferences. If you think you need his testimony to draw or not draw any inferences, you cannot make such an inference.
But the jury may, however, properly draw inferences which are not too remote in the ordinary course of events and conclude, upon all of the circumstances and warranted inferences, that the defendant is guilty by evidence beyond a reasonable doubt if you do come to that conclusion."
In addition, when addressing the defendant's right not to testify, the trial judge used negative terms, stating:
"In connection with this case, members of the jury, the defendant has not testified during the course of this trial, and it's very important for you to keep in mind that he has no obligation at all to testify, and you should draw no inference whatsoever with respect to his conduct for his failure to testify.
There is a statute in Massachusetts which says that a defendant in a trial of a criminal case may elect not to testify, and the lack or refusal to testify shall not in any way be used against him.
So, I bring to your attention that the defendant in this case need not testify, and no unfavorable inference should be drawn against him for his failure to testify."
The defendant did not object at trial to these instructions, nor did appellate counsel raise this argument on appeal.
"No aspect of the charge to the jury requires more care and precise expression than that used with reference to the right of a defendant in a criminal case to remain silent and not be compelled to incriminate himself, as provided in art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth Amendment to the Constitution of the United States. Even an unintended suggestion that might induce the jury to draw an unfavorable inference is error." Commonwealth v. Thomas, 400 Mass. 676, 679 (1987). "[I]t is significant that the judge emphasized that the defendant's right not to testify was 'absolute,' and that the prosecution retained its heavy burden of proof regardless of whether the defendant testified." Commonwealth v. Feroli, 407 Mass. 405, 410 (1990).
Here, the trial judge asked trial counsel if he wanted a jury instruction on the right not to testify. Counsel answered affirmatively, but did not ask for any precise language in the instruction, nor did he object to the instruction given. The trial judge carefully instructed the jury that the burden of proof remained with the prosecution, and that the defendant not testifying could not be used against him. Upon review of the jury instruction transcript, and even though negative language was used, I conclude that the instruction as given was not error. See Commonwealth v. Gilchrist, 413 Mass. 216, 217-19 (1992) (the legal adequacy of a charge judged in context of whole charge).
Trial transcript, volume VII, p. 7-45:
THE COURT: Let me ask you one thing, which I was just thinking about. Do you want me to tell the jury that he has no obligation to testify or —
MR. FAGAN: I'd like you to say that, Judge, perhaps 2 or 300 times and, if possible, to say "beyond a reasonable doubt" an equal number of times.
Trial transcript, volume VII, p. 7-124, Judge's charge:
THE COURT: As I told you, I think, before, I'm sure, when I impaneled you as a jury, you should remember that it is the obligation of the Commonwealth to prove by evidence beyond a reasonable doubt not only that all of the elements of the crime were committed, but it is the obligation of the Commonwealth to prove beyond a reasonable doubt that it was the defendant who committed those elements of the crime.
Your function is not to decide if one or the other is guilty, but the burden is upon the Commonwealth to prove beyond a reasonable doubt that it was the defendant who committed all of the necessary elements of the crime, and you cannot guess about that or conjecture about it or speculate about it.
B. Prosecutor Did Not Commit Error in Closing Argument
The defendant contends that the prosecutor committed error in his closing argument because he repeatedly posed rhetorical questions that described imagined scenarios of how the defendant might have injured the victim, and then answered his own rhetoric by telling the jury, "we don't know." According to the defendant, this prosecutorial argument lead to the "inescapable implication" that the only reason "we don't know" is because the defendant did not testify at trial.
"A prosecutor is entitled to emphasize the strong points of the Commonwealth's case and the weakness of the defendant's case, even though he may, in so doing, prompt some collateral or passing reflection on the fact that the defendant declined to testify." Commonwealth v. Feroli, 407 Mass. 405, 409 (1990). "The question is whether the challenged remark, when viewed 'in the context of the entire argument,' is 'directed more at the general weakness of [the defendant's] defense than toward the defendant's own failure to testify." Id. (citing Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert. denied, 446 U.S. 955 (1980)). "[U]nless a prosecutor's comments are of such a nature that a jury would naturally and necessarily construe them to be directed to the failure of the defendant to testify, they are not prejudicially unfair." Commonwealth v. Smallwood, 379 Mass. 878, 892 (1980). Arguably improper remarks must be considered in the context of the entire argument, the judge's instructions to the jury, and the evidence at trial. Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978).
Here, the defendant's trial counsel did not object to this portion of the prosecutor's closing argument. "[T]he absence of objection by defense counsel during or after argument may provide some guidance as to whether a particular argument was prejudicial in the circumstances." Commonwealth v. Thomas, 400 Mass. 676, 682 (1987) (citing Commonwealth v. Kozec, 399 Mass. 514, 518 n. 8 (1987)). The prosecutor's remarks, in the context of the entire argument, were presumably directed at bolstering the credibility of Commonwealth witnesses, at highlighting the inferences the jury could make regarding the medical testimony, at drawing attention to the defendant's inconsistent statements, and directing the attention of the jury to the defendant's general attitude towards the victim. There was no error in the prosecutor's argument because a jury would not "naturally and necessarily" construe the comments to be directed to the defendant's decision not to testify.
C. Trial Judge Properly Defined Extreme Atrocity Or Cruelty
Mr. Avellar urges that the trial judge erred by not requiring the jury to find one of the Cunneen factors present before returning a verdict based on extreme atrocity or cruelty. In determining whether extreme atrocity or cruelty is present, the Supreme Judicial Court has held that a jury "should consider evidence of indifference to or taking pleasure in the victim's suffering, consciousness and degree of suffering of the victim, extent of physical injuries, number of blows, manner and force with which they were delivered, instrument employed, and disproportion between the means needed to cause death and those employed." Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). It was only in 1994 that the Supreme Judicial Court stated that jurors must find evidence of at least one of these factors before a defendant may be convicted of murder with extreme atrocity or cruelty. Commonwealth v. Semedo, 422 Mass. 716, 727 (1996) (explaining Commonwealth v. Hunter, 416 Mass. 831 (1994)). The requirement of finding one of these factors, however, is not retroactive. Semedo, 422 Mass. at 726.
Here, the trial judge listed the Cunneen factors. The defendant alleges the trial judge erred in his extreme atrocity or cruelty instruction because he used language such as "You may also consider" and "those factors may be considered," instead of using language to the effect that finding one of these factors was mandatory. This argument is incorrect. The trial of this matter was held in 1991, and therefore, the requirement the Supreme Judicial Court stated in 1994 is inapplicable to this case.
The defendant's argument that there was error because the jury probably understood "knowledge of pain" to be a factor in considering extreme atrocity or cruelty is misplaced. The instruction, taken as a whole, is clear. The defendant's argument arises only by parsing out and analyzing small sections of the instruction, and ignoring the context. The selection the defendant refers to, adding just the next paragraph, is as follows:
"You may also consider whether the defendant had knowledge of any pain that was being caused to the victim, whether or not the defendant was indifferent to what happened. I instruct you, however, that indifference to or knowledge of and pleasure in a person's pain is cruelty, and extreme cruelty is only a higher degree of cruelty."
Analyzing the instruction in its entirety, there was no error.
D. Misdefinition of General Intent
The defendant claims error in the trial judge's definition of general intent. According to the defendant, the Commonwealth could have proven general intent with evidence of "reflex intent," thereby relieving the Commonwealth of its burden of proving mens rea. Therefore, the jury could have convicted the defendant on proof of an intent that did not refer to a mental state required for the conviction.
Trial transcript, Volume VII, p. 7-145:
THE COURT: With respect to the specific intent that I refer to, it means that the person must have a concentration or focusing of his mind to accomplish that objective for some perceptible period of time. It is a conscious act, in other words, to be a specific intent and a determination of the mind to do it. It is contemplation rather than reflex.
When I say "reflex intent," it's like going up stairs. It's a general intent. When you come into the courthouse, you have the intent to come up the stairs, but you don't think about it. You just naturally do it. That's a general intent.
In the appeal of this case, the Supreme Judicial Court stated, "We are satisfied that that instruction did not give rise to a reasonable likelihood that the jury mistakenly found first prong malice aforethought, without sufficient evidence, rather than second or third prong malice, of which there had been considerable evidence." Avellar, 416 Mass. at 422. Further, the Supreme Judicial Court stated, "In addition, the identity of the assailant, not malice, was the principal issue in contention at the trial." Id. The decision of appellate counsel not to raise this issue on appeal was not ineffective assistance of counsel which likely deprived the defendant of a substantial defense.
E. Jury Instructions Regarding Malice
The defendant contends that the trial judge erred by instructing that evidence of a strong likelihood of grievous bodily harm would satisfy malice's third prong, and by using "frame of mind" definitions of malice. Again, the Supreme Judicial Court stated, "In addition, the identity of the assailant, not malice, was the principal issue in contention at the trial. The overly inclusive description of malice in the jury instructions, therefore, did not give rise to a substantial likelihood of a miscarriage of justice." Commonwealth v. Avellar, 416 Mass. 409, 422 (1993). The decision of appellate counsel not to raise this issue on appeal was not ineffective assistance of counsel which likely deprived the defendant of a substantial defense.
The defendant also alleges trial counsel provided ineffective assistance for not requesting a voir dire of the venire on the issue of abortion. The Supreme Judicial Court found on appeal that evidence of the defendant urging the victim's mother to have an abortion was admissible. In any event, the trial judge could not have effectively conducted voir dire on this issue. Trial counsel's assistance regarding this issue was effective, and, therefore, appellate counsel was not ineffective in not raising this issue on appeal.
Appellate counsel's performance constituted effective assistance even though she did not raise any of the above issues either singly or cumulatively. Appellate counsel raised the following issues on appeal: "(1) Since the evidence required the jury to speculate as to when the fatal blow was delivered and as to who delivered it, [the defendant] is entitled to an acquittal; (2) The admission [in evidence] of Dr. [Robert] Korn's opinion that [the defendant] killed Shawn, based on groundless 'profile' evidence, created a substantial risk of a miscarriage of justice; (3) The trial judge erred in permitting the Commonwealth to introduce evidence that [the defendant] wanted Laura Courtney [Shawn's mother] to have an abortion as probative of [the defendant's] 'attitude toward the child'; (4) The prosecutor improperly elicited previously stricken hearsay opinion evidence and prejudicial vouching evidence; (5) The trial judge erred in failing to give any instruction on consciousness of guilt and in giving harmful, erroneous instructions on malice; (6) The cumulative effect of the above errors requires reversal, and (7) The evidence was insufficient to support the jury's verdict of murder committed with extreme atrocity or cruelty; and, even if minimally sufficient, the thrust of the evidence calls for [a new trial or] reduction to second degree murder." Commonwealth v. Avellar, 416 Mass. 409, 410-11 (1993). In support of these arguments, appellate counsel submitted a 106-page appellate brief.
The challenge of competent appellate advocacy is not to identify every plausible argument but rather to argue those issues which are most likely to be resolved in favor of one's client. Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 233 (1993). "Legal contentions, like the currency, depreciate through over-issue." Jones v. Barnes, 463 U.S. 745, 751-52 (1983). "'[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. at 751). Here, appellate counsel raised seven arguments in her 106-page appellate brief. Appellate counsel's decision not to raise the "on the record issues" did not deprive the defendant of the effective assistance of counsel.
III. Issues Raised for the First Time in Motion for New Trial
Given the Supreme Judicial Court's G.L. ch. 278, § 33E review, and in light of my conclusion that there is not a substantial risk of a serious miscarriage of justice, I decline to consider the "on the record" issues not previously raised at trial or on appeal, any further. Commonwealth v. Harrington, 379 Mass. 446, 449 (1980) (stating trial judge's discretionary power should be exercised "only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result"). "It has been the unbroken practice both under the statute and at common law respecting motions for new trial not to examine anew the original trial for the detection of errors which might have been raised by exceptions taken at the trial." Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973) (citing Commonwealth v. Morrison, 134 Mass. 189, 190 (1883)). "That this is still 'the unbroken practice' is beyond question, and a motion for a new trial may not be used as a vehicle to compel a trial judge to review and reconsider questions of law which were actually raised at the trial and already reviewed by an appellate court or which could have been raised at the trial and in appellate review after trial but which were not so raised." Id. "The trial judge's discretionary power to give relief from such a waiver by permitting such issues to be raised for the first time by a motion for a new trial should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Harrington, 379 Mass. at 449. For the reasons stated, I decline to consider the merits of the "on the record" issues.
ORDER
For the foregoing reasons, it is hereby ORDERED that the Motion for a New Trial of the defendant, Eric Avellar, is DENIED.
____________________________ Raymond J. Brassard Justice of the Superior Court
DATED: December, 1996