COMMONWEALTH vs. JOSEPH E. DESFONDS.

KASS, J. Joseph Desfonds was convicted by a jury of the second degree murder of Kenneth Haines, who had been killed with a single rifle shot to the forehead on January 4, 1987. In his appeal, Desfonds claims he was denied the assistance of counsel who was free of conflict of interest and effective.

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A further error which the defendant asserts is that he was unlawfully deprived of an evidentiary hearing on his motion for a new trial. We affirm the judgment of conviction and the order denying the motion for a new trial.

Concerning the death of Haines, the jury could have found the following. On the evening of January 3, 1987, Haines and his best friend, Frederick McDermott, visited Desfonds at his apartment in Malden. The three men spent the evening drinking and talking. Sometime around 11:00 P.M., they all left to play pool at a bar on Warren Street in Cambridge, where they had a round of drinks. Shortly after they returned to Desfonds's apartment around midnight, McDermott went home, leaving Haines with Desfonds. Those two continued to drink.

At 4:25 A.M., Desfonds called the Malden police emergency line and told the dispatcher that he had killed someone. When the police arrived, Desfonds led them to the victim's body. Haines was lying on the floor of the kitchen in a pool of blood with a single bullet hole in his forehead, a cigarette clutched in his left hand. A .22 caliber rifle lay to his left. There were traces of gunpowder and the impression of the rifle rim around the entry wound. That wound was consistent with the gun muzzle held directly to the victim's head. The rifle appeared to have been wiped clean of fingerprints.

Desfonds gave the police conflicting explanations about how Haines was shot. He alternately told the police that he had shot Haines and that Haines had shot himself, and, finally (this was the version given by Desfonds at his trial), that while they had struggled over the rifle, it had discharged accidentally.

Earlier, around 3:30 A.M., the victim had called a young woman and pleaded with her to stay on the telephone because somebody was going to kill him but might not if he, Haines, were on the telephone. Haines's voice was trembling. In the background a voice carried over the telephone saying, "I'm going to kill him. Do you dare me to do it? I'm going to

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do it." Haines said into the telephone, "Tell everybody I love them. Tell everybody I said goodbye."

1. Right to conflict-free counsel. The defendant hired Mr. Anthony Fredella to defend him. Some years earlier, Mr. Fredella had represented Haines in a murder case which resulted in the conviction of the latter of manslaughter. [Note 1] For some twenty years Mr. Fredella had also performed legal services for McDermott (the third man, it will be recalled) and, indeed, at the time of Desfonds's trial, Mr. Fredella was representing McDermott in an unrelated civil matter. Aware of the relationship between Mr. Fredella and McDermott, whom it proposed to call as a witness, the Commonwealth timely [Note 2] moved for a judicial inquiry as to whether Mr. Fredella should be disqualified. The motion was denied.

What is implicated here is the constitutional right, under the Sixth and Fourteenth Amendments to the United States Constitution or art. 12 of the Declaration of Rights of the Massachusetts Constitution, of a person accused of crime to have a lawyer with undivided loyalties. Commonwealth v. Davis, 376 Mass. 777, 780-781 (1978). Commonwealth v. Goldman, 395 Mass. 495, 505, cert. denied, 474 U.S. 906 (1985). See Glasser v. United States, 315 U.S. 60, 76 (1942). Yet the right to counsel of choice entitles a defendant to waive the right to counsel altogether free of a conflict of interest. Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978). Commonwealth v. Connor, 381 Mass. 500, 504 (1980). Commonwealth v. Goldman, supra at 505. Commonwealth v. Jones, 403 Mass. 279, 287 (1988). Waiver should not, however, be lightly found, Goldman, supra at 507, and, indeed, every reasonable presumption is against such a waiver having been made because the right involved is a fundamental

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one. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Commonwealth v. Cavanaugh, 371 Mass. 46, 53 (1976).

When conducting a hearing into whether a defendant is intelligently and voluntarily waiving the right to counsel free of conflict, a judge should inquire whether the defendant has received full disclosure of the potential conflict, whether the implications of the conflict have been explained, and whether the defendant has considered the consequences. Commonwealth v. Goldman, 395 Mass. at 507. The judge should appraise the background, education, experience, and conduct of the defendant in deciding whether the defendant is making an intelligent decision. Id. at 508. In questioning Desfonds, the Superior Court judge (he was not the same judge who later presided at the trial) was conscientious about covering the prescribed subject matter, as the portion of stenographic transcript set forth in note 3 shows. [Note 3]

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Form, as well as substance, is of significance in this sort of inquiry. It is better for the judge to question the defendant in

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a manner which evokes narrative responses, rather than a series of "yes" or "no" answers. Id. at 507. United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975). Absent from the colloquy between the judge and Desfonds is a question such as: "Well, why do you want Mr. Fredella to represent you when he has this potential conflict?" Such a question probes a defendant's mind more revealingly.

If short of what we might wish for in an interrogation into whether there has been an intelligent and voluntary waiver of the right to conflict-free counsel, the inquiry by the judge was, nonetheless, satisfactory. A substantially similar set of questions was thought, in Commonwealth v. Jones, 403 Mass. at 287, to be acceptably probing and thorough. Parenthetically, a reading of Mr. Fredella's cross-examination of McDermott does not suggest the lawyer felt constrained. On the contrary, Mr. Fredella's knowledge of the friendship among Desfonds, Haines, and McDermott, and the apparent lack of hostility or apprehensiveness of McDermott as a witness towards Mr. Fredella, produced a cross-examination more helpful than harmful to the defendant.

2. Claimed ineffective assistance of counsel. There were three witnesses whom the defendant says he had directed Mr. Fredella to interview and call to testify, and that Mr. Fredella, mistakenly, neglected summoning them. Desfonds also faults Mr. Fredella for failing to make a posttrial motion to reduce the verdict to manslaughter. We do not think that any of these asserted missteps fell measurably below what might have been expected from an ordinarily fallible lawyer, Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), nor that the defendant was deprived of an available and substantial defense. Commonwealth v. White, 409 Mass. 266, 272 (1991). See generally Commonwealth v. McGann, 20 Mass. App. Ct. 59, 60-62 (1985).

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(a) Rocco DiMaggio said in a posttrial affidavit that he had received a telephone call from Desfonds after the shooting but before Desfonds called the police. He said Desfonds sounded severely drunk and that he knew Desfonds to be a sloppy, rather than a violent or aggressive, drunk. Except to confirm that Desfonds was intoxicated, DiMaggio's purported contribution to the defense is doubtful. Desfonds had mentioned calling his sister before calling the police, but not that he had called DiMaggio. To that degree, DiMaggio's information undermined Desfonds's testimony. Desfonds had also testified that the crisis with Haines had served to sober him up just before the shooting and that he, therefore, remembered the circumstances of the shooting "perfectly." The utility of DiMaggio's testimony to the defense ranges from very marginally helpful to potentially harmful; its omission did not deprive Desfonds of a substantial defense.

(b) Charles DeVille, [Note 4] through posttrial affidavit, said he would have testified that he knew Haines to be a "bad drunk" who became abusive when intoxicated. The jury may be taken to have received sufficient evidence of that aspect of Haines's character when McDermott testified that Haines had once stabbed a man thirty-seven times while drunk on hard liquor. A former woman friend of Haines also testified to his tendency to anger when he drank hard liquor and that he had modulated his drinking because he feared what he might do while drunk. Desfonds had testified that Haines had told him of how he, while drunk, had killed a man by stabbing. The ground for Desfonds's self-defense posture was adequately laid without what DeVille had to offer.

(c) Such information as Janice Ventura had to offer, that the defendant was shaking and cold because of "the booze" when she visited him at the police station several hours after the shooting, did not advance the defense.

(d) Perhaps Mr. Fredella ought to have taken a stab at a motion under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), to reduce the verdict returned to the lesser included

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offense of manslaughter. Such a motion may be brought without time limit, however, Commonwealth v. Keough, 385 Mass. 314, 318 (1982), and could have been pursued by successor counsel. The right of the defendant in this regard was not jeopardized.

3. Evidentiary hearing on new trial motion. The point is governed by Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). The judge's decision to decide the motion for a new trial on the basis of the affidavits submitted on behalf of the defendant was entirely within the discretion of the judge.

Judgment affirmed.

Order denying motion for new trial affirmed.