400 Mass. 1007

October 7, 1987

William A. Hahn for the defendant.

James M. McDonough, Assistant District Attorney, for the Commonwealth.

The issue on this appeal is the trial judge's denial of the defendant's motion for a new trial solely on the basis that the issues could have been raised on appeal. The defendant was convicted of murder in the first degree. On appeal, this court, in the exercise of its power under G. L. c. 278, Section 33E, reduced the verdict to murder in the second degree. Commonwealth v. Lanoue, 392 Mass. 583 (1984) (Lanoue I). We need not repeat the facts which are set forth in Lanoue I, supra.

The ground advanced for a new trial is ineffective assistance of counsel at trial and on appeal. The Commonwealth's rejoinder is that the claim of ineffective assistance of counsel at trial, at least, could have been raised in Lanoue I. This response is hardly realistic because the defendant's trial

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counsel was also appellate counsel.

Without expressing any view as to the merits of his claim of ineffective assistance of counsel, we are constrained to reverse the order denying the motion for a new trial and to remand the case to the Superior Court for consideration of the motion for new trial on its merits.

So ordered.