484 Mass. 799

October 7, 2019 - June 9, 2020

Court Below: Superior Court, Bristol County

Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.

Records And Briefs:


Homicide. Self-Defense. Constitutional Law, Assistance of counsel, Indictment, Grand jury, Admissions and confessions, Voluntariness of statement. Evidence, Self-defense, Indictment, Grand jury proceedings, Admissions and confessions, Voluntariness of statement. Grand Jury. Practice, Criminal, Capital case, Assistance of counsel, Indictment, Grand jury proceedings, Motion to suppress, Admissions and confessions, Voluntariness of statement.

At a murder trial, the judge did not err in declining to instruct the jury on self-defense, where none of the requirements for such an instruction was met in the circumstances of the case, in which the defendant had multiple opportunities to disengage before shooting the victim. [810-813]

At a murder trial in which the judge granted defense counsel's request that the defendant's testimony take narrative form without defense counsel's express prior invocation of Mass. R. Prof. C. 3.3 (e), and defense counsel permitted the defendant to testify in narrative form rather than leading him through his testimony by questioning, no substantial likelihood of a miscarriage of justice arose, where the right of the defendant to insist on his innocence, and the responsibilities of counsel to establish a trial strategy and tactics to achieve that objective, were properly recognized and respected; further, the conduct of counsel was not likely to have influenced the jury's conclusion, where, once the defendant insisted, against defense counsel's advice, on testifying to an intentional killing in a case in which there was no viable self-defense claim, and did so, the form of the testimony was of no significance, and defense counsel, in closing argument, made the best arguments he could under the circumstances. [813-834] Lenk, J., concurring.

A Superior Court judge did not err in denying a criminal defendant's motion to dismiss indictments charging him with, inter alia, murder, where the grand jury heard sufficient evidence to understand the crux of the issue bearing on the credibility of a witness for the Commonwealth; further, although the prosecutor erred in playing for the grand jury portions of a video recording of a second witness's interview with police that contained irrelevant statements, the statements were not so inflammatory as to have impaired the integrity of the grand jury proceeding. [834-835]

A Superior Court judge did not err in denying the criminal defendant's pretrial motion to suppress statements he made to police officers without the benefit of Miranda warnings, where the defendant made the challenged statements voluntarily and under noncustodial circumstances. [835-836]

INDICTMENTS found and returned in the Superior Court Department on March 19, 2008.

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A motion to dismiss was heard by Robert C. Cosgrove, J.; a pretrial motion to suppress evidence was heard by Gary A. Nickerson, J.; the cases were tried before D. Lloyd Macdonald, J.; and a motion for a new trial, filed on January 30, 2017, was heard by Thomas F. McGuire, Jr., J.

Susan J. Baronoff for the defendant.

Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.

KAFKER, J. A jury convicted the defendant, Fagbemi Miranda, of murder in the first degree on a theory of deliberate premeditation in connection with the 2005 shooting death of Christopher Barros. [Note 1] The victim and the defendant had been engaged in a raucous verbal argument in the street outside the defendant's New Bedford home, when the defendant's younger brother, Wayne, [Note 2] intervened with a handgun. The victim fled across the street and down a neighboring driveway, with Wayne in pursuit; the defendant, who had yelled for Wayne to stop, then dashed down the driveway. Wayne passed the gun to the defendant, who fired two shots at the fleeing victim, one of them fatal. Police arrested Wayne later that night, as multiple witnesses had seen him with the gun chasing the victim, and his indictment for the victim's murder followed roughly one month thereafter. [Note 3] The defendant's indictment and arrest did not follow for more than two years, after a percipient witness (neighbor), who recently had been arrested on unrelated drug charges, proffered her cooperating testimony identifying the defendant for the first time as the shooter.

On appeal, the defendant challenges the trial judge's failure to instruct the jury on self-defense, and raises numerous other issues, including ineffective assistance of counsel, interference with his right to testify, and improper denial of his motions to dismiss the grand jury indictments and to suppress evidence. For the reasons explained infra, we affirm the defendant's convictions as well as the orders denying his pretrial and postconviction motions, and decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

Background. 1. Facts. We summarize the facts the jury could have found based on the Commonwealth's evidence, reserving

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certain topics for later discussion. Not long before 8:30 p.m. on the evening of October 10, 2005, the defendant and the victim engaged in a loud verbal argument on the pavement outside the house where the defendant lived with his family (Miranda home). [Note 4] Their shouting drew the attention of several neighbors. The defendant assumed an aggressive stance, pointing and coming in close to the victim's face, and both men gestured with their hands as they screamed at each other, but they never made physical contact. A third, unidentified man stood looking on nearby, next to a sedan parked on the street outside the Miranda home.

The defendant's younger brother, Wayne, soon ran out the front door of the Miranda home and down the stairs into the street, joining the fracas. The defendant inched back and looked on as Wayne approached within inches of the victim's face and shouted angrily into the victim's ear for several minutes. Wayne then ran back inside the Miranda home. The defendant raised his fists, and the shouting match with the victim resumed.

About one minute later, Wayne reemerged from the front door, still angry, a black handgun now visible in his right hand. Following close behind, Wayne's grandmother yelled at him to stop and get back into the house, and she then tried to block his path and grab him. Ignoring her directive, he proceeded halfway down the porch stairs and then jumped over the bannister down onto the pavement. As Wayne landed next to the defendant, the victim looked at Wayne and yelled: "Are you serious, Waynie? Are you serious? It's like that? It's like that?" Shouting back, Wayne pointed the handgun at the victim's forehead at very close range. The victim stepped back, holding his hands up by his shoulders, palms facing out, while saying "No." The defendant tried to get the gun away from Wayne, and then attempted to push him to go back into the house, while yelling for Wayne to stop and repeatedly shouting "no."

The victim ran across the street and into the open driveway alongside the neighbor's house, proceeding down the narrow path between the right side of the house and a car parked in the middle of the driveway. Wayne chased after him, along the same path. The defendant dashed down the driveway after Wayne, using the wider path along the other side of the car. The unidentified man followed last.

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From where it met the sidewalk on the east side of the street, the twelve-foot width of driveway led straight back, alongside the house and then about twenty feet further, where it ended in front of a long multibay garage that formed the rear perimeter of the property. To the left of the driveway was a small back yard, about forty feet wide, which filled the space between the rear of the house and the garage, with a wooden picket fence running along its north boundary, opposite the driveway. There was a large tree growing in the yard, right up against the fence, roughly ten feet west of the garage. [Note 5]

As the victim raced down the driveway with Wayne in close pursuit, the neighbor, who lived on the second floor of the house on that property, opened an adjacent window and yelled out, "No, Waynie, no. Think of your daughter." [Note 6] Still running, the Miranda brothers converged in front of the parked car, and together they continued down the length of the driveway, coming to a halt near some garbage cans in front of the garage. Following a brief exchange of words, Wayne passed the gun to the defendant. The neighbor saw the defendant raise the gun and point it toward the picket fence on the far side of the yard. The sound of two gunshots rang out in quick succession, emanating from the direction of the yard. The victim's body was later found on the opposite side of the picket fence.

Seconds later, another neighborhood resident (first reporter) observed both Miranda brothers and the unidentified man emerge from the driveway onto the sidewalk, where one of the brothers passed the gun to the other brother. The two brothers then proceeded back across the street and inside the Miranda home, while the unidentified man got into a black car and drove off. Perched on a friend's fourth-floor apartment balcony with a view up the street, the first reporter noted the victim's failure to reemerge from the driveway. He also observed that the black car

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sped off without stopping anywhere in the vicinity to pick up anyone. [Note 7]

About five minutes later, when police responded to an 8:32 p.m. dispatch of shots fired in the area, [Note 8] the defendant was standing by himself on the porch of the Miranda home. A marked police cruiser stopped in front of the Miranda home, and one of the arriving officers asked the defendant if he had heard any gunshots. The defendant replied that he just had been the target of gunshots. The officer climbed the porch stairs, seeking additional details. The defendant appeared jittery as he told the officer that he had been walking to the house from his nearby parked car, when a black Ford vehicle stopped near him on the street. Someone called to him from the back seat shortly before a man wearing a mask jumped out of the vehicle and pursued the defendant across the street, down the driveway next to the neighbor's house, and into the back yard. As the defendant climbed over the fence into a neighboring yard, the man fired two shots at him. The officer asked the defendant to come across the street and point out the fence he was climbing when the man fired at him. The defendant stated that his grandmother was upset, and he wanted to go speak with her; the officer assured him that it would only take a moment, so the defendant agreed.

The defendant accompanied the officer across the street, into the neighbor's driveway, and down to the edge of the yard, where four or five other law enforcement officers were searching the area for evidence with flashlights. [Note 9] He pointed to the picket fence on the north side of the yard and identified it as the one he was

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climbing when the masked man fired. He then asked the officer if he could leave and see his grandmother; following an affirmative response, he departed.

Police soon located the victim's unconscious body on the other side of the picket fence, in the corner of the adjacent residential lot. [Note 10] The victim was lying belly down and partly rolled over onto the left side, with his head turned to face the picket fence. The victim was unarmed. No weapons were found nearby. A bullet wound was visible under his left arm, and his jeans were stained with blood. Despite resuscitation efforts, the victim remained unresponsive, and was pronounced dead upon arrival at the hospital. [Note 11]

Meanwhile, the neighbor was pacing between the rooms of her second-floor residence when she glimpsed the beams of police flashlights in the driveway and yard. From her bathroom window, the neighbor caught the attention of an officer. The neighbor spoke to the officer for about two minutes, but did not report what she had seen in the driveway and yard before the gun shots. When the officer asked the neighbor to come to the police station to make a formal statement, she refused because, as she later testified, she was scared of the Mirandas. [Note 12]

On the street, a number of people had gathered in the vicinity of the crime scene. Officers located the defendant among them

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and told him that detectives would want to speak with him at the station. They escorted him to the marked police cruiser that was parked along the curb outside the Miranda home, and he got into the back seat without protest. An officer then drove the defendant to the station, escorted him inside, and left.

At about 10:30 p.m., another officer met the defendant in the lobby of the police station. The defendant agreed to speak with the officer, and accompanied him to an interview room in the detective unit. The officer did not provide the defendant with Miranda warnings, and made no effort to record the interview. The defendant told the officer essentially the same story he had reported to officers earlier that evening, about a masked man who pursued him across the street and shot at him as he fled over a neighbor's fence. The defendant also admitted that he knew the victim, but not well, and had not seen him for three to five days. After the interview, the defendant consented to submit to a gunshot primer residue test of his hands, which a detective performed, with the defendant's cooperation, at about 11:15 p.m. The detective who secured the gunshot residue sample from the defendant's hands had performed the same test on Wayne about one hour earlier. The record does not reflect precisely when Wayne arrived at the station or whether the defendant knew he was there. Subsequent test results indicated the presence of gunshot residue on both the defendant's hands, and also on Wayne's left hand.

After submitting to the test, the defendant did not leave the station. More than one hour later, he was seated alone inside a conference room when a State police trooper entered and asked to speak with him. The defendant agreed to speak with the trooper, who neither read him Miranda rights nor attempted to record their conversation. The defendant told the trooper the same basic story he had provided to officers twice previously, with minor discrepancies. He admitted that both he and Wayne knew the victim but did not "have any problems" with him. When the trooper told the defendant that Wayne had been arrested, the defendant stated that he thought Wayne was inside the house during the shooting. The defendant was not arrested.

The next morning, the neighbor left her home around 5:30 a.m. and walked to meet a friend for a ride to work. As she crossed the street, the defendant and his cousin met her on the sidewalk. The defendant "grabbed" her and whispered in her ear that he wanted to talk to her, and the cousin whispered in the other ear that she

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would be all right. She continued walking, and met her friend, but could only work for three hours, because she "was an emotional wreck." Later that same day, the neighbor answered a knock at her front door and found two police officers on the doorstep. They were canvassing the neighborhood, seeking information in their ongoing homicide investigation. The officers noted that her entire body began shaking when she opened the door and realized they were police. They were unable to obtain any information from her, because "she was stammering and stuttering her words."

Approximately eighteen months later, in April 2007, police executed a search warrant at the neighbor's home, leading to the arrests of the neighbor and her then boyfriend (who lived with her at that time) for trafficking cocaine in a school zone, and related charges. The neighbor was arraigned and released on bail, and later filed a motion to suppress evidence in her case, which was denied. During the two-year period between the shooting and the order denying her suppression motion, the neighbor and her daughter continued to reside at that house, and saw the defendant "constantly."

The neighbor entered into a cooperation agreement with the Commonwealth whereby she would avoid incarceration in connection with the pending drug charges and receive relocation assistance through witness protection [Note 13] in exchange for her truthful testimony in connection with the shooting. She later testified as a witness for the Commonwealth on three occasions: first, in March 2008, during proceedings before the grand jury that returned the indictments against the defendant; again, four months later, at Wayne's trial; and finally, almost five years later, at the defendant's trial.

2. The defense case at trial. At trial, defense counsel sought to raise reasonable doubt that the defendant intended to cause the victim's death through vigorous cross-examination targeting the neighbor's credibility and the reliability of her identification of the defendant as the shooter. Specifically, counsel concentrated on (1) her initial failure to cooperate with police, and sudden change of heart more than two years later, while confronting the prospect of a nearly certain conviction on charges carrying a sentence of imprisonment; and (2) the more than $14,000 the Commonwealth expended in connection with her relocation under the

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terms of the plea deal, which led counsel to characterize her as "a paid witness." During cross-examination of the first reporter and his friend, defense counsel focused on drawing out facts to support an inference that Wayne had been the shooter, including his intense displays of anger toward the victim, and observations of him holding the gun upon entering the driveway and again upon leaving it, shortly after the sound of gunshots. It was for these reasons that the first reporter had told the 911 operator unequivocally that Wayne shot someone. Both the first reporter and his friend testified that soon after Wayne emerged from the Miranda home holding the gun, the defendant tried to stop him: he said "no, no, no" and tried to push Wayne to go back in the house, but Wayne refused. Defense counsel also questioned the reliability of any inference to be drawn from the gunshot residue test results, by examining the expert as to numerous alternative scenarios that could yield positive residue test results, apart from pulling the trigger.

Against the advice of counsel, the defendant chose to testify. He was the only witness for the defense and testified in uninterrupted narrative form, for reasons explained infra, without objection from the Commonwealth. Defense counsel's associate asked him: "[W]hat would you like to tell the jury?" The defendant replied: "I would like to tell the jury my -- the truth that happened that night on October 10th, 2005." He then proceeded to narrate his version of events, without questions from counsel or the associate to direct his account.

The defendant testified as follows: That evening, he drove home after dinner at a nearby restaurant and parked his car on the west side of the street. When he got out of the car, he noticed an unfamiliar black vehicle parked across the street from the Miranda home. As he neared home on foot, the defendant recognized the victim as the driver of the unfamiliar car, and approached with his hand extended in greeting. The victim got out of the car and "for no apparent reason" punched the defendant on the left side of his face, with enough force that the defendant stumbled. When the defendant regained his balance, he shouted at the victim to explain himself. Rather than explain, the victim spewed expletives at the defendant, and the two men continued shouting at each other in the middle of the street, posturing with their "fists" up to fight, but not coming to blows.

As the defendant "went to swing" a punch, the victim backed up, and the defendant noticed another man (unidentified man)

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coming around from the passenger side of the black car to stand in the street in front of the vehicle. Although the defendant did not see any weapon on the unidentified man or the victim, he sensed he was outnumbered and yelled out, in hopes that one of his brothers would come outside to his aid. Soon thereafter, Wayne ran out the front door of the Miranda home with the gun, [Note 14] and then jumped down into the street, "in defense of" the defendant.

Although Wayne knew "nothing about what happened," there had been "a lot" of shootings in the neighborhood. [Note 15] As Wayne came down into the street, the victim said, "Mother-fucker, I'm going to kill you. Come at me with that, I'm going kill you." Still holding the gun, Wayne moved in an attempt "to get [the victim] away from [the defendant]." At that point, the victim "runs and takes off" across the street, with Wayne behind him, and the defendant "trying to tell [Wayne], 'No, don't, don't follow him. Don't. Don't.'"

When the defendant yelled at him, Wayne stopped at the entrance to the driveway alongside the neighbor's house. Just ahead of him, the victim ran down the driveway, and "kicked out the basement window" of the neighbor's house, alongside a parked car. [Note 16] The driveway was the only one on the street without a gate and, consequently, according to the defendant, "a known stash spot area" for weapons and drugs. Just as the defendant caught up to Wayne at the entrance to the driveway, it "looked like [the victim] went to go reach for something" underneath the parked car. While the victim was "reaching," the defendant "thought [he] saw [the victim] grab something," and immediately reflected, "I hope he ain't reaching for a weapon, I hope not."

At the entrance to the driveway, the defendant took the firearm from Wayne. The defendant followed the victim all the way down

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the driveway and into the dark yard, running perpendicular to the driveway. By the time the defendant reached the driveway's end, the victim was already the whole way across the yard, "sideways" on a "platform" near the picket fence, and it looked like the victim was reaching for a firearm. The defendant thought he saw a "nickel-plated" firearm in the victim's hand as the victim was "coming back around." The defendant "aimed [and shot] at [the victim's] arm and his leg. Never intentionally for the body, just to disarm him and stop the mobility there, that's all." The defendant told the jury that he did not intend to kill the victim, insisting that he was not "a bad person."

On cross-examination, the defendant expressly admitted that he, and not Wayne, had shot the victim. He denied that the victim had put his hands in the air, but admitted that he could see no indication that the victim had a weapon, either while on the street or after he thought he saw the victim "grab something" from under the car in the driveway. The defendant also denied that he "chased" the victim, but admitted to "following" him, explaining that it "happened all so fast" that "there was no conscious decision." Although still insisting that he did not intend to kill the victim, the defendant stated that he held the gun in "two hands to get a steady aim," and then admitted that he intentionally shot at the victim, twice, while the victim was climbing over the fence. At the court's direction, he complied with the prosecutor's request to "show the jury how [he] aimed the gun when [he] killed [the victim]."

In response to cross-examination questions designed to demonstrate that nothing prevented the defendant or Wayne from stopping chasing the victim or going back into their home, the defendant became indignant:

"I'm not going to run away. I'm going to protect my house. That's my house, that's my grandmother, that's my baby brother. I'm not going to run away. I'm going to protect my house. I got the right as a man, as the man of the household, the oldest in the household, I'm going to sit in front of my house and no one is going to come near my house."

He also told the prosecutor that the driveway entrance was "directly across" from the front door to the Miranda home: "[I]f [the victim] would have came out of that driveway while we were walking in the house and started shooting," then the defendant, Wayne, and their grandmother all would have been "caught in the

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crossfire." [Note 17] The defendant admitted lying to police and claimed he had hidden the gun in the basement of the Miranda home. He also acknowledged that he had not testified at Wayne's trial in 2008, and that he had several previous criminal convictions, including of cocaine distribution, witness intimidation and obstruction of justice, resisting arrest, and assault and battery of a police officer. Defense counsel objected during cross-examination more than ten times, but rested the defense immediately after the recess that followed the defendant's cross-examination, without performing redirect examination or introducing any other evidence.

Discussion. 1. Omission of self-defense instruction. On appeal, the defendant contends that there was sufficient trial evidence to raise the question whether he was legally justified in using deadly force to protect himself or another person, and assigns prejudicial error to the judge's decision not to instruct the jury on self-defense. [Note 18] We disagree.

To gauge the sufficiency of evidence to justify instructing the jury as to the Commonwealth's burden to prove that the defendant did not act in self-defense, we "consider the evidence, from any source, and resolve all reasonable inferences in favor of the defendant," Commonwealth v. Ortega, 480 Mass. 603, 610 (2018), without "balanc[ing] the testimony of the witnesses for each side" or "consider[ing] the credibility of the evidence," Commonwealth v. Santos, 454 Mass. 770, 773 (2009), including the defendant's own testimony, which we must presume to be true, no matter how incredible, Commonwealth v. Pike, 428 Mass. 393, 395 (1998), citing Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975). Under this standard, we consider whether there is any record evidence to support at least a reasonable doubt that

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the defendant (1) both actually and reasonably believed himself in imminent danger of death or serious bodily harm avoidable only by using deadly force; (2) sought to avoid confrontation with the victim by using all proper means and reasonably available avenues of escape prior to resorting to deadly force; and (3) used only that level of force reasonably necessary to prevent occurrence or reoccurrence of attack. See Commonwealth v. Harrington, 379 Mass. 446, 450 (1980); Model Jury Instructions on Homicide 24-25 (2018), and cases cited. None of these requirements is met in the instant case. In particular, we emphasize that the defendant had multiple opportunities to disengage before the shooting.

Here, all the record evidence, including the defendant's own testimony, indicates that when the victim "[took] off" across the street and away from the Miranda brothers, the defendant had no reasonable basis for concluding that the victim was armed. At the time the victim began to run, Wayne was the only person holding a gun, and according to the defendant's testimony, he took that gun from Wayne before entering the driveway. Thus armed, the defendant voluntarily pursued the fleeing victim, advancing down the entire length of the driveway past a parked car and into the yard running perpendicular to the driveway. Along this way, he had at his disposal numerous proper means and reasonably available avenues of escape to avoid confrontation. [Note 19] See Commonwealth v. Mercado, 456 Mass. 198, 209 (2010), citing Commonwealth v. Benoit, 452 Mass. 212, 226 (2008) ("privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat"); Commonwealth v. Bertrand, 385 Mass. 356, 362 (1982) (no basis for self-defense instruction where defendant's testimony indicated no attempt to avoid fight with victim). Indeed, the defendant testified that he had no intention of trying to "escape" or "run away." For these reasons, the judge properly denied a self-defense instruction. See, e.g., Commonwealth v. Espada, 450 Mass. 687, 693 (2008) (no self-defense instruction warranted where, over one

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hour after victim-initiated fight, defendant emerged from behind Dumpster and made armed approach toward victim's departing car, rather than remaining safely hidden); Commonwealth v. Maguire, 375 Mass. 768, 769-772 (1978) (judge could have declined to instruct jury on self-defense where, instead of returning inside and locking door after threat from armed victim at his own doorstep, defendant and his brother disarmed victim, chased him downstairs, broke down his door, and assaulted him).

In reaching this conclusion, we recognize the defendant's conjecture that, immediately after threatening to kill Wayne, the victim ran down the driveway toward a potential "stash" that might contain a weapon. Nonetheless, the defendant's suggestion that the victim might have retrieved a weapon from inside the broken basement window, underneath the parked car, or somewhere else along the driveway was pure speculation. The victim's body was found on the other side of the fence without a weapon, and the police did not locate any weapon in proximity to his body, or anywhere else in the vicinity. There was, as the prosecutor correctly emphasized in closing, no evidence that the victim was armed.

Regardless, even if that speculation had some reasonable basis, the defendant had numerous opportunities to retreat and avoid the confrontation once the victim fled across the street. [Note 20] Instead, the defendant armed himself with a gun and pursued the fleeing

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victim across the street, down the driveway, past a parked car, and into the back yard. Before the driveway's end, the victim made a left turn and ran north, across the yard, where he climbed the picket fence. All along this way, the defendant could have retreated and avoided shooting the victim.

Finally, even accepting the defendant's testimony that at the time he fired the gun, the victim was not "going away" but rather "coming back around," while apparently holding a "nickel-plated" "firearm," the law would not excuse the defendant's use of deadly force in self-defense at that point, where the defendant's own aggression and failure to retreat created that situation. The defendant and his brother should have disengaged from the confrontation long before that moment, and had numerous opportunities to do so. This combined failure to retreat and unnecessary escalation of conflict necessarily precludes a finding of self-defense. [Note 21] See, e.g., Espada, 450 Mass. at 694 (self-defense instruction unwarranted where "defendant's own evidence [demonstrated] . . . that he initiated the altercation and created the circumstances by which he alleges he could not retreat").

2. Constitutional claims. The defendant asserts violations of his State and Federal constitutional rights, including his right to testify in his own behalf, his right to the effective assistance of

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counsel, and his right to control his own defense. The defendant independently made two critical constitutional choices, as was his exclusive right. First, he chose to be represented by appointed counsel rather than represent himself, necessarily limiting the extent of his direct personal control over trial management decisions. Against the advice of counsel, he also chose to testify at trial, thereby waiving his privilege against self-incrimination and ultimately incriminating himself. The defendant was permitted to testify to his version of the facts as desired, albeit in uninterrupted narrative form, without direction from counsel. Although it was error to require that the defendant's testimony take narrative form without his attorney's express prior invocation of Mass. R. Prof. C. 3.3 (e), 426 Mass. 1383 (1998), see Commonwealth v. Mitchell, 438 Mass. 535, 546, cert. denied, 539 U.S. 907 (2003) (requiring defense counsel's good faith determination, "based on objective circumstances firmly rooted in fact," that defendant intends to perjure him- or herself, prior to invoking rule and seeking court's guidance), we conclude that there was no substantial likelihood of a miscarriage of justice arising out of this error. Once the defendant insisted on testifying to an intentional killing where there was no viable self-defense claim, the form of the testimony was of no significance. In sum, the jury's verdicts were the ultimate consequence of the defendant's own informed choices, and there was no substantial likelihood of a miscarriage of justice arising out of the error regarding the form of his testimony.

a. Relevant procedural context. We begin with the necessary background that informs our discussion.

i. First motion to withdraw. At the defendant's request, his first counsel filed a motion to withdraw as the defendant's counsel on December 15, 2011, citing breakdown of the attorney-client relationship "with no reasonable chance of repair." At an in camera hearing, the defendant's first counsel described the defendant's case as "very, very defensible," given the neighbor's significant credibility problems, where she alone had identified the defendant as the shooter. The defendant objected to this counsel's proposed strategy, insisting he fired the gun in self-defense and would so testify, thereby corroborating the neighbor's most significant testimony and "undercut[ting]" the strategy his counsel, in exercise of his professional judgment, deemed best. Although the first counsel had helped the defendant obtain some of the discovery materials he believed he needed for his defense, the defendant

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explained that his first counsel would not proceed to trial in the manner the defendant wanted the case to be tried. The defendant told the judge that he was already thirty-five, and "[a]t the end of the day, this is my life. This is if I go home."

A judge ultimately allowed the first counsel's motion to withdraw. The judge also expressly warned the defendant that should he encounter similar divergence with new counsel, any request for further replacement counsel was all but destined for denial, and that the defendant risked facing a finite choice between proceeding with his second counsel and representing himself. The defendant said he understood and immediately requested a new attorney. He received new appointed counsel, who ultimately tried his case.

ii. Second motion to withdraw. One and one-half years later, the defendant and trial counsel in this case also found themselves before the trial judge, in camera, on another motion to withdraw. [Note 22] The defendant sought new counsel. He had filed a pro se motion for a 120-day continuance more than one month earlier. [Note 23] In that pro se motion, he contended that his defense could not be prepared adequately without first obtaining additional discovery. [Note 24] Counsel told the judge that he had "a good relationship"

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with the defendant, but the defendant wished to proceed on a "suicidal" theory of defense "not based upon the facts of the case as [counsel knew] them to be," and lacked any legal foundation. During their last meeting, counsel had explained to the defendant why asserting self-defense or necessity defenses at trial was "unsound strategy," noting that he "certainly would not partake in any subornation of perjury." Counsel had formulated an evidence-based defense, and declined to pursue a legally inviable strategy "simply because [the defendant] chose to have that as his defense." In response, the defendant cited his long-standing, consistently communicated intent to testify that he shot the victim in self-defense, and told the judge that he could not accept a strategy that would "place the guilt" on Wayne, because the defendant "[knew] what really happened" and that Wayne did not shoot anyone.

The judge ultimately told the defendant that given the age of the case, the defendant's apparent history of losing confidence in "highly experienced, highly competent" defense counsel, and the one hundred jurors waiting to be empanelled, "[t]his case has got to be tried." When asked, the defendant told the judge, in no uncertain terms, that he did not want and was not prepared to try the case pro se, even with defense counsel serving as standby counsel.

The trial judge acknowledged the defendant's position, but told him that it would not change the effect of "an attorney coming before the Court and saying that they can't ethically pursue that trial strategy even though they know that it's the preference of their client." Given that the defendant had expressly stated that he was not prepared to represent himself, and there was "no reasonable prospect" that different defense counsel would come to any different conclusions with respect to strategy or the wisdom of the defendant's intention to testify, the judge denied the motion. In terms of guidance for defense counsel, the judge stated: "until such time as [the defendant] testifies, at least on my current view of the evidence, . . . an aggressive pursuit of the strategy which

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you have . . . indicated that you wish to follow would not be inconsistent with what I understand to be [the defendant's] testimony." [Note 25]

iii. Motion for a new trial. Following his convictions, the defendant, who was represented by new counsel, filed a motion for a new trial. His primary argument was that trial counsel had contradicted the defendant's testimony that he shot the victim in self-defense, depriving him of a meaningful opportunity to exercise his right to testify and constituting ineffective assistance. He asserted that this alleged injustice was exacerbated by the judge's failure to instruct the jury on the law of self-defense, which the defendant contended his testimony required. [Note 26] A different judge (motion judge) was assigned to hear the motion, as the trial judge had retired by the time the motion was filed. Following a nonevidentiary hearing, the motion judge entered an order denying relief, based upon review of the record and the documentary evidence filed with the motion. Although counsel provided the court with the transcripts of the relevant in camera hearings and a conference between trial counsel and the defendant in a closed court room, trial counsel did not submit any affidavit, and was not called to testify at an evidentiary hearing.

Although the judge "accept[ed] the proposition that a defendant's right to testify can be 'effectively negated,' by his attorney's contradiction of the defendant's testimony," the judge disagreed with the defendant that counsel had done that in the defendant's case (citation omitted). First, the judge explained, "[t]he defendant had a full and unfettered opportunity to tell the jury everything he wanted to tell them," and although counsel had not filed the defendant's discovery motions, an attorney's "failure to introduce [additional] evidence corroborating a defendant's testimony is not the same as an attorney's contradiction of that testimony."

Next, the judge found that the defendant had not been "abandoned" by counsel during his testimony, where the defense associate helped introduce him to the jury, asked him to tell his

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story, and ensured that he had nothing else to add. According to the motion judge, the narrative form of testimony "promote[d]" the defendant's right to testify and adequately protected his right to present his own version of events. "The defendant's decision to assert that he, and not his brother, shot and killed [the victim] in self-defense" was a fair exercise of "Sixth Amendment-secured autonomy," but was ultimately "a poor choice," since it did not support a self-defense instruction, just as counsel had warned him it would not.

The motion judge stated that counsel is not permitted to argue a defense that is not supported by the evidence, and found that "arguing in the alternative is an appropriate way for defense counsel to handle the difficult situation that rises when a client seeks to pursue a defense that counsel knows is unwise." Counsel never "encouraged the jury to reject [the defendant]'s testimony" in closing. Instead, "[o]nce the defendant testified that he, and not his brother, shot and killed [the victim], [defense counsel] made the best of a difficult situation by properly arguing in the alternative that if the jury believed the defendant, they could not find premeditation and if they disbelieved him, the remaining evidence was insufficient to convict." Defense counsel also raised the possibility that the defendant's testimony was motivated by his love for his brother. The alternative arguments were "based on the evidence and the law," and neither directly contradicted the defendant's testimony nor "violate[d] the defendant's right to testify." As explained infra, despite one legal error related to the form of the defendant's testimony, the motion judge properly denied the defendant's motion for a new trial.

b. Allocation of authority between counsel and defendant. The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights each provide criminal defendants with a "right to choose between pleading through a lawyer and representing oneself." [Note 27] Faretta v. California, 422 U.S. 806, 828 (1975). See Commonwealth v. Tuitt, 393 Mass. 801, 807 (1985); S.J.C. Rule 3:10, § 3, as appearing in 475 Mass. 1301 (2016). By choosing to proceed with counsel, the defendant chose to "protect [himself] from conviction resulting from his

Page 819

own ignorance of his legal and constitutional rights," Johnson v. Zerbst, 304 U.S. 458, 465 (1938), and necessarily placed certain limitations on his right to control his defense. See McKaskle v. Wiggins, 465 U.S. 168, 174, 183 (1984) (only defendant proceeding pro se is guaranteed right actually and personally to "control the organization and content of his own defense"). Those limitations, as explained infra, empowered defense counsel to determine trial management strategy and tactics, including whether a legal argument was viable and ethical to pursue. At the same time, the defendant always retained exclusive authority to make "certain fundamental decisions" regarding his own defense, including whether to insist on his innocence or accept responsibility for a lesser offense, and whether to testify on his own behalf. Jones v. Barnes, 463 U.S. 745, 751 (1983) (recognizing defendant as "ultimate authority" on "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal"). See McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018) (recognizing defendant's prerogative to determine that objective of his defense is asserting innocence).

As the United States Supreme Court recently explained in McCoy, 138 S. Ct. at 1508:

"The choice [between representation by counsel and self-representation] is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in grant[ing] to the accused personally the right to make his defense, speaks of the 'assistance' of counsel, and an assistant, however expert, is still an assistant" (quotations and citation omitted).

In delineating the respective rights of the defendant and responsibilities of counsel, the Court juxtaposed (i) the handful of fundamental decisions always reserved to the defendant, "notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal," with (ii) "the lawyer's province" of trial management: "Counsel provides his or her assistance by making decisions such as what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence" (quotation and citation omitted). Id. See Gonzalez v. United States, 553 U.S. 242, 249 (2008) (elaborating why "[g]iving the attorney control of trial management matters is a practical necessity"); New York v. Hill,

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528 U.S. 110, 114-115 (2000), quoting Taylor v. Illinois, 484 U.S. 400, 417-418 (1988) ("Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has -- and must have -- full authority to manage the conduct of the trial"); Faretta, 422 U.S. at 820 ("[W]hen a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas"). See also Mass. R. Prof. C. 1.2 (a), as appearing in 471 Mass. 1313 (2015) (mandating that defense counsel "shall abide by" certain fundamental decisions belonging to client).

This division of authority is not always clear, [Note 28] particularly when the views of defense counsel and the client diverge. In drawing the line between decisions reserved for the defendant and those left to counsel, the Court has emphasized that "[a]utonomy to decide that the objective of the defense is to assert innocence belongs" to the defendant. McCoy, 138 S. Ct. at 1508.

"Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant's own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence [at trial]. These are not strategic choices about how best to achieve a client's objectives; they are choices about what the client's objectives in fact are."

Id. Once the client identifies the objective of the defense as asserting innocence, however, deciding which strategy and tactics to deploy in achieving that objective remains a task properly reserved to counsel -- at least where those decisions require knowledge of the law or compliance with professional ethical requirements.

Further complicating this question of the extent and nature of a represented defendant's retained decision-making authority is the

Page 821

defendant's absolute right to testify. Deciding between exercise or waiver of this right is one of those settled choices reserved for the defendant, personally. Still, "[w]hether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." Brooks v. Tennessee, 406 U.S. 605, 612 (1972). In making strategic and tactical choices about how best to achieve the defendant's objective of maintaining innocence, then, defense counsel must therefore respect and account for the defendant's right and desire to participate in his own defense by testifying. [Note 29] As a matter of professional judgment, defense counsel may strongly advise the defendant not to testify, but the ultimate decision between remaining silent (requiring the prosecution to prove its case based upon independent evidence) and telling his story in his own voice (opening himself to cross-examination and the introduction of prior convictions) belongs to the defendant. As "[o]ften, the decision is made only as the trial unfolds," Commonwealth v. Waters, 399 Mass. 708, 716, S.C., 400 Mass. 1106 (1987), after the defense has the full "opportunity to evaluate the actual worth of [its] evidence," Brooks, 406 U.S. at 612, defense counsel's task in planning strategy is made even more difficult. This requires a certain amount of flexibility on the part of counsel to address multiple contingencies.

In McCoy, the Court held that defense counsel improperly intruded on rights reserved personally to the defendant, when, during the guilt phase of the defendant's capital murder trial, over "intransigent and unambiguous [client] objection," counsel admitted that the defendant was the killer, anticipating improved odds that a sentencing-phase plea "urg[ing] mercy in view of [his client]'s serious mental and emotional issues" would succeed. McCoy, 138 S. Ct. at 1507, 1512. Despite counsel's opening statement conceding the defendant's guilt, and against counsel's advice, the defendant testified in his own behalf during the trial's guilt phase, "maintaining his innocence and pressing an alibi

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difficult to fathom." [Note 30] Id. at 1507. The Louisiana Supreme Court had upheld the jury's three death verdicts based on counsel's reasonable belief that admitting guilt provided his client the best chance at avoiding a death sentence. The United States Supreme Court granted certiorari to resolve "a division of opinion among state courts of last resort" concerning defense counsel's ability to concede guilt over the defendant's objection, [Note 31] and reversed on the ground that defense counsel's concession of guilt had interfered with his client's right to insist on his innocence. Id. at 1507, 1512.

In the instant case, unlike in McCoy, or certain of the State court cases cited therein, defense counsel and the defendant shared the same principal objective: outright acquittal. They differed as to what strategic and tactical approach should be used to achieve that end. Trial counsel, and the defendant's first counsel, each correctly concluded that the defendant had a viable defense: that the Commonwealth's evidence left reasonable doubt whether the defendant was the shooter, where the neighbor's testimony could be significantly undermined through cross-examination, and the first reporter and his friend, who could not see past the driveway entrance, described Wayne's "angry" demeanor prior to and during his pursuit of the unarmed victim, gun in hand, and the defendant saying "no, no, no" and trying to push Wayne back toward the house.

At the in camera hearing, the defendant objected to this strategy, which he characterized as "blam[ing] it all on [his brother],"

Page 823

whom he wanted to protect and defend. [Note 32] Instead, the defendant wanted to pursue a self-defense strategy in which he would testify to being the shooter. However, the defendant and defense counsel differed on whether there was a viable self-defense claim. As explained supra, defense counsel was clearly correct; no such claim existed, because the defendant had numerous opportunities to retreat, but chose not to. Analysis of the law as applied to the facts of a defendant's case is the clear responsibility of counsel, not the defendant. [Note 33]

We discern no constitutional error in counsel's decision to decline to build the defense on a meritless legal argument, particularly in light of his apparent concerns about the possibility of perjury, discussed infra. The Supreme Court has never required that such arguments be made or pursued. "[T]he Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade." United States v. Cronic, 466 U.S. 648, 656 n.19 (1984).

Here, defense counsel did not concede the defendant's guilt over objection or alleviate the prosecution's burden of proof on any elements of the charges: counsel's strategy was to create reasonable doubt regarding the defendant's guilt, by undermining the prosecution's limited evidence that the defendant, and not his

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brother, was the shooter. [Note 34] This strategy had a real possibility of success, as recognized by two capable and experienced defense counsel. It also avoided any need for the defendant's own testimony, which trial counsel correctly understood would result in conviction, as there was no viable self-defense claim. This also allowed counsel to steer well clear of introducing testimony from his client that raised concerns about possible perjury, thereby fully complying with his own professional responsibilities. [Note 35] It also left the door open to the defendant's testimony, if he chose to exercise his right to testify, contrary to counsel's advice. We address that testimony infra.

We recognize that once the defendant ignored counsel's advice and testified, the viable defense strategy that counsel had developed was significantly undermined. This was, however, a problem of the defendant's own making. Although, in developing a strategy to achieve his client's objective of maintaining his innocence, counsel was required to consider the defendant's persistent insistence that he would testify, we cannot, with one exception, discussed infra, fault counsel's step-by-step approach here. [Note 36] The defendant had the right to insist on his innocence and could represent himself any way he saw fit, but he could not insist that

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counsel base the defense on a self-defense argument that was not viable and raised concerns about possible perjured testimony.

In order "to make the adversarial testing process work in the particular case," Strickland v. Washington, 466 U.S. 668, 690 (1984), defense counsel must be allowed adequate leeway to exercise professional judgement. "Defense counsel in a criminal trial is more than an adviser to a client with the client's having the final say at each point." United States v. Burke, 257 F.3d 1321, 1323 (11th Cir. 2001). Rather, defense counsel is "an officer of the court and a professional advocate pursuing a result . . . within the confines of the law." Id. This requires the "exercise [of] . . . professional judgment to decide tactics." Id. During the in camera hearing, the trial judge explained this to the defendant succinctly:

"Attorneys aren't mouthpieces. . . . [A]ttorneys are professionals who are trained in the dynamic of the criminal courtroom and are bound by the [rules] of professional responsibility and to, you know, do their best for their clients but within the limits of plausible testimony."

Importantly, the judge also offered the defendant the opportunity to present his own defense, which would have allowed him to pursue his self-defense theory without limitation. He expressly declined that opportunity, however, because he believed it would "be detrimental to [his] case." [Note 37] In sum, the rights of the defendant to insist on his innocence, and the responsibilities of counsel to establish a trial strategy and tactics to achieve that objective were properly recognized and respected in the instant case.

c. The defendant's right to testify and be fully heard in his defense. As was his right, and contrary to the advice of counsel, the defendant chose to testify. The right of an accused to testify in a criminal case is one of those "certain decisions regarding the exercise or waiver of basic trial rights . . . of such moment that they cannot be made for the defendant by a surrogate." Florida v. Nixon, 543 U.S. 175, 187 (2004). The defendant always retains the ultimate authority to decide whether to testify, regardless of whether he has elected representation by counsel. See Harris v.

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New York, 401 U.S. 222, 225 (1971) ("Every criminal defendant is privileged to testify in his own defense, or to refuse to do so"); Opinion of the Justices, 300 Mass. 620, 625 (1938) ("It rests wholly upon the volition of the defendant whether he shall fail to interpose [the 'positive and unequivocal' art. 12 'shield' against self-incrimination], or not"). See also Mass. R. Prof. C. 1.2 (a) ("In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to . . . whether the client will testify"); Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011) ("The decision whether to testify is an important strategic one to be made by the defendant in consultation with his attorney").

The defendant's decision followed a personal colloquy with the judge, [Note 38] and the defendant does not dispute on appeal that he understood the risks of testifying to his version of the facts. Neither the judge nor counsel placed any limitation on the substance of the defendant's testimony, and he was provided the opportunity to present his version of events to the jury. [Note 39] The challenge on appeal concerns whether (i) the limitation imposed on the form of testimony, and (ii) the content of counsel's closing argument so undermined the defendant's testimony as functionally to negate his exercise of the right. See, e.g., Commonwealth v. Salazar, 481 Mass. 105, 115 n.7 (2018) ("should the defendant decide to testify to his or her side of the story, respect for the defendant's personal autonomy requires that the defendant's own attorney not undermine that decision").

i. Narrative testimony. The trial judge granted defense counsel's request to have the defendant testify in narrative form, rather than in the form of responding to directed questioning. Although the defendant appears to have been present at sidebar at the time of this request, he voiced no objection. This all transpired after the judge's direct colloquy with the defendant concerning his decision to testify, and the defendant's confirmation of his decision. The record does not reflect whether defense counsel previously discussed the arrangement with his client, or warned him

Page 827

about what its effect might be upon the jury. Nor does it demonstrate that counsel prepared the defendant to testify, although counsel clearly explained the law of self-defense and the dangers of testifying given the law of self-defense. [Note 40]

We have allowed defense counsel's request to have a defendant testify in narrative form in the circumstances governed by Mass. R. Prof. C. 3.3 (e), as appearing in 471 Mass. 1416 (2015), and associated decisions of this court. See Commonwealth v. Leiva, 484 Mass. 766, 785-790 (2020); Mitchell, 438 Mass. at 547-549. That rule, entitled "Candor Toward the Tribunal," sets forth the professional expectations of "defense counsel who knows that the defendant, the client, intends to testify falsely." [Note 41] Mass. R. Prof. C. 3.3 (e). Seventeen years ago, in Mitchell, this court held that a defense counsel's own determination that counsel "knows" the defendant intends to perjure himself must be made "in good faith based on objective circumstances firmly rooted in fact." Mitchell, supra at 546. Although counsel is not permitted to "ignore an obvious falsehood," the standard is a high one, requiring counsel to "resolve doubts about the veracity of testimony or other evidence in favor of the client." [Note 42] Mass. R. Prof. C. 3.3 comment 8.

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In Leiva, which is issued along with our opinion here, we reiterate and reaffirm these requirements. It is only after making this determination, and failing counsel's best efforts to dissuade the defendant from testifying falsely, that counsel may formally invoke rule 3.3 (e) in the defendant's presence at sidebar. After appropriate inquiry, see Leiva, supra at 790; Mitchell, supra, the court must then decide how the trial should proceed, which may include allowing the defendant to testify in narrative form.

Although defense counsel here alluded to concerns about possible perjury, he did not satisfy the necessary prerequisites to invoke rule 3.3 (e) as we initially set forth in Mitchell and later affirmed and expanded in Leiva. Counsel did not make the formal invocation of rule 3.3 (e), indicative of his having made a good faith determination, based upon circumstances firmly rooted in fact, that the defendant intended to bear false witness. Rather, counsel equivocated: "[B]ecause of what I could anticipate the testimony being to an extent, I'm . . . a little uneasy, as to directly questioning [the defendant] . . . . [C]learly, I wasn't there at the time, so I can't obviously, nor would I ever, vouch for the credibility of any witness." In the absence of defense counsel's good faith determination that there was a firm basis in fact to conclude his client was about to perjure himself, [Note 43] counsel and the court should not have restricted the form of the defendant's testimony to an undirected narrative.

Where, as here, circumstances do not support defense counsel's invocation of rule 3.3 (e), the defendant remains entitled to the "guiding hand of counsel at every step in the proceedings against him," including his own critical testimony. Powell v. Alabama,

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287 U.S. 45, 69 (1932). Here, defense counsel should have prepared the defendant to testify. On that basis, defense counsel then should have directed the defendant's trial testimony, deploying professional judgment, skill, and legal knowledge to assist the defendant in presenting his version of events to the jury. It was error not to do so.

That being said, once the defendant insisted that he actually testify, admitted he was the shooter as he wanted to do, and explained that he fired the shots intentionally after following the victim into the back yard, there was little that any defense counsel could have done to mitigate the resulting damage. It was the substance of the testimony the defendant insisted on conveying, and not the form of the testimony, that undermined the defendant's opportunity for acquittal. As explained in detail supra, self-defense simply was not a legal defense available to this defendant, even accepting his testimony as true. The key decision here was whether or not to testify. Defense counsel effectively advised the defendant that it was against the defendant's best interest to do so, but appropriately deferred to the defendant's ultimate decision to the contrary. Counsel's mistake was in not directing that testimony to the best of his ability, even when the client had eschewed his advice.

We have yet to consider the appropriate standard of review for a violation of rule 3.3 (e). As we have explained supra, the defendant's right to determine the over-all objective of his defense -- outright acquittal -- was not violated in this case. See McCoy, 138 S. Ct. at 1508. He also was not prevented from testifying, as he did so. Id. Either of these violations would have constituted structural error, requiring reversal, but neither occurred here. [Note 44]

Moreover, neither the court nor defense counsel forced the defendant to choose between exercising the right to testify and the right to continued representation by counsel. Compare United States v. Midgett, 342 F.3d 321, 323 (4th Cir. 2003), where the trial judge required the defendant to make "the choice of either acceding to defense counsel's refusal to put him on the stand or representing himself without further assistance of counsel," and Brown v. Commonwealth, 226 S.W.3d 74, 78, 86 (Ky. 2007),

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wherein defense counsel "shook hands with the prosecutors and left the courtroom," thereby "completely abandon[ing] defendant during his narrative statement, cross-examination and closing argument in the guilt phase of the trial." [Note 45] Here, defense counsel continued to represent the defendant throughout the trial, provided the defendant with careful advice regarding the decision to testify, and ultimately deferred to the defendant's desire to testify, although contrary to that advice. More specifically, counsel correctly explained the law of self-defense to the defendant and advised him not to testify, astutely counselling that his testimony would result in his conviction and not his objective, which was acquittal. Defense counsel also had concerns about suborning perjury, which clearly influenced his decision to request narrative and not directed testimony, but he did not make the necessary representations required under our rule 3.3 (e) jurisprudence. Thus, when the defendant rejected defense counsel's good advice, counsel either should have determined what the defendant wanted to tell the jury and then guided the defendant's testimony through direct examination, or made the necessary representations required by our rule 3.3 (e) doctrine. The question presented is what standard of review applies to this type of error by counsel.

We conclude that this type of error by counsel is not structural. Rather, it is properly analyzed as an issue of ineffective assistance of counsel. [Note 46] Mitchell, 438 Mass. at 546 n.6 ("With respect to appellate review, we examine the defendant's constitutional claims

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[relating to rule 3.3 (e) violations] on effective assistance of counsel under G. L. c 278, § 33E, which is more favorable to a defendant than are the Federal or State constitutional standards"). Cf. McCoy, 138 S. Ct. at 1510-1511 ("Because a client's autonomy, not counsel's competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence"). Thus, "[w]here the claim of ineffective assistance is raised in a motion for a new trial that has been denied, and where the appeal from the denial of that motion is raised in conjunction with a direct appeal under G. L. c. 278, § 33E, [we employ the substantial likelihood of a miscarriage of justice standard and] review to determine whether any conduct or omission by counsel 'was likely to have influenced the jury's conclusion.'" Commonwealth v. Morales, 453 Mass. 40, 44 (2009), quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). We conclude that there is no such likelihood in the instant case. The problem here was not the narrative form of the testimony, but the testimony itself. As he had no viable self-defense claim, regardless of whether the testimony was presented in narrative or directed form, there was no likelihood that counsel's error prejudiced the defendant. [Note 47]

ii. Defense counsel's summation. During his closing argument, defense counsel emphasized to the jury that they were the arbiters of witness credibility. "[Y]ou can credit all of what they said, you can credit none of what they said, that's up to you." The Commonwealth had not even pursued charges against the defendant for years after the shooting, he argued, until the neighbor, "who

Page 832

couldn't be bothered for those years . . . because there was nothing at stake," decided to come forward as a cooperating witness: when she was caught trafficking cocaine, had lost her suppression motion, and faced nearly certain incarceration. She was essentially a "paid witness," he continued, given that the Commonwealth had expended more than $14,000 to her benefit to relocate her under the terms of the plea deal. Defense counsel pointed out that the other percipient witnesses, who had come forward right away, reported seeing Wayne enter the driveway behind the victim with the gun in his hand, and then, after the gunfire, seeing Wayne hand the gun to the defendant upon their emergence from the driveway: these reports led to Wayne's arrest. It was only two years after the shooting, counsel stressed, when the neighbor experienced an "epiphany" to come forward and "to say what she saw so she wouldn't have to go to prison," that charges were brought against the defendant.

Defense counsel then addressed the defendant's testimony: "[Y]ou can credit everything [the defendant] said. You can do that. Take it at face value, that's what he did, that's what happened." Counsel further stated that, if that was what the jury were going to do, they should carefully weigh the evidence suggesting that this was not a premeditated murder; it all happened fast, the defendant was angry, he did not have time to think -- he just acted. In the alternative, counsel continued,

"[Y]ou also have the option of not crediting [the defendant] at all. That's up to you. . . . Maybe [you think] he's doing that . . . to protect Wayne, his baby brother. [The prosecutor] asked [the defendant] himself, 'You loved your brother?' Answer: 'Yeah, I love him, he's my baby brother.' . . . [M]aybe you think this guy is just out there protecting his brother."

Counsel did not mention the defendant's testimony that he fired in self-defense because he thought he saw the victim with a gun, or the defendant's repeated testimony that it was not his intent to kill the victim. Defense counsel placed final emphasis on the enormity of the burden of proof beyond a reasonable doubt, and urged the jury to weigh the evidence, "piece by piece, witness by witness, and come to a conclusion."

The defendant contends that this closing violated his right to testify, because it suggested that his own counsel did not credit

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his story, and effectively negated the version of events he related on the witness stand -- that he had acted in self-defense, and never intended to kill the victim. Defense counsel's closing was more subtle. As a skilled defense lawyer, he knew the defendant's claim of self-defense was not viable. He had also not forsaken or contradicted his client, even going so far as to advocate for a self-defense instruction, which the judge correctly rejected. At the same time, counsel had to make the best argument he could on the defendant's behalf given the defendant's own testimony describing an intentional shooting. Defense counsel did so by relying on reasonable doubt; the credibility problems of the primary witness against the defendant (besides himself); the suggestion that the defendant might just be trying to protect his younger brother; and finally, the lack of premeditation if the jury did credit the defendant's testimony that he shot the victim.

This is not a case where counsel failed to put the Commonwealth to its proof by conceding guilt, or even admitting some element of the charges, over the objection of a defendant claiming factual innocence. See, e.g., McCoy, 138 S. Ct. at 1509 (vacating death penalty verdict where attorney argued jury should find defendant guilty but mentally ill over objection of defendant whose testimony asserted factual innocence); Commonwealth v. Triplett, 398 Mass. 561, 569 (1986) (entirely and affirmatively abandoning insanity defense in closing by conceding defendant had capacity for premeditation, also undermining remaining defense theory); Cooke v. State, 977 A.2d 803, 843-844 (Del. 2009), cert. denied, 559 U.S. 962 (2010) (fundamental right to testify effectively negated by objective of defense counsel to have jury find defendant guilty but mentally ill). Rather, as the motion judge properly concluded, defense counsel made the best arguments he could under the circumstances when confronted with the defendant's admission of an intentional shooting and the absence of a viable claim of self-defense. He made proper argument in the alternative, providing the jury a path to an acquittal if the jury decided to believe that the defendant's testimony was designed to protect his younger brother, or to a verdict of less than murder in the first degree if the jury credited the defendant's testimony. Contrast Triplett, supra (urging jury to credit testimony of defendant's mother "a hundred percent," and implicitly to reject defendant's wholly contrary story, not only undermined plausibility of defendant's self-defense narrative, but also eroded counsel's own voluntary manslaughter strategy); People v. Bergerud,

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223 P.3d 686, 706 (Col. 2010) (remanding for further fact finding as to possible counsel threats to "completely contradict [defendant's] testimony were he to offer it, or . . . otherwise persist in wholly undermining the believability of his testimony"). In so doing, defense counsel did the best he could to secure the defendant's acquittal, and avoid his conviction of murder in the first degree, while respecting the defendant's right to testify as he so desired.

3. Grand jury. The defendant filed a pretrial motion to dismiss the indictments in November 2009, contending that the Commonwealth's deliberately misleading presentation of evidence impaired the integrity of the grand jury proceedings. Specifically, he alleged that the prosecutor (i) intentionally deemphasized some and omitted other material evidence that would have greatly undermined the credibility of the Commonwealth's key witness, and (ii) chose to incorporate segments of a video-recorded witness interview containing irrelevant and unfairly prejudicial statements. Following a January 2010 evidentiary hearing and subsequent supplemental briefing, a judge entered an order and memorandum denying the motion. The judge reasoned that the Commonwealth had satisfied its disclosure obligations by eliciting the essential circumstances of the neighbor's cooperating testimony, and that while certain statements "of dubious relevance . . . should have been excised" from the challenged recording, none was so prejudicial that the grand jury probably would not otherwise have indicted the defendant.

The judge did not err in denying the defendant's motion to dismiss. The grand jury heard sufficient evidence to understand the crux of the issue bearing on the neighbor's credibility -- that she faced pending drug charges and had offered her truthful testimony in exchange for avoiding jail time. This was enough to allow a meaningful opportunity for the grand jury to consider the neighbor's status as a cooperating witness when weighing her credibility.

While it was error to play portions of the video recording of the first reporter's interview with police wherein he expressed concern for his safety and fear of retaliation by the Mirandas, as well as his desire to see the killer brought to justice, we agree with the motion judge's conclusion that, although these irrelevant statements should have been redacted, they were not so inflammatory as to impair the integrity of the grand jury proceeding. Witnesses in murder cases often fear retaliation and aspire to see a killer brought to justice. We are confident that the grand jury would

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have indicted the defendant notwithstanding the impropriety here.

4. Motion to suppress statements. The defendant challenges the admission of certain statements he made to officers at the New Bedford police station without the benefit of prior Miranda warnings. He contends that his pretrial motion to suppress these statements should have been allowed. [Note 48] We disagree. The determination by the judge who heard the motion to suppress that the defendant made the challenged statements voluntarily and under noncustodial circumstances is supported by the judge's subsidiary findings and a correct interpretation of the applicable law.

When reviewing the denial of a motion to suppress, we defer to the judge's determination of "the weight and credibility to be given oral testimony presented at the motion hearing," and accept the judge's findings of fact absent clear error, but perform an independent review of the judge's legal determinations. Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). An interrogation is custodial if, based upon an objective evaluation of the circumstances, Commonwealth v. Larkin, 429 Mass. 426, 432 (1999), "a reasonable person in the defendant's shoes would have perceived the environment as coercive," Commonwealth v. Wadsworth, 482 Mass. 454, 481 (2019). The judge properly applied the guidance of Commonwealth v. Groome, 435 Mass. 201, 212 (2001), using the four factors set out in that decision to guide his analysis. [Note 49]

The judge found that only one of the four Groome factors weighed in favor of a custody finding: the place of interrogation, the New Bedford police station. The defendant was not taken to the station against his will. An officer told the defendant that other officers would want to question him, and asked the defendant to get into the back seat of his cruiser. When the defendant complied,

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he was not handcuffed, and he was not placed under arrest. See Commonwealth v. Cruz, 373 Mass. 676, 682 (1977) (evidence supported finding that "defendant consented to enter the police cruiser and to go to the station for questioning"). The officers considered him "a potential witness." They also did not appear to communicate to the defendant that he was a suspect. [Note 50] The motion judge found that the questioning was conversational; the officers' approach was of an informational nature and their questioning was not accusatory but "investigatory in nature." They asked the defendant whether he would speak with them, and he consented without hesitation. Finally, and most importantly, the defendant was free to leave: indeed, he left after the questioning ended, and police did not arrest him until more than two years later. The evidence did not support a finding of custodial interrogation, and the judge found that failure to administer Miranda warnings was of no consequence. The judge properly denied the motion to suppress the defendant's statements.

5. Review under G. L. c. 278, § 33E. "It is our statutory duty 'to consider broadly the whole case on the law and the facts to determine whether the verdict is consonant with justice.'" Salazar, 481 Mass. at 118-119, quoting Commonwealth v. Vargas, 475 Mass. 338, 363-364 (2016). Upon review of the entire record as required under G. L. c. 278, § 33E, we are confident that our adversary system functioned effectively to produce a just result in this case. The defendant's convictions, as well as the orders denying his pretrial and postconviction motions, are affirmed.

So ordered.

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LENK, J. (concurring). I agree with the court that a new trial is unwarranted. I write separately only to underscore that the erroneous use of narrative testimony, because it was a misstep solely attributable to counsel, properly is viewed through the lens of ineffective assistance of counsel.

As the court rightly notes, trial counsel lacked a good faith basis to believe that his client intended to commit perjury, a necessary prerequisite for invoking Mass. R. Prof. C. 3.3 (e), as appearing in 471 Mass. 1416 (2015). Rather, counsel sought permission for the defendant to give narrative testimony simply because he did not know what his client intended to say on the stand. Counsel's lack of awareness was reflected in a conversation between the judge and defense counsel that occurred at sidebar: Defense counsel: "I'm going to ask the Court if it would allow me by way of presenting [the defendant], if I could introduce him to the jury and then have him give a narration as opposed to being directly questioned by me, and that way he would have an opportunity to express what he wishes to express."

The judge: "You mean as opposed to going question by question?"

Defense counsel: "Yes. I would prefer the Court's --"

The judge: "Well, let's wait and see how that goes. I'm inclined to permit that."

Defense counsel: "Just simply, because of what I could anticipate the testimony being to an extent, I'm not fully aware, despite my best efforts to extract every nook and cranny, which makes me a little uneasy, as to directly questioning him, hence, if he wishes to exercise his right, I think it may be best suited for him to do his narration."

The judge: "Your concern being because you're not completely confident about what [the defendant] is going to be saying --"

Defense counsel: "Correct."

Once the trial judge received this request, it was reasonable to rely on counsel's representation that direct examination would not be a sufficient vehicle for vindicating the defendant's right to

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testify and present his defense. Cf. Commonwealth v. Mitchell, 438 Mass. 535, 552, cert. denied, 539 U.S. 907 (2003) ("In evaluating the situation, the judge will have to rely on the representations of counsel, which of necessity will be cryptic, because counsel is the one who must make the disclosure while maintaining client confidences and allowing for continued zealous advocacy at trial"). Under these rather unique circumstances, the trial judge did not err by permitting -- not mandating -- the use of narrative testimony. Cf. State v. Francis, 317 Conn. 450, 465-467 (2015) ("the court effectively conveyed to the defendant that he had two, and only two, choices: [1] testify and self-represent; or [2] relinquish the right to testify and maintain the assistance of counsel"); Brown v. Commonwealth, 226 S.W.3d 74, 85 (Ky. 2007) (accord).

Had the judge instead, acting under the aegis of Mass. R. Prof. C. 3.3 (e), erroneously prevented counsel from conducting a direct examination of the defendant, I could not view this error through the lens of ineffective assistance of counsel. Applying that standard would recognize only part of the problem, and thereby would fail to capture the effect that the judge's error would have had on the structure of the trial itself.

Rather, as this court and the United States Supreme Court long have held, when the State completely deprives a defendant of the right to counsel at a critical stage, that is reversible structural error. See Garza v. Idaho, 139 S. Ct. 738, 744 (2019) ("no showing of prejudice is necessary 'if the accused is denied counsel at a critical stage of his trial'"), quoting United States v. Cronic, 465 U.S. 648, 659 & n.25 (1984) ("[The United States Supreme Court] has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding"); Ferguson v. Georgia, 365 U.S. 570, 595–596 (1961) (statute mandating narrative testimony violated right to assistance of counsel); Commonwealth v. Valentin, 470 Mass. 186, 194 (2014) ("denials of counsel constitute structural error and require no showing of prejudice to warrant reversal").

Here, however, it was counsel, and not the judge, who improperly limited his own ability to assist the defendant through direct examination. Where that unilateral misstep did not entirely deprive the defendant of his right to the assistance of counsel at a critical stage, cf. McCoy v. Louisiana, 138 S. Ct. 1500, 1509 (2018), the ineffective assistance of counsel standard properly

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assesses both the nature and impact of this error.


[Note 1] The jury also convicted the defendant of assault and battery by means of a dangerous weapon and unlicensed possession of a firearm.

[Note 2] To avoid confusion, we refer to Wayne Miranda by his first name.

[Note 3] In July 2008, a jury convicted Wayne of murder in the second degree, and the judge imposed a sentence of life imprisonment.

[Note 4] The defendant's younger brother, Wayne, their mother, their grandmother, and a cousin also then resided at the Miranda home.

[Note 5] The jury participated in a view of the crime scene and its surrounding vicinity, which would have informed their spatial understanding of the various photographs, diagrams, and other evidence introduced at trial relative to the layout of the crime scenes.

[Note 6] The neighbor had lived on the second floor of the house for about four or five years, with her two school-age children; the house belonged to her grandfather, who lived on the first floor. The neighbor was friendly with Wayne and knew the rest of the Miranda family. She recognized the victim, because Wayne had been outside talking with the neighbor on her porch about two weeks before the shooting, when the victim showed up on their block and Wayne introduced him to the neighbor.

[Note 7] Police located the car later that evening, parked at the home of the victim's sister, on the opposite end of the city. No weapons were found when the police searched the vehicle.

[Note 8] Two neighbors who witnessed parts of the altercation before the shooting and heard (but did not see) the gunfire called 911 to report the incident. The initial caller was the first reporter. From certain of the windows and a balcony in his friend's apartment, he had a clear view to the north, in the area of the street near the Miranda home (without visibility into the driveway or yard of the neighbor's house). The first reporter telephoned police when he and his friend (who both knew the Miranda family, but did not recognize the victim) saw Wayne come out onto the porch of the Miranda home with the gun. The neighbor initiated the second 911 call from her house, right after she heard the shots fired in her yard.

[Note 9] Police located two spent bullet casings on the ground in the area near the garbage cans. At the defendant's trial, the Commonwealth's ballistics expert testified that both casings were of the same caliber and manufacturer, and he opined, based upon his analysis, that both were shot from the same unknown weapon. He also stated that most common handguns that shoot that type of ammunition eject spent cartridge casings to the right.

[Note 10] Some of the pickets in the part of the fence near the body were missing, and others were broken. Just over that part of the fence, on the ground in the neighbor's back yard, police found a broken picket, stained with what looked like blood.

[Note 11] The autopsy confirmed that the victim was shot twice and identified a cut on his left palm near the wrist. The first shot, which was fatal, entered the front of the left bicep at about a forty-five degree downward angle, piercing both lobes of the left lung and the spinal column. The second bullet entered through the back of the victim's left upper thigh, left through the victim's "right groin area," and got caught in the victim's clothing. In the expert opinion of the Commonwealth's medical examiner, the damage from the first bullet would have caused death in "some number of minutes," which the victim likely spent coughing up blood and struggling to breath. The projectiles recovered from the victim's body and clothing were of a caliber consistent with the discharged cartridge casings found in the neighbor's back yard. The Commonwealth's expert was unable to opine whether they were shot from the same weapon, because that conclusion would require access to the gun that shot them. Police never found the murder weapon.

[Note 12] After the shooting, the neighbor received multiple telephone calls from the Miranda home; there were "a lot" of calls, but she answered none.

[Note 13] The assistance included a cash payment in the amount of $400 to the neighbor and direct payment of living expenses (temporary lodging, moving, rent, etc.) in the amount of $13,863.59.

[Note 14] The defendant admitted that the semiautomatic handgun was "my illegal gun," and that he knew it was real, operable, and loaded.

[Note 15] "[M]y brother had nothing to do with the situation, he just came over in defense of me because he didn't know what was happening with two people around me, what could have transpired because of the neighborhood that we live in."

[Note 16] At trial, one of the Commonwealth's police witnesses who responded to the call of shots fired, and assisted with the investigation at the crime scene, testified to observing that a basement window on the ground level near the driveway entrance was broken. Police obtained the homeowner's consent to enter and search the basement on the night of the shooting, but did not locate anything of interest to the investigation.

[Note 17] Trial exhibits showing aerial photographs of the relevant block of the street demonstrate that the driveway entrance was not directly across the street from the front door of the Miranda home, but rather further north, more in line with the gated driveway along the north side of the Miranda home. The facade of the Miranda home faced east, with the front door located north of its midline. The front door is visible, however, in other photographs introduced at trial, which show the view looking west from about halfway down the driveway.

[Note 18] We note the trial judge's initial unprompted inclination, immediately following the defendant's testimony, that a self-defense instruction would be "appropriate." This prompted protest from the prosecutor, and responsive argument from defense counsel in support of giving the instruction. Ultimately, after hearing closing argument and further researching the question, the judge ruled that he would not give the instruction. Defense counsel objected and made legal argument in support of the instruction.

[Note 19] "Whether a defendant used all reasonable means of escape before acting in self-defense is a factual question dependent on a variety of circumstances, including the relative physical capabilities of the combatants, the weapons used, the availability of maneuver room in, or means of escape from, the area, and the location of the assault. Before that question may go to the jury, however, there must be some evidence that the defendant attempted to retreat or that no reasonable means of escape was available." Commonwealth v. Pike, 428 Mass. 393, 399 (1998), citing Commonwealth v. Maguire, 375 Mass. 768, 772, (1978).

[Note 20] The defendant faults trial counsel for failure to properly investigate his proposed defense. In the affidavit submitted with his motion for a new trial, he stated:

"I requested that [trial counsel] file motions for police reports concerning shootings and weapons stashed in the neighborhood in the year or so before [the victim] was killed (including the shooting at my brother on [that street] by an unknown person two weeks before [the victim] was killed, to which the police responded). [Trial counsel] declined to do so. . . . I requested that [he] obtain and use [the victim]'s criminal record, which the court had ordered produced in May 2008 in response to [my prior counsel's] motion for criminal records. [Trial counsel] did not obtain and use [the victim]'s criminal record."

In his motion for a new trial, the defendant explains in detail how this evidence would have corroborated the reasonableness of his belief that the victim had a gun and posed a real threat to him.

In the affidavit defense counsel submitted along with his motion to withdraw, he reported "explaining to [the defendant] that chasing an unarmed man with a gun and firing two rounds at him, one which causes death, is not self-defense nor is there a legitimate basis for 'necessity.'" This is correct. The discovery that the defendant sought that defense counsel declined to pursue would not have changed this analysis:

"[C]ounsel need not chase wild factual geese when it appears, in light of informed professional judgment, that a defense is implausible or insubstantial . . . as a matter of fact and of the realities of proof, procedure, and trial tactics."

Commonwealth v. Tuitt, 393 Mass. 801, 805 n.2 (1985), quoting Cepulonis v. Ponte, 699 F.2d 573, 575 (1st Cir. 1983). Where defense counsel told the judge, "I've done my due diligence," and none of the evidence the defendant sought could have changed the fact that he never tried to retreat before resorting to use of deadly force, "[c]ounsel's decision to forgo further investigation of the defendant's [proposed theory] was an informed exercise of his prerogative to decide on the defense strategy." Commonwealth v. Kolenovic, 471 Mass. 664, 675 (2015), S.C., 478 Mass. 189 (2017). See Strickland v. Washington, 466 U.S. 668, 691 (1984) (limited extent of defense counsel's investigation of self-defense reasonable to extent based upon reasonable professional judgment).

[Note 21] The defendant's reliance on Commonwealth v. Ortega, 480 Mass. 603 (2018), is misplaced. There, we announced that "[i]f a person is threatened with death or serious bodily injury by an aggressor armed with a firearm, in open space away from cover or safety, it would be unreasonable to impose a categorical rule that requires him or her to be shot in the back in a fruitless attempt to retreat." Id. at 611. Here, in contrast, the defendant was the armed aggressor, any belief that the victim had a gun was purely speculative, and the defendant had multiple opportunities to seek cover and safety.

[Note 22] Although the relief requested in the motion was permission to withdraw or to take on the role of standby counsel, defense counsel expressly requested "guidance from this Honorable Court regarding a breakdown in communication that has occurred with the Defendant as to how to defend this matter."

[Note 23] On April 24, 2013, the court mailed the defendant a copy of a docket entry referencing his motion, stating: "The Court does not act on motions where the defendant has counsel when the motion is filed pro se." During a subsequent final pretrial hearing in his case, the defendant asked to address the court directly; the judge replied that he should speak with his lawyer. After a brief private exchange with the defendant, defense counsel stated, "for the [c]ourt's record," that the defendant had provided him with certain additional motions, but counsel declined to file them, because they undercut the defense strategy counsel had decided to pursue at trial. As the hearing neared an end, the defendant asked counsel to make an oral motion to withdraw. After hearing from both parties, the court explained that, "[t]o the extent [counsel] has not made certain filings, counsel may do that because, in their view, it is simply not helpful to a strategy of the case or that they are frivolous." The court then denied the defendant's motion insofar as it constituted a request for new counsel, and advised the defendant that his counsel was "an extremely experienced and very good counsel" who had filed "thorough papers" on the defendant's behalf.

[Note 24] The defendant reported that he had asked counsel to file motions "to introduce evidence of police reports of firearms found in hidden locations around the vicinity and police reports of shootings that happened in the vicinity a week prior and a shooting that had occurred at my residence." Counsel declined, and instead filed a motion in limine to introduce Wayne's gunshot residue test results "against my wishes not to." The defendant asserted that this was a denial of due process and effective assistance of counsel, and that this was why he had asked counsel to move to withdraw. With respect to the motions the defendant wanted filed, counsel explained: "They were all based on his theory of defense. . . . I was certainly not going to file those motions while having, at the same time, absolutely no anticipation of going down that path on his behalf."

[Note 25] Indeed, at a sidebar conference at trial, the defendant recognized that "trial counsel's cross-examination was excellent, but I still wish to exercise my right to testify."

[Note 26] The defendant also argued that his attorney provided ineffective assistance by failing to move for a continuance or a change of venue due to the then-recent Boston Marathon bombing and by failing to challenge the racial makeup of the jury venire. These issues are without merit and were not raised on appeal.

[Note 27] In Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228, 234 (2004), this court held that "art. 12 provides a defendant with at least the same safeguards as the Sixth Amendment" in terms of the accused's right to counsel. "It is a right upon which the essential element of fairness in the administration of justice depends." Guerin v. Commonwealth, 339 Mass. 731, 734 (1959).

[Note 28] The Supreme Court has not established any precise test to determine whether a particular decision is "tactical" as opposed to "fundamental" in this respect. At least one vocal critic has characterized this "tactical-fundamental dichotomy" as a "vague" and inadequate approach to establishing "reasonable limits upon the right of agency in criminal trials." Gonzalez v. United States, 553 U.S. 242, 256-258 (2008) (Scalia, J., concurring in judgment).

[Note 29] "That is not to say that the defendant can mandate, through his desire to testify, that his attorneys adopt specific trial strategies. Nor do we mean that counsel's actions cannot be in tension with the substance of the defendant's desired testimony: it is permissible for an attorney to adopt trial strategies that effectively argue in the alternative to the thrust of the defendant's testimony. Rather, defense counsel cannot, through their trial actions, reduce their client's constitutional right [to testify] to a nullity." People v. Bergerud, 223 P.3d 686, 702 (Col. 2010).

[Note 30] Although the alibi was highly implausible, defense counsel had no doubt that the defendant sincerely believed it, such that professional ethics rules regarding client perjury were not implicated. See McCoy, 138 S. Ct. at 1510. After the defendant's testimony, during the guilt-phase closing argument, counsel "reiterated that [the defendant] was the killer." Id. at 1507.

[Note 31] For comparison, the Court cited two State supreme court decisions ordering new trials in cases where a defense counsel advanced a guilt-based "defense" over his or her client's protestations of innocence. McCoy, 138 S. Ct. at 1507, citing Cooke v. State, 977 A.2d 803, 842-846 (Del. 2009), cert. denied, 559 U.S. 962 (2010), and State v. Carter, 270 Kan. 426, 440 (2000). Additionally, the Court cited a 2010 decision of the Colorado Supreme Court remanding for further fact finding where, upon denial of a request for appointment of new counsel, the indigent defendant reluctantly had opted to proceed pro se, on a self-defense theory, rather than proceed to trial represented by counsel who planned to advance a mental impairment defense over the defendant's express objection. Id. at 1510, citing People v. Bergerud, 223 P.3d 686, 690-691 (Col. 2010).

[Note 32] As defense counsel recognized, and the defendant himself acknowledged during the in camera hearing, Wayne already had been convicted of murder in the second degree and was serving a life sentence. Furthermore, the defendant had not testified at Wayne's trial that he was the shooter, nor was it in anyway evident how such testimony could benefit Wayne, particularly given this court's decision upholding the jury's general guilty verdict in Wayne's case, upon finding sufficient evidence to convict him as either a principal or joint venturer. See Commonwealth v. Miranda, 458 Mass. 100, 113-114 (2010), cert. denied, 565 U.S. 1013 (2011), S.C., 474 Mass. 1008 (2016) ("[I]t [did] not matter [which brother] shot the victim" where sufficient evidence supported conclusion that defendant knowingly participated in shooting with requisite intent for murder in second degree, either as principal or joint venturer).

[Note 33] The defendant had clearly performed his own, incorrect analysis of the self-defense doctrine, especially as it applies to defense of the home. See, e.g., Commonwealth v. McKinnon, 446 Mass. 263, 267-268 (2006) (open porch and outside stairs of defendant's home, where defendant stabbed and struck victim with baseball bat, held not to constitute "dwelling" within meaning of statutory "castle law" defense, G. L. c. 278, § 8A); Commonwealth v. Carlino, 429 Mass. 692, 697 (1999), S.C., 449 Mass. 71 (2007) ("so-called 'castle' law, which relieves a defendant from the duty to retreat when attacked in his or her own home," not applicable where fatal encounter occurred in defendant's driveway).

[Note 34] The defendant indicates concern that counsel's strategy did not address the Commonwealth's joint venture theory -- that if Wayne was the shooter, the defendant still could have shared the requisite intent for murder. Before he testified, however, the defendant was in a different position from that of his brother. Witnesses had testified to him saying "no" and trying to restrain his brother. His identity as the shooter, as well as his shared intent to kill, were based on the testimony of the neighbor, who saw the brothers converge in the driveway and exchange words prior to the shooting.

[Note 35] Rule 3.1 of the Massachusetts Rules of Professional Conduct, as appearing in 471 Mass. 1414 (2015), provides: "A lawyer shall not . . . assert or controvert an issue . . . unless there is a basis in law and fact for doing so that is not frivolous . . . . A lawyer for the defendant in a criminal proceeding . . . may nevertheless so defend the proceeding as to require that every element of the case be established."

[Note 36] First, counsel offered to withdraw, and allow the defendant to proceed pro se, with or without his assistance as "stand-by counsel." Then, once the defendant rejected that offer, and the trial judge denied the motion to withdraw, counsel attacked the Commonwealth's case based upon the neighbor's doubtful credibility. Throughout this time, defense counsel continued to advise the defendant that testifying was against the defendant's best interest, but emphasized that the final decision was his. And ultimately, when the defendant rejected defense counsel's good advice, counsel responded to the defendant's testimony with a closing argument encompassing alternatives. This step-by-step approach was sensible and not ineffective.

[Note 37] The defendant stated that he did not have the experience to appear pro se before the jury and would not understand the proceedings and rules to follow. "I can't say that I am prepared to go pro se and have standby counsel because it will be detrimental to my case." Instead, he requested another attorney, who would file the discovery motions he believed were necessary for his defense, and another year to prepare.

[Note 38] Notably, the trial judge did not include any information in his colloquy with respect to the risks of testifying in narrative form. This risk also should have been explained to the defendant, either by counsel or the judge. See Commonwealth v. Leiva, 484 Mass. 766, 790 (2020).

[Note 39] As the motion judge highlighted, once the defendant had finished his narrative testimony, defense counsel's associate asked him: "Anything else?" The defendant replied, "No, that's it."

[Note 40] At sidebar defense counsel stated that he did not know exactly what the defendant would say on the stand.

[Note 41] In pertinent part, the text of that rule states:

"In a criminal case, defense counsel who knows that the defendant, the client, intends to testify falsely may not aid the client in constructing false testimony, and has a duty strongly to discourage the client from testifying falsely, advising that such a course is unlawful, will have substantial adverse consequences, and should not be followed. . . . If a criminal trial has commenced and the lawyer discovers that the client intends to testify falsely at trial, the lawyer need not file a motion to withdraw from the case if the lawyer reasonably believes that seeking to withdraw will prejudice the client. If, during the client's testimony or after the client has testified, the lawyer knows that the client has testified falsely, the lawyer shall call upon the client to rectify the false testimony and, if the client refuses or is unable to do so, the lawyer shall not reveal the false testimony to the tribunal. In no event may the lawyer examine the client in such a manner as to elicit any testimony from the client the lawyer knows to be false, and the lawyer shall not argue the probative value of the false testimony in closing argument or in any other proceedings, including appeals."

Mass. R. Prof. C. 3.3 (e).

[Note 42] "Conjecture or speculation that the defendant intends to testify falsely are not enough. Inconsistencies in the evidence or in the defendant's version of events are also not enough to trigger the rule, even though the inconsistencies, considered in light of the Commonwealth's proof, raise concerns in counsel's mind that the defendant is equivocating and is not an honest person. Similarly, the existence of strong physical and forensic evidence implicating the defendant would not be sufficient. Counsel can rely on facts made known to him and is under no duty to conduct an independent investigation." Mitchell, 438 Mass. at 552.

[Note 43] The defendant stated several times, on the record, that he was going to tell the truth. Given that the defendant's determination to pursue a self-defense strategy based upon his personal testimony dates to before trial counsel's appointment, it is unlikely that the defendant changed his story during the course of the representation. Without an affidavit from counsel, there is no way to know what circumstances caused him to become "uneasy." We do note, however, that following the in camera hearing on the motion to withdraw, defense counsel had the opportunity to create a private record, in a closed court room, with only the defendant and necessary court security personnel present (along with the court reporter). That record is uninformative and certainly does not satisfy the requirements of our rule 3.3 (e) doctrine.

[Note 44] There is a difference between preventing the defendant from testifying and placing limitations or restrictions on that testimony. The rules of evidence, and rules such as Mass. R. Prof. C. 3.3 (e), impose limitations or restrictions. They do not deprive the defendant of the right to testify.

[Note 45] More commonly, a defendant faced with such a choice instead elects to proceed with counsel, and courts have reversed based upon the unfair total deprivation of the opportunity to exercise the right to testify. See generally Midgett, 342 F.3d at 325; United States v. Scott, 909 F.2d 488, 493-494 (11th Cir. 1990); United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 120-121 (3d Cir. 1977).

[Note 46] To establish a violation of the Sixth Amendment right to counsel, a defendant must show both (1) that considering all the circumstances, counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficiency prejudiced the defense to the point of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-688, 694. Unless the defendant can demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt," there is generally no basis to find a Sixth Amendment violation. Cronic, 466 U.S. at 659 n.26. Our own test applicable to assess ineffective assistance of counsel, established nearly a decade before the Strickland standard, requires a defendant to show that (1) there has been "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer"; and (2) counsel's poor performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[A] defense is 'substantial' for Saferian purposes where [the court has] a serious doubt whether the jury verdict would have been the same had the defense been presented." Commonwealth v. Millien, 474 Mass. 417, 432 (2016). An informed strategic decision amounts to ineffective assistance "only if it was manifestly unreasonable when made." Commonwealth v. Martin, 427 Mass. 816, 822 (1998). We have further explained that "the prejudice standard under the Massachusetts Constitution 'is at least as favorable to a defendant as is the Federal standard.'" Millien, supra at 431, quoting Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).

[Note 47] Indeed, the error here would satisfy the higher standard of harmless beyond a reasonable doubt. In the absence of any viable self-defense claim, the defendant's armed pursuit of the victim through the alley and around the corner, conclusively established by the defendant's own testimony, compelled the verdict in the instant case. Directed, or undirected, the result would have been the same beyond a reasonable doubt.

[Note 48] The hearing also concerned defense challenges to the results of a skin test for gunshot residue, which the defendant submitted to while at the police station on the night of the shooting. The challenges on appeal do not extend to this additional evidence, which was, in any event, properly admitted.

[Note 49] In Groome we identified four, nonexclusive factors to consider: "(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest." Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001).

[Note 50] The motion judge's finding that one officer told the defendant he was not a suspect was, however, clearly erroneous. At the motion hearing, the officer testified that when he first met with the defendant, as far as he was concerned, the defendant was not a suspect, and he would have characterized the questioning as an interview of a potential witness at that time. The officer also stated that the defendant "was not a suspect" to explain why he did not read the defendant Miranda rights prior to the interview, and why he did not record or offer to record the interview. On the other hand, at the end of the interview, the officer remarked that submitting to the gunshot residue test, which the defendant had twice previously refused, would be "a good way to get [the defendant] off the suspect list." Since the officer posed no further questions to the defendant following this remark, however, it could not have affected the circumstances of the interrogation. Before the defendant submitted to the test, he was free to leave.