Issue Presented
1. Whether the defendant is entitled to a new trial (a) where it is not clear that this court exercised its discretion in allowing the prosecutor to impeach the defendant with his prior murder conviction; (b) where, in impeaching the defendant with his past convictions, the prosecutor improperly cross-examined him at length as to the facts underlying those convictions, including details of his alleged killing of a prosecutor; and (c) where defense counsel's handling of this issue, including her failure to object to any of the improper impeachment, deprived the defendant of the effective assistance of counsel.
2. Whether the prosecutor compounded the error described above by improperly questioning a key defense witness about the sentences imposed and the underlying details in impeaching him with his prior convictions.
Statement Of The Case
On August 29, 1996, a Suffolk County grand jury returned a four count indictment charging the defendant Jeffrey Bly with murder in the first degree (Count 1), armed assault with intent to murder (Count 2), possession of a firearm without a license (Count 3), and possession of ammunition without a license (Indictment No. 96-11204). [R. App. 1-2, 8-10] . [FN1] On September 13, 1996, the defendant entered pleas of not guilty to all four counts. [R. App. 2].
Prior to trial, the parties filed various motions not relevant to the instant new trial motion. [R. App. 2-4].
On April 4, 2000, the defendant filed a motion for individual voir dire of prospective jurors. [R. App. 4-5, 11-17]. After a hearing, this court agreed to question the jurors individually on some subjects, most notably whether they were aware of any publicity involving the defendant. [Tr. 1, 5-21].
Jury selection began on April 4, 2000, and a jury trial commenced before this court on the following day. [R. App. 5]. At the conclusion of the Commonwealth's evidence on April 7, 2000, the defendant filed a motion for a required finding of not guilty. This court denied the motion. The defendant renewed his motion at the close of all of the evidence on April 10, 2000. This court denied the renewed motion. [R. App. 5, 18-19].
On April 12, 2000, the jury returned verdicts of guilty on Counts 1, 3 and 4 and not guilty on Count 2. This court imposed the mandatory life sentence on the murder count, to commence from and after the completion of a sentence imposed on an unrelated case. On Count 3, this court imposed a four and a half to five year sentence, to be served concurrently with the sentence on the murder charge. This court placed Count 4 on file.
The defendant filed a timely notice of appeal on April 25, 2000. [R. App. 6, 23]. The case was entered on the docket of the Supreme Judicial Court on June 1, 2001.
On October 24, 2001, the Supreme Judicial Court stayed the appellate proceedings to permit the defendant to file a motion for a new trial in this court.
Statement Of Facts
A. The Commonwealth's Case
The Commonwealth presented the following evidence at trial:
Ruth Scully Hall works for the Suffolk County District Attorney's office. She creates maps, charts and diagrams for use in the courtroom. She produced maps of the area around 770 Morton Street based on a Boston Redevelopment Authority map. She described various locations, objects, and distances on the maps. At the scene, she measured the height of the porch at 770 Morton Street. It was sixteen and a half feet above the sidewalk. [Tr. 2, 50-54].
Thirty-two year-old Keith Richards knew Lee Simmons, the victim in this case. They had been friends for eight or ten years. Simmons grew up in Dorchester and had three children. Richards also knows the defendant Jeffrey Bly. He would see him around the neighborhood fairly often. Frequently, the defendant would be in the company of a lot of his friends. [Tr. 2, 58-60].
On September 13, 1993, Richards met Simmons on Landor Road. Simmons lived there, as did Richards' girlfriend India Pope. At about 7:45 p.m., they were drinking beer and sitting on their mountain bikes. Richards left to use the bathroom at his aunt's house a few blocks away. When he returned fifteen or twenty minutes later, he found Simmons screaming and crying hysterically. He appeared angry and told Richards he was tired of it. He then explained that the defendant and his friends had jumped him and taken his bike. He said he wanted it back and that he could not take it anymore. He asked Richards for a gun. Richards retrieved his gun from under the back porch at 12 Landor Road. He handed it to Simmons, who fumbled with the safety. His hands were shaking, but when Richards tried to help him, he insisted he knew what he was doing. Richards heard a click and assumed he had disengaged the safety. [Tr. 2, 61-70].
They walked to the corner of Leston and Morton Streets. They saw the defendant. Simmons approached him and said, “What's up. Where is my bike?” When the defendant approached him, Simmons grabbed him by the collar and put the gun to his face. He said, “I'm tired of this. I want my shit back.” The defendant responded, “What are you talking about, yo? Why it had to come to this. Yo, you want your bike back, I give you your bike back.” About eight or nine of the defendant's friends approached Simmons and Richards. Simmons turned to them and ordered them to back up. They did so. After some further conversation about the bike, Simmons let the defendant go so he could retrieve it from the house. The defendant walked toward the house with his friends following him. Simmons and Richards followed them. [Tr. 2, 70-75].
As they prepared to cross Morton Street, Richards asked Simmons to give him the gun, explaining that he did not think Simmons knew how to handle the weapon. Richards believed he could handle himself better than Simmons if they had a problem. As the defendant turned the corner, he began to walk quickly toward 770 Morton Street. Richards and Simmons stopped, and Simmons handed him the gun. They then continued along the right side of Morton Street to Wildwood Street. Richards put the gun in his waist and positioned himself behind two parked cars on Wildwood Street in case anything started. [Tr. 2, 75-81].
At that point, someone ran out of 770 Morton Street and passed a gun to a man behind a parked van. The defendant ran inside the house, and about thirty seconds later, a window opened on the second floor. Richards saw the defendant stick a gun out the window and fire toward Simmons. [Tr. 2, 82-87]. Two men started shooting from the area of the van. Simmons ran toward Blue Hill Avenue, and the defendant aimed his gun at him as he ran. Richards drew the gun and tried to return fire. He attempted to cock the gun and pull the trigger, but nothing happened. He ran up Wildwood Street. The men behind the van chased him, warning that they were going to get him too. He ducked into a back yard. When he made it to an adjoining street, he examined the gun, discovering that Simmons had not pushed the clip in all the way. Richards pushed it in, and a round immediately chambered. He returned to the scene to assist Simmons but changed his mind when he saw a police car drive by. He went back to where he had left his bike and went home. He did not know that Simmons had been shot. [Tr. 2, 87-92].
Richards did not contact the police about what had happened, as he feared what might happen to him if he did. In 1996, the police contacted him. He told them what he knew and later appeared before the grand jury. [Tr. 2, 92-93].
In 1993, Deanna Jones was living in Weymouth and dating a man named Earl Pope. Pope lived at 770 Morton Street in Mattapan in an attic space. He lived there with Comilus Cooper, also known as Bernard. She would visit him there occasionally. Prior to the incident in September of 1993, she had known the defendant for about six months. The defendant was friendly with Pope and Cooper. Jones also knew someone with the nickname Divine, who would hang around with Pope, Cooper and the defendant. [Tr. 2, 117-120].
On September 13, 1993, she went to 770 Morton Street late in the afternoon. She sat on the porch with Pope and Divine talking and drinking beer. During the time she was there, she saw the defendant coming and going. About a half hour before the incident, the defendant brought a bicycle into the house. She had not seen this bike before. Pope and Divine followed the defendant into the house and the three returned to the porch a few minutes later. The defendant appeared excited. Pope said they would be back, and the three of them walked down the street toward Blue Hill Avenue. They returned fifteen minutes later. The defendant went into the house first while Pope and Divine were still on the sidewalk walking toward the house. Jones observed a van parked in front of the house. [Tr. 2, 120-127].
As she sat on the porch, Jones heard several shots fired. They sounded close, but she did not see where they had come from. She did not see the defendant or anyone else firing a gun. She ran in the front door and up the stairs. As she passed the second floor on the way to the attic, the defendant ran out of the front porch area and ran into the second floor living room. She did not see anything in his hands, although she was not looking. At some point, Jones heard Gail Langham, the owner of the house and Pope's aunt. Langham and the defendant were yelling. The defendant, Pope and Divine then came upstairs to the attic apartment. Jones hid in the second bedroom, and Pope came in and joined them. The defendant and Divine were in the first bedroom. Pope told her to say that they were both upstairs during the incident so that neither would have to be involved. [Tr. 2, 127-133].
A short time later, she and Pope joined the defendant and Divine. The defendant said he had fired from the second floor porch. The defendant said that he had taken the bike because the kid owed him money for drugs. [Tr. 2, 134-135]. At some point, the police arrived. She looked out the window and saw somebody lying on the ground. She did not know the victim. The police questioned everyone. She did not tell them everything she had seen because she was afraid and did not want to get involved. At times, she had seen Pope in possession of a gun. [Tr. 2, 135-137].
Sergeant John Tevnan of the Boston Police Department was working in a rapid response unit with Officer Perez on September 13, 1993. At 8:25 p.m., they were called to thee scene of a shooting at the corner of Morton and Wildwood Streets. They arrived in about a minute and observed a man lying on the sidewalk next to a chain link fence. He had been shot in the head. Tevnan checked for a pulse but could not find one. The man was breathing and making gurgling sounds. An ambulance arrived almost immediately. Tevnan saw no one else around. He saw no shell casings or guns in the area. [Tr. 2, 148-154].
At some point, a cab driver named Belony Jean approached him. As a result of their conversation, he had Jean move the cab back to the spot where it was hit by gunfire. He then observed it facing Norfolk street in an eastbound direction. [Tr. 2, 155-161].
On September 13, 1993 at about 8:20 p.m., Robin Deaver was driving with her friend along Morton Street. As they reached the intersection of Wildwood Street, they heard three gunshots. The shots appeared to come from the area of 770 Morton Street. She looked and saw an older woman walking in front of the house. She raised a bag up to her head to protect herself. Deaver and her fried left the area as quickly as they could. They made a U-turn and returned to the area a few minutes later. They saw a young man lying on the ground. They spoke to various police officers. Neither observed anyone fire a weapon that day. [Tr. 3, 7-14].
Belony Paul drove a cab for Red and White Taxi in 1993. On September 13, 1993 at about 8:20 p.m., he was traveling eastbound on Morton Street in Mattapan. In the area of Wildwood Street, to his left, he heard gunfire. He could not recall how many shots he heard, but they were quick. A bullet hit the driver's side door of the cab. Paul dropped off his passenger a short distance away and then drove to the police station. The police directed him to return to the scene. He talked to some officers, and they had him park his cab in the location where it was hit. [Tr. 3, 18-25].
Paramedic Thomas Maciejko described his background and training. [Tr. 3, 28-30]. On September 13, 1993, at 8:32 p.m., he responded to the scene of a shooting at the corner of Morton and Wildwood Streets. He and his partner Dave Wallace arrived six minutes later. They assisted another ambulance crew that had arrived just before they did. The victim had suffered two gunshots wounds, one of which was life threatening, and one of which was not. The more serious wound was to the front of the victim's head; the other was to his left ankle. Maciejko found the victim to be unconscious and not breathing. He began treating him, and they transported him to the Boston Medical Center as quickly as possible. After their initial efforts, the victim appeared to be alive but unresponsive. The only motor response was some seizure activity in the airway. They delivered him to the Emergency Room. Maciejko did not observe any shell casings or weapons in the area around the victim. [Tr. 3, 31-34].
In 1993, Gail Langham lived at 770 Morton Street in Mattapan. Her sister-in-law Chris Downey lived on the first floor, Langham lived on the second floor, and her nephew (Comilus Earl Pope) and brother (Comilus Bernard Cooper) lived in the attic space on the third floor. Langham knew the defendant since he was about ten years of age. He grew up with her brother and nephew. He was at her house every day. [Tr. 3, 37-40].
On September 13, 1993 at about 8:15 or so, she heard gunshots coming from outside. She was in the basement with the gas man, who was trying to fix her hot water heater. She excused herself and went upstairs. As she entered the den, she saw the defendant coming in from the sun porch. She asked him what was going on, and he said nothing. They exchanged words, and they she noticed he was holding a gun. She asked him about the gun. He asked her what gun she was talking about. She cursed at him and asked him what he was doing and what was in his hand. He insisted that nothing was going on and then walked away from her. Langham went into the kitchen. A few minutes later, the police came in. They found the defendant, Pope, Bonilla, and a girl upstairs in the attic. She told the police she did not know what happened. She did not want to get involved because she was afraid. She allowed the police to search the house. [Tr. 2, 40-49].
In 1997, she received a three-way phone call from the defendant through her brother. The defendant wanted her to say that he did not have a gun and that she did not see him with a gun. She said she was not going to do that. A few months later, she told the police about the conversation. [Tr. 2, 50-52].
Detective John Martel of the Boston Police Department Homicide Unit responded to the area in front of 770 Morton Street on September 13, 1993, arriving within two minutes of the initial radio call. He saw the victim on the ground and checked him for vital signs. He did not observe any shell casings or weapons near the victim. He did observe shell casings in front of 770 Morton Street to the left of the stairway as he was facing the house. He observed additional shell casings near a gas company van about thirty to forty feet to the right of the stairway. Sergeant Maloney numbered those casings. He believed that some of the casings were .9 millimeter and some were .380 caliber. [Tr. 3, 72-82].
Martel noted that the window to the outer porch on the second floor was open. He went into the house. In the hallway, he saw a bike. He saw a woman on the stairs between the first and second floors. Martel went up to the attic. He had been in the house before and knew the defendant since about 1990. Other officers accompanied him upstairs, all with their weapons drawn. It was pitch black in the hallway. Immediately to their right when they entered the attic, they observed a hole in the wall covered with plastic sheeting and tape. In the darkness, he saw two people move and ordered them onto the floor. Officer Stratton shined a flashlight onto them. He recognized the defendant and Damien Bonilla. Both were dressed entirely in black. After securing them, the officers continued toward one of the bedrooms where they saw further movement. They flicked on the bedroom light where they observed Comilius Pope and Deanna Jones. The officers patted everyone down and then took them to the kitchen downstairs. [Tr. 3, 83-92].
Bonilla told Martel that as he sat outside on the stoop, some guys came by in dark clothing and started shooting. He did not see their faces. [Tr. 3, 93]. Martel identified a number of photographs of the area in and around the house. [Tr. 3, 94-103]. At some point, he returned to the attic area. One of the officers picked up a screen leading to a crawl space under the eaves. They observed and seized a .380 semiautomatic weapon. Officer Washington took custody of the gun. [Tr. 3, 104-107]. In the front hallway, Martel observed a fragment of a lead bullet. He walked outside, and under the porch, he observed a .9-millimeter handgun. Martel had been to 770 Morton Street prior to this incident. [Tr. 3, 108-115].
Jonathan Stratton, a retired Boston Police officer, worked as a patrol officer in September of 1993. On September 13, at about 8:30 p.m., he responded to the corner of Morton and Wildwood Streets. He and Detective Martel entered 770 Morton Street and made there way up to the attic. They found the area to be dark. They observed people moving and directed them to stop. They secured four people, including the defendant and Damien Bonilla. They moved them downstairs where the lighting was better. At some point, Bonilla stated that at the time of the shooting he was on the front porch. He ducked and then ran inside when the shooting started. He did not state that Earl Pope had fired a weapon on that evening. [Tr. 3, 131-135].
Detective Gus Irby of the Boston Police Department went to 770 Morton Street at about 8:30 p.m. on September 13, 1993. He went into the house and spoke with Crystal Downey, the first floor tenant. He and a number of officers drew their guns and went up the stairs to the attic. In the darkened attic, they found the defendant, Damien Bonilla, Earl Pope, Deanna Jones. Irby later attempted to notify the victim's family of the shooting. [Tr. 3, 137-140].
Detective John McCarthy of the Boston Police Department Homicide Unit, received a call about a shooting at the corner of Morton and Wildwood Streets at about 8:30 p.m. on September 13, 1993. He and Sergeant Detective Spellman went to the Boston Medical Center where the victim Lee Simmons had been taken. They spoke with Dr. Thea James, who advised them that the victim was in grave condition with gunshot wounds to the head and ankle. Detective Hamm joined them. At some point, hospital personnel gave Hamm some crack cocaine that had been recovered from the victim. [Tr. 3, 141-143].
McCarthy went to 770 Morton Street and remained outside. He observed two spent .380 automatic shell casings to the right of the staircase and a third in the middle of the sidewalk directly in line with the middle of the stairs. The window on the right side of the second floor porch was open. Detective Washington took custody of the casings. [Tr. 3, 143-150]. McCarthy observed ten .9-millimeter shell casings on the street in front of 768 Morton Street in a semicircle pattern. He identified photographs of the ballistics evidence. [Tr. 3, 151-155]. McCarthy assisted Detective Washington in packaging the guns in order to preserve any potential fingerprint evidence. [Tr. 3, 156-159].
At some point, McCarthy made up a photographic array, which included the defendant's photograph. He showed that array to Keith Richards. Although Richards had known the defendant for a number of years, he did not select anyone from that array and ultimately made no identification. He identified Bonilla as being at the argument prior to the shooting. McCarthy showed him an array, which included Earl Pope's photograph. Richards did not identify Pope as one of the shooters. [Tr. 3, 159-162].
Detective Carl Washington of the Boston Police Department Ballistics Unit described his background and training. [Tr. 3, 182-184]. He went to the corner of Morton and Wildwood Streets at about 9:00 p.m. on September 13, 1993 to collect and preserve ballistics evidence. He recovered a number of items, including a .380 Davis Industry firearm found in an attic crawl space under the eaves of the house. He removed a magazine with five rounds from this weapon. The gun would ordinarily hold six rounds in the magazine, plus one round in the chamber. He later test fired the weapon and had the five rounds dusted for fingerprints. [Tr. 3, 184-192].
He recovered three .380 shell casings from the ground in front of 770 Morton Street. Those three casings matched the discharged cartridge casings from the two rounds he had test fired. [Tr. 3, 195-199]. He also recovered thirty-five .380 caliber rounds of ammunition from a dresser drawer in an upstairs bedroom. [Tr. 3, 201].
Underneath the porch steps at the side of 770 Morton Street, Washington recovered a .9-millimeter Star automatic pistol, model number 30MI, with the serial number obliterated. The magazine with one round was seated in the gun, and a discharged cartridge casing was lodged in the weapon. The magazine for this type of weapon would ordinarily hold fourteen rounds, and the gun could hold one additional round in the chamber. Washington later test fired this gun. [Tr. 3, 202-208].
In the area in front of 770 Morton Street, Washington recovered ten spent .9-millimeter shell casings. These shell casings matched the casings from the test firing of the a .9 millimeter Star automatic pistol he had recovered. [Tr. 3, 210; Tr. 4, 4-8]. Among the ammunition found in the bedroom drawer were twenty-one .9-millimeter rounds of ammunition head stamped RP for Remington and Peters. A bullet tray was recovered from the same drawer. A discharged cartridge casing was found on the floor next to the dresser. It did not match and therefore was not fired from either of the weapons found at the scene. [Tr. 4, 8-12, 26-28]. One of the spent shells and all of the bullets were given to Detective Hussey for fingerprint testing. [Tr. 4, 14-17].
Washington later recovered two .380 caliber bullets from the Medical Examiner's Office. Based on a comparison of the striations and imperfections on the spent bullets with those on the test rounds, Washington concluded that both of the bullets recovered from the victim's body had been fired from the .380 Davis Industry pistol recovered from 770 Morton Street. [Tr. 4, 18-25]. He examined a spent .9-millimeter bullet that he found in the hallway of the house, but it was too damaged to analyze the lands and grooves. [Tr. 4, 29-30]. He examined a bullet hole in a taxicab, but he did not retrieve any bullets or guns from that area. [Tr. 4, 31-35].
Detective William Hussey of the Boston Police Department Latent Print Unit described his background and training. He also described various methods for retrieving fingerprint evidence. [Tr. 4, 83-91]. Shortly after the shooting, Hussey was given a .9-millimeter Star automatic firearm and ten discharged cartridge casings. He did not find sufficient ridge detail to identify any prints on these items. He also examined twenty-five .9-millimeter rounds and an additional discharged cartridge casing. Again, he could find no identifiable fingerprints on these items. [Tr. 4, 91-96]. Finally, he examined a .380 automatic pistol. He recovered two fingerprints from that item, one from the number two finger of the defendant, and one from his right thumb. [Tr. 4, 97-114].
Dr. George Kury, a medical examiner, described his background and training. [Tr. 4, 126-128]. On September 15, 1993, he performed an autopsy on Lee Simmons. During his external examination, he observed two gunshot entry wounds. The first was located on the left anterior portion of the forehead. The second was on the side of the left leg. The bullet from the head shot perforated the skull, moved through the left frontal lobe of the brain, crossed the midline of the brain, perforated the right parietal area, passed through the back of the skull, and lodged under the scalp on the right side. The trajectory went from left to right, front to back and downward. Kury recovered the bullet. [Tr. 4, 128-139]. The bullet from the shot to the leg went from left to right, front to back, and down. Kury recovered the bullet from under the skin on the opposite side of the leg. [Tr. 4, 141-142].
Kury concluded that the victim died from gunshot wounds to the head and left leg. [Tr. 4, 143-144].
B. The Defendant's Case
The defendant presented the following evidence at trial:
Damien Bonilla lived at Wallens Ridge State Prison in Virginia after his conviction for capital murder. Before he went to Virginia, he had been living in the Roxbury area and had known the defendant for about nine years. He stayed at 770 Morton Street some of the time. On September 13, 1993, at about 7:00 p.m., he was on Blue Hill Avenue with Comilus Pope and Deanna Jones. He was drinking beer, but they were not. At some point, the defendant came around the corner by himself and said that Lee Smith was around the corner. Bonilla, Pope, and Jones accompanied the defendant to Morton Street. Smith came around the corner with another man, approached the defendant, grabbed him by the throat, and put a gun to his head. He told the defendant, “I want my bike.” When Bonilla approached them, Smith pointed the gun at him and told him to back up. Smith turned back toward the defendant and again demanded his bike. The defendant agreed to get his bike, and walked off toward 770 Morton Street. As Bonilla followed him to the house, the defendant turned to Smith and said, “I'll get your bike, but you can't come back here.” [Tr. 5, 4-9, 20].
When the defendant reached the porch, Bonilla heard a gunshot. He turned and pulled his .9-millimeter pistol from his waste. He was next to a gas company van. Pope, who was slightly in front of the van also drew his gun. Both started shooting. He did not see what kind of weapon Pope was using. At some point, he handed Pope a second gun-a .44. The gunfire lasted ten to fifteen seconds. Bonilla did not see the defendant while the shooting was going on. Deanna Jones was on the porch and had dropped to the floor. She was not hit, however. Bonilla went inside, he saw the defendant heading up the stairs and followed him. Jones and Pope followed them upstairs. When they reached the second floor, Bonilla went to the porch, opened the window, and looked outside. [Tr. 5, 9-14].
Bonilla walked through the kitchen past Gail Langham. As Pope and Jones headed toward the attic, he went out the back door and downstairs. He threw his .9-millimeter pistol underneath the porch and then went back upstairs. He joined Jones, Pope, and the defendant in the attic. Bonilla looked out the window and saw Simmons lying on the ground. He retrieved some marijuana from the dresser drawer and rolled a joint. Everyone there smoked it. The police arrived about ten minutes later and brought them all downstairs. When they questioned Bonilla on the second floor porch, he said that they were walking down the street when someone came out of nowhere and started shooting. He told the same story in 1994 when the police interviewed him at South Bay Correctional Center. In 1996, the police talked to him again in Norfolk City Jail in Virginia. He spoke to them four times and eventually told them he had lied. He told them the truth about what had happened, including his involvement in the shooting. He did not speak to the police after 1996. [Tr. 5, 14-23].
Twenty-five year old Jeffrey Bly resided at Cedar Junction. At the time of trial, he was serving a life sentence for murder. On September 13, 1993, he went to 770 Morton Street after school at about 2:00 p.m. He hung out with some friends on Theodore Street. At some point that day, he saw Lee Smith inside a pizza shop. Smith's bike was parked in front. The defendant jumped on the bike and rode off. Smith ran out of the pizza shop said, “Give me back my bike, Jeff, give me back my bike.” The defendant ignored him and rode the bike to Wilcox Street. He parked it there and shot craps with some guys who hang out there. After an hour or two, he rode back to Theodore Street and parked the bike in an alley. The bike stayed there for a few hours. The defendant later rode back toward Blue Hill Avenue, intending to purchase some marijuana. On the way there, on Orlando Road, Smith saw him and ran after him, asking him to return his bike. The defendant assured him he would be right back and asked him to calm down. He rode to Evelyn Street but could not find anyone selling marijuana. He returned to 770 Morton Street and carried the bike up to the second floor living room. [Tr. 5, 67-71].
After securing the bike, the defendant walked outside and then up to Blue Hill Avenue. He saw Earl Pope and Divine. He hung around them. He told Divine that Simmons had been chasing him. After a few minutes, he headed back toward 770 Morton Street. When he reached Leston street, he saw Simmons and Richards approaching from the opposite direction. They met at the corner of Leston and Morton Streets. Simmons pulled out an automatic pistol and said, , “Yo, where is my bike, where is my f-ing bike at?” The defendant told him to calm down, but Simmons put the gun to his head. He again demanded to know where his bike was. He grabbed the defendant by the hood of his sweatshirt, pressed the gun against his head, and continued to demand his bike. As some of the defendant's friends approached them, Simmons pointed the gun at them, and he and Richards told them to back off. Simmons said, “Yo, all I want is my bike, man, just give me my bike, man.” The defendant assured him that he would give him the bike. He tried to walk, but Simmons yanked him back by the hood and demanded to know where he was going. When the defendant explained that he was going to retrieve the bike, Simmons let him go. [Tr. 5, 71-76].
The defendant crossed the street and headed toward 770 Morton Street. He saw Simmons and Richards walking in the same direction across the street. Also present were Comilus Pope, Divine, Gus, and Courtney Jones. At that point, he was not aware that anyone other than Simmons had a gun. Divine and Pope exchanged words with Richards. The defendant passed a gas company van and then went up the stairs and into the house. Deanna Jones was on the porch and the defendant was in the front hallway when he heard the first gunshot. Divine and Pope were in front of the van at that point. The defendant heard the first shot hit the siding of the house. He ran upstairs to the porch. He stepped out but did not go all the way out. He saw two or three flashes coming at him from across the street. When he heard bullets hit the side of the house, he ran inside. He met Jones, who was just coming up the steps and was screaming about the shooting. He followed her up the steps to the attic. Jones and the defendant went into Cooper's room, and Pope came up the stairs a second or two later and joined them. Divine came up the steps all excited. The defendant tried to calm everyone down. Pope tried to go into a small storage area accessible from the bathroom. He hit his head on the ceiling. At that point, the defendant saw a chrome .380 pistol. The defendant had seen him with this gun before; it was one of four of five guns in the house at the time. Pope went into the storage area and came right back out. Divine looked out the window and warned them that the police were there. [Tr. 5, 76-83].
A few minutes later, the police entered the house and had everyone get on the floor. The police secured the area, brought everyone downstairs, and questioned them. The police arrested them on an outstanding warrant. [Tr. 5, 84-86].
After they indicted him for the murder, he was speaking with Comilus Cooper on the phone. Cooper made a three-way call to his sister Gail Langham. He asked her why she lied to the grand jury. She said she didn't know what to do, that the police started talking about indicting her for having a gun in her house. He told her that when she came to court to just tell the truth. She said she would. [Tr. 5, 87-88].
Argument
I. The Defendant Is Entitled To A New Trial Where (A) It Is Not Clear That This Court Exercised Its Discretion In Allowing The Prosecutor To Impeach The Defendant With His Prior Murder Conviction; (B) The Prosecutor Improperly Impeached The Defendant With His Past Convictions By Cross-Examining Him At Length As To The Facts Underlying The Convictions, Including Details Of His Alleged Killing Of A Prosecutor; And (C) Defense Counsel's Handling Of This Issue, Including Her Failure To Object To Any Of The Improper Impeachment, Deprived The Defendant Of The Effective Assistance Of Counsel
Under Mass. R. Crim. P. 30(b), 378 Mass. 900 (1979), “[t]he trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done.” Commonwealth v. Russin, 420 Mass. 309, 318 (1995); Commonwealth v. Grace, 397 Mass. 303, 305 (1986). At the start of her direct-examination of the defendant, defense counsel brought out the fact that at the time of trial the defendant was serving a life sentence at MCI Cedar Junction for murder. [Tr. 5, 67]. Counsel apparently made a tactical decision to bring out the prior conviction anticipating that the Commonwealth would use it to impeach the defendant. See Commonwealth v. Carter, 429 Mass. 266, 268 (1999). However, at no point prior to or during trial did this court actually rule on the admissibility of the prior convictions. Thereafter, the prosecutor cross-examined the defendant as to the prior murder conviction, bringing out not only that the victim in that case was a prosecutor, but exploring the facts underlying that conviction. The prosecutor also attempted to use that conviction, as well as two other convictions, not just for impeachment purposes, but as substantive evidence of the defendant's guilt on the charged offenses. To the extent that trial counsel failed to secure an evidentiary ruling prior to presenting this evidence and failed to object to the prosecutor's excesses, she deprived the defendant of the effective assistance of counsel. Moreover, the defendant was deprived of a fair trial to the extent that this court failed to exercise its discretion in determining the admissibility of these convictions and failed to curb the prosecutor's excesses. The defendant contends that justice has not been done and that he is entitled to a new trial.
A. The Impeachment
After defense counsel brought out the fact of the defendant's murder conviction during her direct-examination of her client, the prosecutor picked up on the theme at the start of his cross-examination. However, instead of limiting his inquiry to the fact that the defendant had been convicted, the prosecutor explored the facts underlying that conviction. In particular, he brought out the fact that the defendant had been convicted of killing Paul McLaughlin, a prosecutor who had been prosecuting the defendant on other charges. He questioned the defendant as to whether he had committed the McLaughlin murder, suggesting that his denial of guilt were suspect in view of his conviction. He attempted to show that in the prior case, the defendant had denied his guilt, yet was convicted, suggesting that his denial of guilt in the present case should be similarly disregarded. He also brought out that the defendant had been convicted of armed robbery and carjacking, and that with the sentences on those charges and the murder charge, he was never getting out of prison.[FN2]
B. This Court Should Have Exercised Its Discretion Prior To Admitting Evidence Of The Defendant's Prior Convictions
G.L. c. 233, § 21 permits the use of prior criminal convictions to impeach a witness, including the defendant. Commonwealth v. Drumgold, 423 Mass. 230, 249 (1996). “The rationale is that 'a defendant's earlier disregard for the law may suggest to the fact finder similar disregard for the courtroom oath.'” Commonwealth v. Houston, 430 Mass. 616, 623 (2000), quoting Id.
“The decision whether to admit evidence of prior convictions to impeach a witness involves an exercise of discretion by the judge” in which “[t]he judge must balance the danger of unfair prejudice which can result from the admission of evidence of prior convictions against the probative value of the evidence for the purpose of impeachment.” Commonwealth v. Drumgold, 423 Mass. at 249. See Commonwealth v. Leftwich, 430 Mass. 865, 869-870 (2000). Impeachment with “[a] conviction of a crime similar to the crime for which a defendant is on trial is particularly problematic” and requires care in the exercise of discretion. Commonwealth v. Carter, 429 Mass. at 269; Id. at 250.
“[I]t is the duty of the judge to exercise [discretion], and it is error as a matter of law to refuse to exercise it.” Commonwealth v. Manning, 47 Mass. App. Ct. 923 (1999), quoting Commonwealth v. Knight, 392 Mass. 192, 194 (1984) and Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1982).
In this case, the record fails to disclose any exercise of discretion on the part of this court. [FN3] While this court's failure to address the issue is no doubt attributable in part to trial counsel's failure to file a motion in limine (addressed more fully below), it was ultimately this court's call as to whether to admit the defendant's prior convictions. See Commonwealth v. Johnson, 431 Mass. 535, 541 (2000); Id.
This court's failure to consider the admissibility of the defendant's prior convictions was particularly critical. One of those offenses was identical to the charged offense-first-degree murder-and the other two involved crimes of violence. There was certainly a basis to exclude the murder conviction and perhaps the other two as well. See Commonwealth v. Carter, 429 Mass. at 269. When viewed on its own or together with the errors discussed below, this court's failure to exercise its discretion in these circumstances deprived the defendant of a fair trial. Commonwealth v. Rossi, 19 Mass. App. Ct. 257, 259 (1985) (impeachment of the defendant with convictions for three similar crimes created a substantial risk of a miscarriage of justice).
C. The Prosecutor's Inflammatory And Highly Improper Exploration Of The Details Of The Prior Convictions Deprived The Defendant Of A Fair Trial
Assuming it was proper to impeach the defendant with his prior convictions, the prosecutor's inflammatory and highly improper exploration of the details of those offenses went far beyond the bounds of propriety.
“The general rule is that, when a record of a witness's conviction of a crime has been introduced to impeach him, the conviction must be left unexplained.” Commonwealth v. McGeoghean, 412 Mass. 839, 843 (1992). See Commonwealth v. Maguire, 392 Mass. 466, 471 n. 10 (1984); Lamoureux v. New York, N.H. & H.R.R., 169 Mass. 338, 340 (1897); Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999); Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 495 (1999). “The guilt or innocence of the witness cannot be revisited, and the jury should not be distracted by the collateral matter of the witness's prior crimes.” Id.; Lamoureux v. New York, N.H. & H.R.R., 169 Mass. at 340; Commonwealth v. Donovan, 17 Mass. App. Ct. 83, 87 (1983).
In this case, the prosecutor introduced extraneous details of the past convictions that were clearly calculated to inflame the jurors. Prior to trial, this court and the parties had made a calculated effort to keep this information from the jury. During jury selection, this court dismissed any juror with more than a passing knowledge of the identity of the victim of the earlier crime or of the circumstances surrounding his killing. This court and the parties also withheld any reference to the defendant's gang affiliation. By introducing the name of the victim of the earlier killing, his occupation, and the fact that he had been prosecuting the defendant on the armed robbery and carjacking charges, the Commonwealth introduced a highly toxic element that the jurors were not likely to have ignored. Appellate courts have long warned against the introduction of extraneous matters likely to “induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented.” United States v. Pulido, 69 F.3d 192, 201 (7th Cir. 1995). See Commonwealth v. Kent K., 427 Mass. 754, 759 n. 6 (1998); Commonwealth v. Gordon, 422 Mass. 816, 831 (1996); Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 10-11 (2000); Commonwealth v. Awad, 47 Mass. App. Ct. 139, 145-146 (1999). Introduction of such evidence may cause “the jury to stray from neutral assessment of the evidence” and decide the case on purely emotional grounds. Commonwealth v. Riberio, 49 Mass. App. Ct. at 10; Commonwealth v. Worcester, 44 Mass. App. Ct. 258, 263-265 (1998). Where the details of the prior offenses had no bearing on the charged offense, their introduction was error. Compare Commonwealth v. Francis, 432 Mass. 353, 358-359 (2000) (it was error for the judge to allow the prosecutor to question the defendant about his alleged unlawful possession of a firearm; its relevance to the charges against the defendant was tenuous and was substantially outweighed by its potential to suggest the defendant's criminal propensity). Contrast Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001) (defendant's threat to kill arresting officer properly admitted where it was relevant to his state of mind).
Moreover, the Commonwealth's “use of [the] prior conviction, admitted under G.L. c. 233, § 21, in a substantive sense rather than solely to impeach the defendant's credibility was . . . a prosecutorial error.” Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 759 (1997). The prosecutor's questioning went well “beyond the idea that a person who has been convicted of a crime is for that reason alone less credible.” Id. at 763. In effect, the prosecutor sought to show that the defendant was factually guilty of the earlier murder, that his denial of guilt of that murder had been shown to be false by virtue of his conviction, that his denials of guilt in the present case were similarly false, and that because he had committed murder before (especially the murder of someone prosecuting him for another serious offense) he was likely to have committed the charged offenses.
Finally, the introduction of the sentences imposed as a result of those prior convictions was error. Commonwealth v. Kalhauser, 52 Mass. App. Ct. 339, 342 (2001); Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, 781 (1999). “The length of the sentence, the conditions under which served, and so on are not the defendant's conduct but an uncertain sequel.” Id. “The mention of the sentence has the potential to cause unfair prejudice to the witness by inviting the jury to speculate about the details and seriousness of the conviction and consider the conviction for reasons other than credibility.” Id. at 343. In this case, the jury had heard that the defendant was serving a life sentence on the prior conviction, but the prosecutor pointed out that it was without the possibility of parole. [FN4] He also brought out that a judge had imposed ten to fifteen year and five to seven year sentences for the other offenses and had ordered those sentences to run from and after completion of the life sentences. In doing so, the prosecutor communicated to the jurors that in the view of the sentencing judges, a simple life sentence was not sufficient punishment for the defendant's past crimes. In effect, the prosecutor invited the jurors to decide the case not on the facts before them, but on the fact that the judges in the past cases had found the defendant to be beyond rehabilitation.
The errors had to have prejudiced the defense. While the charged offenses were certainly serious, moments before the killing, the victim in this case had grabbed the defendant by the throat and threatened him with a gun. His shooting was tragic and senseless, but it was not likely to provoke the sense of outrage that the assassination of a prosecutor would provoke. Contrast Commonwealth v. Johnson, 431 Mass. 535, 543 (2000) (improper impeachment harmless where the defendant, who was charged with assault with intent to commit rape, was impeached with a conviction for operating an uninsured motor vehicle, which would not have inflamed the jurors). The error deprived the defendant of a fair trial and entitles him to a new trial. See Commonwealth v. Kowalski, 33 Mass. App. Ct. 49, 51 (1992) (introduction of extraneous material during impeachment with prior convictions created a substantial risk of a miscarriage of justice).
D. This Court's Limiting Instruction Did Not Cure The Prejudice From The Improper Impeachment, But To Some Degree Made Matters Worse
While this court attempted to give a curative instruction shortly after the improper impeachment, that instruction was rather bland and did not address all of the problems with the prosecutor's cross-examination. [FN5] This court told the jurors, in effect, to disregard the identity of the victim of the earlier killing and to only use the information insofar as it affects the defendant's credibility. This court did not, however, tell them to disregard the details of the past offenses or the information regarding the sentences imposed. See Commonwealth v. Jackson, 45 Mass. App. Ct. 666, 670-672 (1998) (improper impeachment of sole defense witness created a substantial risk of a miscarriage of justice in the absence of appropriate limiting instructions). Contrast Commonwealth v. Francis, 432 Mass. at 359 (judge's curative instructions specifically and forcefully addressed errors in improper impeachment).
Moreover, a portion of the initial instruction actually made matters worse. This court told the jurors that they had “heard some evidence offered in this case to the effect that the defendant said that he was presently incarcerated for murder and there were some other crimes which he acknowledges having committed.” [Tr. 5, 101]. (emphasis added). While the defendant acknowledged that he had been convicted of the past crimes, he specifically denied that he had committed those crimes, noting that they were on appeal. [Tr. 5, 91]. The mistaken instruction may very well have suggested to the jurors that the court had information regarding the circumstances of the past convictions which contradicted the defendant's denials. Compare Commonwealth v. Johnson, 435 Mass. 113, 120-122 (2001) (erroneous and misleading jury instruction created substantial likelihood of miscarriage of justice; Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7 (2001).
This court gave an additional limiting instruction in its jury charge. That instruction again directed the jurors only to consider such convictions as to credibility and not to draw an inference of guilt by virtue of the convictions. This court further instructed them not to be inflamed by the subject matter of the prior convictions. Once again, however, the jurors were not told to disregard the details of the past convictions or the sentences imposed. [Tr. 6, 33-35].
E. The Defendant's Counsel Deprived Him Of The Effective Assistance Of Counsel To The Extent That She Failed To Seek A Pretrial Ruling On The Prior Conviction, Failed To Challenge The Improper Impeachment, And Failed To Object To The Erroneous Curative Instruction
As noted above, trial counsel apparently brought out the defendant's murder conviction in anticipation that he would be impeached with that conviction on cross-examination. However, there is no indication on the record that this court had ruled the murder conviction admissible, nor did defense counsel register an objection to the use of that conviction for impeachment purposes. Even if there had been some reasonable basis for her decision to bring out the defendant's murder conviction, there was no reasonable basis for her failure to object to the prosecutor's exploration of the details of the past convictions. Counsel also should have objected to the deficiencies in the curative instructions. Commonwealth v. Peloquin, 52 Mass. App. Ct. 480, 482-484 (2001); Commonwealth v. Simmarano, 50 Mass. App. Ct. 312, 314-317 (2000). Her failure to object or otherwise address any of these points cannot be explained as a tactical or strategic decision. [FN6] See Commonwealth v. Brookins, 33 Mass. App. Ct. 626, 633 (1992), s.c. 416 Mass. 97 (1993).
Counsel's omissions amounted to “serious incompetency, inefficiency, or inattention of counsel . . . behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer . . . [that] has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Johnson, 435 Mass. 113, 123 (2001); Commonwealth v. Barrett, 418 Mass. 788, 796 (1994). They violated the defendant's rights under Article 12 of the Massachusetts Declaration of Rights, as well as the Sixth and Fourteenth Amendments to the Federal Constitution. See Commonwealth v. Urena, 417 Mass. 692, 695-696 (1994); Lockhart v. Fretwell, 506 U.S. 364, 369-370 (1993); Kimmelman v. Morrison, 477 U.S. 365, 373-375 (1986); Strickland v. Washington, 466 U.S. 668 (1984).
Her handling of the defendant's trial entitles the defendant to a new trial.
II. The Prosecutor Compounded The Error Described Above By Improperly Questioning A Key Defense Witness About The Facts Underlying His Prior Convictions
Damien Bonilla, the only witness to testify on behalf of the defendant, other than the defendant himself, provided important testimony tending to exculpate the defendant. As expected, the prosecutor impeached him on cross-examination with his guilty plea in Virginia on two counts of conspiracy to commit armed robbery; two counts of conspiracy to commit abduction; two counts of abduction; one count of aggravated and malicious wounding; two counts of robbery; and one count of capital murder. [Tr. 5, 24-26]. Once again, however, the prosecutor went beyond the scope of proper impeachment, questioning Bonilla as to the sentences imposed and the circumstances of the past offenses. Whether viewed on its own, or together with the errors described above, the improper impeachment deprived the defendant of a fair trial. The error entitles the defendant to a new trial.
The prosecutor began his cross-examination of Bonilla by asking him how many life sentences he was currently serving. Bonilla answered, four. The prosecutor pointed out that those sentences were consecutive. [Tr. 5, 24]. He then went through each conviction one by one, noting the sentence imposed on each count, noting that each sentence was imposed consecutively, and noting that three of the life sentences did not carry the possibility of parole. [Tr. 5, 24-26]. He pointed out four times that Bonilla was never getting out of prison. [Tr. 5, 24, 27, 28]. Over defense counsel's objection, he brought out that Bonilla had pled guilty in order to avoid the death penalty by lethal injection. [Tr. 5, 27-28]. As discussed more fully above, Bonilla's convictions were admissible solely as to his credibility. Evidence of the sentences imposed-in this case, four consecutive life sentences, followed by consecutive sentences of eighty years-carried a strong potential to distract the jurors and may very well have led them to consider the convictions for reasons other than credibility. See Commonwealth v. Kalhauser, 52 Mass. App. Ct. at 342-343; Commonwealth v. Ortiz, 47 Mass. App. Ct. at 781.
The prosecutor compounded the error by questioning Bonilla as to the facts underlying the past convictions. He brought out the fact that Bonilla had wounded two people using a knife, a hammer, duct tape, and bleach. [Tr. 5, 25-26]. He also characterized Bonilla's conduct as “torturing” those two people. [Tr. 5, 26]. Again, the details of the prior convictions should not have been admitted. Commonwealth v. McGeoghean, 412 Mass. at 843.
Bonilla's credibility was crucial to the defense. See Commonwealth v. Kowalski, 33 Mass. App. Ct. at 51. To the extent that the improper impeachment caused the jurors to reject his testimony, it deprived the defendant of a fair trial. Id. Further, to the extent that trial counsel allowed the improper impeachment by failing to object, her omission deprived the defendant of the effective assistance of counsel in violation of his rights under Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution. The defendant should be granted a new trial.
III. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that the judgment be reversed and that he be granted a new trial.
Respectfully submitted,
Jeffrey Bly,
By his attorney,
Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800
Assisting on the brief:
Sarah Smegal, Legal Intern
[FN1] Citations to the record appendix attached to this memorandum will be referred to as “R. App.”, followed by the page number on which the cited material appears. Citations to the trial transcript will be referred to by volume number, followed by the page number.
[FN2] The exchange between the prosecutor and the defendant was as follows:
Q (By Mr. Coffey) Mr. Bly, Ms. Stanley asked you
where you're currently residing, is that right?
A Yes.
Q And where is that?
A MCI Cedar Junction.
Q For what?
A Murder.
Q For murder, you were convicted of murder, am
I right?
A Yes.
Q Who did you kill?
A I didn't kill anyone.
Q Who were you convicted of killing?
A Paul McLaughlin.
Q Who is he?
A District Attorney.
Q Someone who was prosecuting you before, right?
A Yes.
Q And you were convicted of that?
A Yes.
Q First-degree murder?
A Yes.
Q Serving a life without parole sentence for that,
am I right?
A Yes.
Q And you claim today you did not commit that murder,
is that your testimony?
A Absolutely.
Q And, of course, you did not commit the murder on
September 13, 1993, is that right?
A Yes, sir.
Q So you're doing a life without parole sentence right
now, is that correct?
A Yes.
Q That's, of course, after you finish your ten to
fifteen year sentence at MCI Cedar Junction
for armed robbery, correct?
A Yes.
Q And your five to seven year sentence for car
jacking, am I correct?
A Yes.
Q So you're in prison for a couple of different
unrelated matters, am I right?
A Yes.
Q And you're never getting out of prison, am I right?
A Well I like to think so. Those cases are under
appeal.
Q Because you're innocent of McLaughlin's murder, yet
you were convicted of it?
A Yes.
Q And, of course, you're innocent today of Simmons'
murder, am I right?
A Yes.
[Tr. 5, 89-91].
Shortly thereafter, the prosecutor noted the differences between the defendant's testimony and the testimony of various prosecution witnesses. He then questioned the defendant as to whether Keith Richards was lying [Tr. 5, 96], whether Deanna Jones was lying [Tr. 5, 96], and whether Gail Langham was lying. [Tr. 5, 97]. The following exchange then took place;
Q Everyone is lying except you, the guy who is doing
life without parole for killing Paul McLaughlin?
A I didn't kill Paul McLaughlin, sir.
[Tr. 5, 97].
Finally, after questioning the defendant as to whether he fired the murder weapon or any other gun while at 770 Morton Street, the prosecutor asked the defendant:
Q How was McLaughlin killed?
[Defense Counsel]: Objection, Your Honor.
The Court: Sustained.
[Tr. 5, 99].
[FN3] There is some discussion regarding impeachment prior to jury selection. However, that discussion appears to be limited to the expected impeachment of Bonilla. This court indicated that its obligation would be to give a limiting instruction. This court did not mention exercising its discretion with regard to Bonilla's convictions, and there is no mention of impeaching the defendant with his past convictions. [Tr. 1, 8-13].
[FN4] The jurors were never informed that the sentence imposed, and the fact that there was no possibility of parole, were mandatory terms.
[FN5] This court instructed the jurors as follows:
Incidentally, while they're reading that, you heard some evidence offered in this case to the effect that the defendant said that he was presently incarcerated for murder and there were some other crimes which he acknowledges having committed.
The only basis for allowing that information into evidence is for your to have to use in terms of whether or not you want to believe the credibility of this witness based on the fact that he has been previously convicted of other crimes.
It is not offered for any other reason but for that limited purpose, and who he is accused of having - who was the subject matter of his convictions is irrelevant to this case and you're not to be inflamed by or affected by the fact that a particular person or persons were the subject matter of his convictions.
You are not to in any way consider who the subject of those convictions may have been in determining any issue in this case.
[Tr. 5, 101-102].
[FN6] As noted in the attached affidavit, the undersigned counsel spoke with the defendant's trial counsel. Trial counsel indicated that she did not file a motion in limine to exclude prior convictions because a similar motion had been denied in the earlier trial and she assumed that this court would rule similarly in this case. She further stated that she had no tactical reason for her failure to preserve this issue for appeal or for her failure to object to the improper aspects of the prosecutor's impeachment and realized in retrospect that she had made a mistake by failing to do so. Trial counsel agreed to provide the defendant with an affidavit to that effect, but since her initial conversation with the undersigned, she has failed to respond to letters and telephone calls. While her affidavit would certainly offer helpful insight into her handling of the issue, the absence of an affidavit does not change the result. Her affidavit would have only confirmed what was abundantly clear from the record-i.e., that counsel had no tactical reason for failing to object or for not taking any steps to preserve the issues raised herein.