Posts tagged "1112515"

Commonwealth v. Hampton (Lawyers Weekly No. 11-125-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   13-P-1938                                       Appeals Court   COMMONWEALTH  vs.  TERRANCE HAMPTON. No. 13-P-1938. Hampden.     January 13, 2015. – September 2, 2015.   Present:  Trainor, Rubin, & Sullivan, JJ. Practice, Criminal, New trial, Assistance of counsel, Witness.  Constitutional Law, Assistance of counsel.  Due Process of Law, Assistance of counsel.       Indictments found and returned in the Superior Court Department on August 12, 2008.   Following review by this court, 82 Mass. App. Ct. 1111 (2012), a motion for a new trial was heard by Constance M. Sweeney, J.     Stephanie A. Hoeplinger for the defendant. Cynthia Cullen Payne, Assistant District Attorney, for the Commonwealth.     SULLIVAN, J.  Following an order of remand,[1] a judge of the Superior Court held an evidentiary hearing on the defendant’s motion for a new trial on the ground of ineffective assistance of trial counsel.  The defendant had been convicted of assaulting a correctional officer.  See G. L. c. 127, § 38B.  His defense at trial was that the correctional officer used excessive force and was the first aggressor.  At issue in the motion and on appeal is whether counsel was ineffective in failing to interview a fellow inmate who claimed that he had observed a portion of the altercation, and that the defendant had not been the first aggressor.  The motion judge, who was also the trial judge, denied the motion on the basis that counsel made a reasonable strategic decision, and that the witness was not credible.  We reverse. 1.  Background.  a.  Pretrial investigation by defense counsel.  The defendant was charged with assault and battery on a correctional officer at the Hampden County house of correction in Ludlow.  Before the trial, the defendant told trial counsel that a fellow inmate, Deven Gallop, witnessed the events in question.  Trial counsel filed a pretrial discovery motion to name any persons present during the incident.  The Commonwealth provided a list with the names of the correctional officers, but it did not include Gallop’s name.  Trial counsel accepted the Commonwealth’s representation.  Neither she nor her investigator interviewed Gallop or visited the intake unit where the incident took place. Before jury empanelment, the defendant moved to discharge trial counsel, asserting that she failed to investigate the potential eye witness and was thus ill-prepared to present his defense.  The motion was denied and the case proceeded to trial. b.  The trial.  At trial, the […]


Posted by Massachusetts Legal Resources - September 2, 2015 at 11:34 pm

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