Criminal – Murder – Effective assistance

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Where a defendant serving a life sentence for murder in the second degree moved for a new trial, the motion was properly denied because of the defendant’s failure to establish the ineffective assistance of trial counsel.
“[T]he defendant’s primary claim is that counsel unreasonably failed to introduce Poe’s hospital records in evidence. The defendant also faults trial counsel for referring in his opening statement to evidence that he was unable to present, for failing to impeach prosecution witnesses with their criminal convictions, and for failing to request an instruction on the reckless and wanton theory of manslaughter.
“As to each of these claims, we conclude that the defendant has not met his burden to establish both prongs of the test articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974): (1) that there was ‘serious incompetency, inefficiency, or inattention of counsel — behavior … falling measurably below that which might be expected from an ordinary fallible lawyer,’ and (2) that, as a result, the defendant likely was deprived of ‘an otherwise available, substantial ground of defen[s]e.’ We reach this conclusion after independent consideration of the trial record and other documentary evidence, but with deference to the determinations of the motion judge as to the credibility of the witnesses who appeared at the motion hearing: Dr. Ira Kanfer, an expert pathologist called by the defendant, and the defendant’s trial counsel, who was called by the Commonwealth. …”
Commonwealth v. Jackson (Lawyers Weekly No. 11-247-10) (14 pages) (Cohen, J.) (Appeals Court) Motion for a new trial heard by Donovan, J., in Superior Court. Charles W. Rankin and Michelle Menken, both of Rankin & Sultan, on appeal for the defendant; Carolyn A. Burbine for the commonwealth (Docket No. 09-P-220) (Dec. 23, 2010).