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Commonwealth v. Pavao2/2/1999
iness was a live issue. There was no evidence of a "substantial claim of involuntariness," and there was no error in the Judge's failure to hold a voir dire. Commonwealth v. Harris, 371 Mass. at 470.
2. Ineffective assistance of counsel. The defendant also makes an ineffective assistance of counsel claim based upon defense counsel's failure to request a voir dire on voluntariness or a "humane practice" instruction. To support this claim, the defendant points to the testimony from the first trial, as well as this court's summary of facts from that trial, and argues that this evidence notified counsel that the defendant's intoxication might be important in the second trial. Similarly, the defendant asserts that just as counsel had pursued an inference of intoxication to negate malice, he should have pursued a similar inference of intoxication to show involuntariness.
In order to sustain a claim for ineffective assistance of counsel, "a defendant must establish more than mere error or mistake on the part of his counsel. Rather, a defendant must demonstrate a 'serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defense.'" Commonwealth v. Egardo, 426 Mass. 48, 52 (1997), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant's case was based on self-defense and the portrayal of the defendant as an average law-abiding citizen who happened to be attacked by the victim -- a young, muscular, and intoxicated "punk." Defense counsel elicited testimony that the victim had knocked down both the defendant and Antonio Sousa with one punch each, breaking Sousa's nose and knocking out some of the defendant's teeth. Testimony that the defendant was so inebriated that hours later he was unable voluntarily to communicate with the police would certainly have tended to undermine this sympathetic portrayal. Moreover, defense counsel used the defendant's tearful reaction upon being told by the police officer that the victim had died as evidence of genuine remorse on the part of the defendant. Thus, the tactics employed by defense counsel may be seen as eminently reasonable.
In any event, there is no danger that any ineffective performance by counsel deprived the defendant of an otherwise available ground of defense. There was unequivocal and uncontradicted testimony from one of the police officers that the defendant was not intoxicated and that he understood every question which the officers asked of him. The only evidence suggesting intoxication concerned events which occurred significantly earlier in the evening. Thus, it is highly unlikely that the jury would have found the defendant's statements involuntary, and trial counsel's failure to request a humane practice instruction did not deprive the defendant of an otherwise available ground of defense. " ailing to pursue a futile tactic does not amount to constitutional ineffectiveness." Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 117 S. Ct. 1855 (1997).
Judgment affirmed.
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