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Commonwealth v. Frank1/12/2001
Bristol.
December 5, 2000.
Practice, Criminal , Assistance of counsel, Capital case, Argument by counsel, Argument by prosecutor. Constitutional Law, Assistance of counsel. Intoxication. Evidence, Expert opinion.
Indictments found and returned in the Superior Court Department on October 8, 1987.
The cases were tried before Elizabeth J. Dolan, J., and an amended motion for a new trial, filed on August 25, 1998, was heard by her.
A jury in the Superior Court convicted the defendant of kidnapping and murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. Represented by new counsel, he has appealed from the judgments of conviction and from the order denying his motion for a new trial. His principal argument on appeal is that his trial counsel furnished him with constitutionally inadequate representation by (1) failing to present expert medical testimony that the defendant's intoxication on the night of the killing would have rendered him incapable of forming the specific intent, or engaging in the deliberate premeditation necessary to commit murder in the first degree; (2) allowing the prosecution to exploit, in an unfair manner, the absence of evidence on the defendant's claimed memory loss on the night of the murder; and (3) giving a closing argument that undermined the defendant's intoxication defense and was ineffective in other respects. The defendant also argues that portions of the prosecutor's closing argument were so improper that he was denied his right to a fair trial. We conclude that there is no basis to order a new trial. We also conclude that the defendant is not entitled to relief under G. L. c. 278, ? 33E. Accordingly, we affirm the defendant's convictions.
Based on the evidence in the Commonwealth's case, the jury could have found the following facts. In the early morning hours of October 2, 1987, after an evening of drinking with his sister and friends at various bars and apartments, the defendant joined his sister, and her male companion, for a ride home. The defendant's sister first drove to the apartment of her companion. When the defendant's sister and her companion began kissing in the apartment, the defendant departed and started walking home. On his way, at an intersection near his apartment, the defendant met three friends, Kevin Costa, Steven Costa, and Michael Costa. The men were standing around Steven's automobile. The victim, Edward Cereto, was lying on the ground nearby. The victim was known to the defendant, who had recently cleaned out a storage area under the porch of his apartment building at the request of his landlord, so that the victim, previously homeless, could live there. One of the four men put the victim into the trunk of the automobile. The men then drove to the defendant's apartment, where he obtained his shotgun and several shotgun shells. The men drove to Freetown State Forest, where one of the men forcibly removed the victim from the trunk of the automobile. At least one of the men started hitting the victim. Someone told the defendant to shoot the victim, so the defendant retrieved his shotgun from the automobile, and shot the victim. The defendant then handed the shotgun to one of the other men. The other men took turns shooting the victim. The men then attempted to leave the forest, but first got lost, and ended up driving past the victim before finding a way out. After dropping off Michael and Kevin at their residence, the defendant and Steven returned to the defendant's apartment.
The victim, whose body was discovered later that morning, died of multiple shotgun wounds, three to his head (which were fired at close range), two to his
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