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Ineffective Assistance of Counsel Results in Remand in Drug Case – Commonwealth v. Sepheus

jail cellThe Sixth Amendment to the United States Constitution states in part, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial … and to have the assistance of counsel for his defense.”

The courts have held that this guarantees the defendant in a criminal trial not only the basic right to counsel, but it also guarantees the right to effective assistance of counsel. If you are facing criminal charges, you need an experienced criminal defense lawyer who will fight hard to protect your rights as you go through the criminal court system.

Ineffective Assistance Found Due to Trial Counsel’s Failure to Move to Strike Detective’s Testimony

In the recent case of Commonwealth v. Sepheus, the Massachusetts Supreme Judicial Court ordered a remand after finding that the defendant in a drug case had been denied the effective assistance of counsel at the trial court level. The defendant was charged with possession of cocaine with intent to distribute, waived a jury trial, and was convicted. The appellate court affirmed the conviction. The defendant appealed, arguing, among other things, that his trial counsel was ineffective for not moving to strike part of the testimony of an expert witness offered by the Commonwealth. On appeal, the court agreed and ordered a new trial. According to the court, the attorney who represented the defendant in the trial should have moved to strike a portion of the testimony of the Commonwealth’s expert witness that was non-responsive. Had trial counsel made such a motion, the trial court should have granted both it and a motion for a required finding of not guilty on the “intent to distribute” portion of the indictment.

Specifically at issue was expert testimony by a detective proffered by the Commonwealth with regard to the packaging of the crack cocaine seized from the defendant. Each of the three rocks was inside a separate portion of a sandwich bag, and the detective avered that this was consistent with a street-level crack cocaine sale. On cross-examination, the detective admitted that he had arrested defendants with three of more rocks on simple possession rather on intent to distribute charges and that the amount of crack cocaine in the defendant’s possession could be used in an hour or two by an average user. The defendant’s trial counsel then asked the detective, “And there is nothing about the fact that it’s three rocks that suggests to you that he’s a dealer.”  To this, the detective replied, “The manner in which it was packaged, our information about [the defendant], the area, the observations beforehand, and the way it’s packaged, and the amount.” Rather than ask the trial court to strike the detective’s nonresponsive answer, the defendant’s attorney went on to ask the detective whether he had personally seen the defendant engage in a narcotics transaction. The detective responded that he did not and that he was relying on information from a reliable informant.

Although the defendant failed to raise the claim of ineffective assistance of counsel concerning the informant line of testimony at the trial court level, the issue could still be considered if the factual basis of the claim was indisputably contained within the trial record. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) set the standard for ineffective assistance: “Whether there has been serious incompetency, inefficiency, or inattention of counsel–behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer–and… whether it has likely deprived the defendant of an otherwise available, substantial ground of defense.” Since the defendant’s trial counsel asked the detective questions that called for a direct expression of the detective’s views on the defendant’s guilt, territory into which even the prosecutor could not legally venture, the defendant did not receive the effective assistance of counsel that he is guaranteed under the Constitution. On remand, the Commonwealth had the option of moving for a sentence on the lesser included offense of possession of cocaine or retrying the defendant for possession of cocaine with intent to distribute.

What to do if You Are Facing Criminal Charges

If you have been arrested or indicted in the Cape Cod area, you need an attorney who understands the inner workings of the criminal justice system. The Law Offices of John C. Manoog, III has experienced criminal defense attorneys who will stand by you and make sure that the Commonwealth plays by the rules every step of the way. To schedule an appointment, call (888) 262-6664 or fill out the online contact form located on this website.

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