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I wonder if anyone thinks a 150 lb male teacher should be allowed to stomp an 80-90 lb high school girl who tries to jack up her grade?

I had to identify what was left of my best friend, because of a skank like her. Screw her!

I still don't agree with the handling of the situation. The officers bungled this like Obummer does about everything he touches. If two "men" can't handle this smaller woman, they need to stock shelves at WallyWorld.

I tend to agree with most of what you said. It seems pretty evident that if you were very experienced, you pretty much know whether she's drunk or not. Stuff her and haul her asss to the stationhouse and sort it out there instead of engaging in all the drama. With that many personnel, a couple of officers could have waited there with the kids until somebody came to pick them up or dropped them off at the house if there were people there to care for them. Just too much sideshow drama running up supposed "charges" and letting her grab for balls that probably never were there in the first place.

sorry about your friend. We all tend to view the world through the lens of our own experiences. Still, that does not give the police carte blanche to abuse and brutalize Citizens.

I absolutely agree with you.

Any man (and those cops are not men) that abuse women or children need to be de-balled.

By a decision in a court case that just took place (Zimmerman).

That women could have shot those cowards in self defense. Because she was in fear for her life for banging her head on the ground.

disgusting! no excuse for that

I wounder if those cops can look their Moms in the eyes, when she is thinking, what if a cop would do that to me.

I wounder if those cops can look their Dads in the eyes, when he is thinking, I did not raise you to abuse women.

I wounder if those cops can look their daughters in the eyes, when they are thinking, why would Dad do that to a 100 pound women.

I wounder if those cops can look their wifes in the eye, when they are thinking, is he going to do that to me when we argue.

They are just cowards.

Serious question: do any of the active and former LEOs here really have trouble understanding why so many people loathe and fear them?

Must be a bunch of pussies on the campfire. The lady was acting like a stupid bitch, and got what was coming to her. She could have just played it cool, and gotten her DUI, and that's it. Acting like a complete fool hurts, and she found out the hard way. A woman like that is a disgrace to her family, and her husband.

If pus*y is defined by someone having no tolerance for despicable, cowardly pigs smashing inebriated females' faces into the blacktop, ones that pose zero threat, because they didn't like what she said or did, then yeah, I'm a pus*y. But then, I'm also a guy responsible for sending several pigs to the hospital for trying the same shyt with someone who was actually capable of fighting back.

Interesting, though. Where I come from, those condoning and applauding that kind of disgraceful, unnecessary violence on a woman in that kind of scenario are known as pus*ies.

Several pigs...wow. Got a link to the news story? Did you get charged or did you get away?

Dink

Not one incident. Two separate incidents. And no. Names are not released with juveniles in criminal proceedings. Did I get away? Nope. Did I do what was right? In my book, absolutely. Should I have been arrested/PCd to begin with? Yes. Did the pig really need to lift me up off my feet from behind, with his baton against my throat/under my chin, choking me out, telling me that if I spoke another word he was going to strangle my "ch*nk ass" to death as his partner, Bobby Donovan (Brookline PD) tried to make him stop? Nope. Did it matter to him that I was already bloody, shoeless, shirtless, drunk and handcuffed behind my back? Guess not.

Did that same pig like me reverse head-butting him with the back of my head, pulverizing his nose? I sure as hell hope not. F*cking bastard. Was I prosecuted? Yep. Did I beat the charges? Mostly, yes. Did the pig learn a lesson? No idea, but I'd not shed a tear to learn he died a painful death. He was a worthless maggot, and was known for using excessive force.

You whipped several as a juvenile? With other officers present? How many is several?

Dink

It's clear you don't believe me, and that's OK. Frankly, I don't care. I came up in a time and place where violence on the street was commonplace. As a cop, you have access to arrest records, right? PM me and I'll give you express permission to search mine, if you're that curious. When you get to reading the charges against me in two criminal proceedings listed as 'assault and battery on a police officer', will that suffice?

Some suggested I did not play well with others as an adolescent, and ran with some people I shouldn't have, let's just say. It wasn't very Disney.

I grew up with and ran with the younger brothers of three of the four young men discussed below. John Langdon, TJ Mattimoe and Brett Alliason (Ralphie, Peter and Mark are the brothers I knew well and looked up to). All were convicted of murder at ages 15-16. Proceedings are described here:


*738 On May 19, 1979, complaints were issued pursuant to G.L. c. 119, ss 54, 55, in the Juvenile Session of the Municipal Court of Brookline charging each juvenile with being a delinquent child by reason of murder. The Commonwealth moved to transfer the cases from the Juvenile Session to the Superior Court, pursuant to G.L. c. 119, s 61. At the probable cause determination [FN3] held on July 5 and 18, 1979, there was testimony as to the following facts. During the evening of May 18, 1979, Juvenile A (then age sixteen years, six months), Juvenile B (then age sixteen years, five months), and Juvenile C (then age fifteen years, six months) were gathered on a street corner in Brookline with James Corbett (an adult). There had been some limited drinking of beer and several earlier confrontations with a motorcycle police officer. During the evening there was also a confrontation with some college-age males during which a knife was exhibited. At 11:30 P.M. an Iranian college student and a friend were walking down Beacon Street and were confronted by the three juveniles and Corbett. The four positioned themselves on the sidewalk so that the Iranian youths had to walk between them. After some words were spoken, the taller Iranian youth ran away from the scene and was chased down the road by Corbett. The three juveniles then circled the smaller youth (one Ali Majidi) *739 and attacked him. Majidi was hit with a metal bar, kicked, and beaten to the ground with fists. While lying on the ground Majidi was repeatedly stabbed with Juvenile A's knife, resulting in three puncture wounds to the front and three to the back. As a result of screams from witnesses the three fled, leaving Majidi on the sidewalk bleeding. A little more than one hour later, Majidi was pronounced dead after being taken to a hospital. The three were subsequently arrested.

FN3. The �transfer hearing� required by G.L. c. 119, s 61, is actually a two-step determination. The first part is an inquiry into probable cause. Only if probable cause is found to exist is the second determination-whether to retain juvenile jurisdiction or to �bind over� the defendant to the Superior Court-then made. In order to retain the statutory terminology, we refer to the entire process as the �transfer hearing� and to its two component parts as the �probable cause stage (or determination)� and the �transfer stage (or determination).� See G.L. c. 119, s 61, and Rule 208 of the Special Rules of the District Courts.


Probable cause was found and, on October 31 and November 1, 1979, the second part of the transfer process, the transfer determination, was held before the same judge who had heard the evidence of probable cause. As at the probable cause stage, the juveniles were represented by counsel, and a court reporter was present. Juveniles B and C both testified. Based on this evidence, as well as other evidence pertaining to the background of each juvenile, the judge entered findings of fact and orders to dismiss the juvenile complaints and cause criminal complaints to be issued pursuant to G.L. c. 119, s 61. On November 26, 1979, **347 the grand jury returned indictments as to each defendant on each charge (murder and two related counts of assault and battery by means of a dangerous weapon). The defendants then moved to dismiss in the Superior Court alleging that, since the facts found by the Municipal Court judge failed to meet the standards established by the Legislature and this court, the Superior Court therefore lacked jurisdiction. After reviewing the evidence, a judge of the Superior Court denied the motion to dismiss and entered written findings supporting his order.

The defendants then filed petitions for relief under G.L. c. 211, s 3, in the Supreme Judicial Court for Suffolk County. The petitions were heard by a single justice, who denied relief and dismissed the petitions. A motion for rehearing and reconsideration was denied, and the case is now before us on the petitioners' appeal from the orders of the single justice. We first review the cases and statutes which set forth the minimum findings necessary to support a decision *740 to transfer such cases. Following this we examine the evidence presented relative to each defendant, and the findings of the Municipal Court judge, all of which lead us to conclude that there has been no error.

1. Requirements of G.L. c. 119, s 61, and Court Guidelines.
In order for a juvenile between his fourteenth and seventeenth birthdays to be tried as an adult, it must first be established that the juvenile falls into one of two categories: (1) he must be a child who previously has been committed to the care of the Department of Youth Services and who is now charged with having committed an offense which, if he were an adult, would be punishable by imprisonment in the State prison; or (2) he must be charged with having committed an offense involving the infliction or threat of serious bodily harm. G.L. c. 119, s 61. In order to transfer the child for adult proceedings, not only must at least one of the two preceding conditions have been satisfied but also, of importance here, the judge must enter the following two written findings based upon clear and convincing evidence: (1) the child presents a significant danger to the public (this danger being demonstrated by the nature of the offense and the child's past record of delinquent behavior, if any); and (2) the child is not amenable to rehabilitation as a juvenile. G.L. c. 119, s 61. The judge must also consider at least the five factors denominated (a) through (e) in G.L. c. 119, s 61,[FN4] and may find support for the two critical written *741 findings in these or in the similar factors presented in our guidelines. See A Juvenile v. Commonwealth, 370 Mass. 272, 281-283, 347 N.E.2d 677 (1976). Neither the statute nor our cases, however, require the judge to make a written finding concerning any particular one of these individual factors.

FN4. The statute requires that, if the judge finds probable cause, he �shall then consider, but shall not be limited to, evidence of the following factors: (a) the seriousness of the alleged offense; (b) the child's family, school and social history, including his court and juvenile delinquency record, if any; (c) adequate protection of the public, (d ) the nature of any past treatment efforts for the child and (e) the likelihood of rehabilitation of the child.� G.L. c. 119, s 61, as appearing in St. 1975, c. 840, s 1.

Section 61 authorizes the adoption of court rules for the conduct of transfer hearings. In our earlier cases we spoke of procedures mandated by Rule 85A of the Rules of the District Courts, effective May 7, 1973. See A Juvenile v. Commonwealth, 370 Mass. 272, 275 n.3, 347 N.E.2d 677 (1976). These requirements have since been changed and are presently found in Rule 208 of the Special Rules of the District Courts of Massachusetts. Rule 208 adds no substantive requirements to the enumerated factors in G.L. c. 119, s 61, and the guidelines in our cases. The sequence of District Court rules on this subject is as follows: Rule 85 (effective March 4, 1969); Rule 85A (effective May 7, 1973); Rule 208 of the Special District Court Rules (effective July 1, 1975); and Rule 208 of such rules (amended, effective June 1, 1976), which is the current rule. See also Commonwealth v. A Juvenile, 363 Mass. 640, 641-642, 296 N.E.2d 194 (1973), for the relevant part of former Rule 85 and a discussion of former Rule 85A, and see Commonwealth v. Clark, �-Mass. �-, �- - �- (1980) (Mass.Adv.Sh. (1980) 237, 245-247) 400 N.E.2d 251, for a comparison of former and current procedures of transfer.

[1] Headnote Citing References **348 Our cases supplement the statutory requirements. A judge who makes the two written findings required by G.L. c. 119, s 61, must also make subsidiary findings indicating the basis for his conclusions concerning the two statutorily required findings. A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976). These subsidiary findings may show consideration of the five enumerated statutory factors and the factors identified in our guidelines, id. at 282 n.14, 347 N.E.2d 677, although any single factor will rarely, if ever, be controlling. Cf. A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976).

The petitioners urge us to require written findings covering each enumerated factor the court is directed to consider under G.L. c. 119, s 61. They argue that this will ensure that each area required to be considered will indeed be considered. We decline to adopt such a compulsory �checklist� approach. Even though the statute requires that the two critical findings be written, its only affirmative requirement concerning the enumerated factors is that they be considered. We think that in differentiating between the two critical findings and the five enumerated factors in such a manner the Legislature indicated its concern that courts making transfer determinations have available to them a *742 broad range of evidence from a wide variety of sources, the enumerated factors identifying only the minimum evidence which must be considered, if available. This concern is further indicated by the statutory preface �the court shall then consider, but shall not be limited to, evidence of the following factors.� G.L. c. 119, s 61, second par.

[2] Headnote Citing References[3] Headnote Citing References[4] Headnote Citing References Our previous cases also reflect this concern. �There is no specific requirement that a judge weigh these factors in a certain manner or achieve some predesigned balance. Any factor which bears on the protection of the public and the amenability of the child to treatment as a juvenile may be considered.� A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976). �(I)n the relatively few cases in the juvenile courts in which the transfer question arises, the proof should be full, and in the still fewer cases where transfer is ordered, the findings should express the judge's reasons in fair detail and with logical cohesion.� A Juvenile v. Commonwealth, �- Mass. �-, �- [FNa], 405 N.E.2d 143 (1980). It may be better practice for a judge to make detailed written findings concerning each enumerated factor, but so long as the transfer order complies in other aspects with our guidelines and the findings meet the statute's �clear and convincing� test, a transfer order is not fatally deficient if it omits factors the judge finds ambiguous, unpersuasive or nonexistent.

FNa. Mass.Adv.Sh. (1980) 1131, 1142.


2. The Evidence Presented at Petitioners' Transfer Hearing.
Having reviewed the proper standards for transfer hearings, we next examine the subsidiary findings identified by the judge. Included in the evidence submitted for each juvenile was a written psychiatric report prepared by an independent doctor who was selected by the Commonwealth, a copy of each juvenile's school records, and a psychiatric report prepared by the Brookline Court Clinic. These documents were considered by the judge as bearing on the minor's potential for successful treatment before the age of majority within existing juvenile facilities. Additionally, for Juveniles B and C, there was submitted for each a full written report as to his family and home life.

*743 There were some findings made by the judge which were common to all three juveniles. The judge gave great weight to the nature of the offense charged, as he was permitted to do under our cases and G.L. c. 119, s 61. See A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976). In his written findings the judge found that the rehabilitation resources of the Department of Youth Services would inadequately serve to protect the public both because secure facilities were used **349 only as a last resort and because of the delay involved prior to placing a child in such a facility. The final written findings common to all three juveniles were the two critical findings required by G.L. c. 119, s 61: that, based upon clear and convincing evidence, the juveniles presented a significant danger to the public and were not amenable to rehabilitation as juveniles.

The judge also entered, as to each of the three juveniles, written findings of subsidiary factors upon which these two statutory conclusions were based. The more important findings particular to each of the three are summarized below. As before, we note that the judge was not required to make written findings concerning subsidiary factors he has found to be ambiguous, unpersuasive or nonexistent.

A. Findings as to Juvenile A. Juvenile A, concededly the person who repeatedly stabbed the victim, exhibited no remorse after the homicide. Two weeks before the second part of the transfer hearing, he was again arrested and charged with an assault by means of a dangerous weapon in an incident subsequent to and unrelated to the homicide. He had been suspended from school in 1978 for painting racial epithets on the school walls. As a result of this incident, he was ordered to make restitution to the school and attend counseling, but he did not fully comply with these requirements. As well as suffering from significant learning disabilities, Juvenile A also had a problem with alcohol abuse. Not only was he involved in the murder of Majidi and aggressive confrontations with others on the night of the murder, but he had also been involved in other incidents of malicious damage and altercations which did not result *744 in criminal prosecution. The court made further findings in addition to those here listed.

B. Findings as to Juvenile B. The judge found that there was appreciable domestic violence in Juvenile B's home. His father was incarcerated at the time of the hearing, and his mother had previous psychiatric problems. There had been incidents of aggressive behavior in which Juvenile B was involved, and he was also a drug and alcohol abuser. Prior to the time of the homicide, he had been arrested for assault and battery, breaking and entering with intent to commit a felony, larceny, and malicious injury to personal property. While on probation for a charge of malicious destruction, he was again before the court for a charge of breaking glass. He was found not to have responded to any rehabilitation he had been offered. Juvenile B was found to be the assailant who had used the metal bar in the homicide.

C. Findings as to Juvenile C. Juvenile C was found not to have exhibited any appreciable remorse by word, act or expression. Subsequent to the homicide, and within a few days of the transfer determination, he was caught writing on the walls of his former high school. From the time he was in seventh grade, he had been suspended three times, once for fighting. His school performance was found to have significantly deteriorated.

Juvenile C was found to have been the instigator of altercations with other young people prior to the homicide. He had previously rejected all counseling and therapy, despite recommendations that he accept assistance. Not only was he found to have a proclivity to violence but also to have a strong antipathy to minorities. He was heavily involved in self-defense training and interested in military weaponry. His character structure was found to exhibit �anxiety, rigidity and an interest in aggression.�

For each juvenile two written psychiatric reports were submitted prior to the hearing. Of the six reports, three expressly recommended against transfer, and three impliedly so recommended. In a brief finding the court identified *745 each of these reports as �inconclusive.� The petitioners emphasize this finding as illustrative of the judge's unwillingness to entertain favorable evidence. We read the use of the word �inconclusive� as signifying the judge's proper hesitancy to accept these reports (or indeed any particular evidence) as conclusive when considered with all of the other evidence. **350 Cf. American Hoechest Corp. v. Department of Pub. Utils., �-Mass. �-, �- [FNb], 399 N.E.2d 1 (1980). It is just this sort of literal hypertechnicality that we wish to avoid in construing the requirements of G.L. c. 119, s 61, since the transfer process is already carefully circumscribed by the guidelines established in the statute and our cases.

FNb. Mass.Adv.Sh. (1980) 1, 4-5.


[5] Headnote Citing References We disagree with the petitioners' contention that the transfer was �arbitrary and capricious� because unsupported by sufficient evidence. While we perhaps might have reached different conclusions from those of the judge, we are unable to say that no reasonable judge making this difficult determination could have found the evidence sufficient to meet the clear and convincing standard mandated by G.L. c. 119, s 61. Further, the findings express the judge's reasons �in fair detail and with logical cohesion� as we have required. A Juvenile v. Commonwealth, �- Mass. �-, �- [FNc], 405 N.E.2d 143 (1980). As we have indicated above, it would have been better if the judge had made findings as to each of the five statutory factors, even if some of those findings indicated the inconclusiveness or nonexistence of some of the factors. Those findings would show beyond question the judge's compliance with statutory requirements. Nevertheless, there is nothing in this record, including the judge's findings, to support the petitioners' premise that the judge did not comply with the mandates of the statutes or of this court. On the contrary, the record as a whole gives strong support to our conclusion that the judge gave full and fair consideration to the issues and fully complied with all requirements. There was no error.

FNc. Mass.Adv.Sh. (1980) 1131, 1142.


The suggestion is made that the petitioners were denied their rights to procedural due process. Since we have decided that the requirements of G.L. c. 119, s 61, and the *746 guidelines established by this court have been satisfied, we now determine whether those requirements afford the petitioners sufficient protection. A related question was addressed by the First Circuit Court of Appeals in Stokes v. Fair, 581 F.2d 287 (1st Cir. 1978). In Stokes, the plaintiff challenged his transfer for trial as an adult under G.L. c. 119, s 61, stating that since he had not been provided with a statement of reasons for this transfer, his due process rights had been violated. We note that at the time of his hearing (1969), G.L. c. 119, s 61, did not require consideration of the factors enumerated (a) through (e) in the present version, nor was such consideration required under rule 85 of the Rules of the District Courts. See Stokes v. Commonwealth, 368 Mass. 754, 775, 336 N.E.2d 735 (1975).

[6] Headnote Citing References Analyzing the requirements of such a transfer hearing, in terms of due process, the First Circuit stated that �the procedural protections which must be afforded a juvenile before he may be transferred to adult offender status vary in terms of the particular statutory scheme which entitles him to juvenile status in the first place.... While we readily agree that in most cases in which review is possible the preferred procedure would be for the court to state the reasons for its decision and in some cases such a statement of reasons may be essential to due process, we cannot say that the appellee's constitutional rights were violated here.� Stokes v. Fair, 581 F.2d 287, 289-290 (1978). The Court of Appeals suggested that two areas of concern were to be examined in resolving such a due process challenge: (1) ensuring that the juvenile is adequately informed of the basis upon which the court was ordering transfer, and (2) providing a record which would enable a reviewing court to evaluate the transfer proceedings. Id. at 291. We have no disagreement with these statements of principle. The additional procedures now required by G.L. c. 119, s 61, and our guidelines fully satisfy both of these criteria. We think that the protection afforded by G.L. c. 119, s 61, and our guidelines fully provide all the �formal mechanisms� to which the petitioners were entitled in order **351 to protect their due process rights. See id. at 289.

*747 Finally, we note the petitioners' contention that these petitions are properly considered under G.L. c. 211, s 3, both in order to protect rights of minors which would be irremediably damaged by a public trial and in order to resolve a question of proper transfer practice involving the working relation between two departments of the Trial Court.[FN5] Since there is no error in the transfer process, there is thus no need to determine whether this case presents a proper occasion for relief under G.L. c. 211, s 3, in order to protect substantive rights of minors. The urgency of resolving the question concerning the relation between two departments of the Trial Court has since subsided with our recent decision of A Juvenile v. Commonwealth, �-Mass. �-, �- - �- [FNd], 405 N.E.2d 143 (1980). Therefore, finding no occasion for relief for these particular petitioners and no need to address the more generalized inquiry concerning the trial courts, we affirmed, by an order issued by the full court on September 18, 1980, the decision of the single justice dismissing the petitions.

FN5. Although a finding of probable cause is a necessary predicate to a transfer determination, neither of the two proffered grounds for decision under G.L. c. 211, s 3, is involved in our reviewing a determination of probable cause. We therefore find it unnecessary to consider Juvenile C's challenge to the finding of probable cause to believe that he committed murder.


FNd. Mass.Adv.Sh. (1980) 1131, 1135-1137.


Mass., 1980.
Two Juveniles v. Com.
381 Mass. 736, 412 N.E.2d 344

END OF DOCUMENT

PDF Document West Reporter Image (PDF)

Here's another older brother whose kid brother I ran with. That younger sibling, Andy, died in a house fire years later. It was not an Andy Griffith type childhood we lived. It is what it is, I suppose. Most I grew up with never figured out that it was just a game.


Supreme Judicial Court of Massachusetts,
Suffolk.
COMMONWEALTH
v.
Gregory DIATCHENKO.

Argued Oct. 6, 1982.
Decided Dec. 8, 1982.

Defendant was convicted in the Superior Court, Suffolk County, Brogna, J., of murder in the first-degree, and he appealed. The Supreme Judicial Court, Hennessey, C.J., held that: (1) statute requiring a mandatory term of life imprisonment without possibility of parole did not constitute cruel and unusual punishment; (2) sentence imposed was not unconstitutional as excessive or as making no measurable contribution to acceptable goals of punishment; (3) refusal to grant a 30-day continuance to allow defendant to substitute counsel did not amount to a denial of effective assistance of counsel; and (4) instructions on included offense of manslaughter were not reversibly erroneous as being either confusing or misleading.

Affirmed.


West Headnotes

[1] Headnote Citing References KeyCite Citing References for this Headnote

Key Number Symbol350H Sentencing and Punishment
Key Number Symbol350HVII Cruel and Unusual Punishment in General
Key Number Symbol350HVII(E) Excessiveness and Proportionality of Sentence
Key Number Symbol350Hk1495 k. Homicide, Mayhem, and Assault with Intent to Kill. Most Cited Cases
(Formerly 110k1213.2(1), 110k1213)

Statute which requires a person convicted of first-degree murder to be sentenced to mandatory term of life imprisonment without possibility of parole does not contravene modern standards of decency by failing to allow trial court to consider mitigating circumstances in its discretion and, hence, is not constitutionally infirm as cruel and unusual punishment. M.G.L.A. c. 265, � 2; M.G.L.A. Const. Pt. 1, Art. 26; U.S.C.A. Const.Amends. 8, 14.

[2] Headnote Citing References KeyCite Citing References for this Headnote

Key Number Symbol350H Sentencing and Punishment
Key Number Symbol350HVII Cruel and Unusual Punishment in General
Key Number Symbol350HVII(E) Excessiveness and Proportionality of Sentence
Key Number Symbol350Hk1495 k. Homicide, Mayhem, and Assault with Intent to Kill. Most Cited Cases
(Formerly 110k1213.2(1), 110k1213)

Term of imprisonment which must be imposed by person convicted of first-degree murder, a mandatory term of life without possibility of parole, is not so disproportionate to crime committed as to constitute cruel and unusual punishment. M.G.L.A. c. 265, � 2; M.G.L.A. Const. Pt. 1, Art. 26; U.S.C.A. Const.Amends. 8, 14.

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Key Number Symbol350H Sentencing and Punishment
Key Number Symbol350HI Punishment in General
Key Number Symbol350HI(B) Extent of Punishment in General
Key Number Symbol350Hk38 k. Proportionality to Offense. Most Cited Cases
(Formerly 110k1208.1(2), 110k1213)

A determination whether a defendant has met his burden of proving that a punishment is so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity requires a consideration of the nature of the offense and the offender in light of the degree of harm to society, a comparison between sentence imposed in the case and punishment for the commission of more serious crimes in the Commonwealth, and a comparison of the penalty challenged with penalties prescribed for the same offense in other jurisdictions. M.G.L.A. Const. Pt. 1, Art. 26; U.S.C.A. Const.Amends. 8, 14.

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Key Number Symbol203 Homicide
Key Number Symbol203XIV Sentence and Punishment
Key Number Symbol203k1561 Constitutional and Statutory Provisions
Key Number Symbol203k1562 k. In General. Most Cited Cases
(Formerly 203k351)

The legislature may determine that a severe penalty is needed to protect the public from those who would commit murder in the first-degree. M.G.L.A. c. 265, � 2; M.G.L.A. Const. Pt. 1, Art. 26; U.S.C.A. Const.Amends. 8, 14.

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Key Number Symbol350HVIII The Death Penalty
Key Number Symbol350HVIII(E) Factors Related to Offender
Key Number Symbol350Hk1714 k. Age. Most Cited Cases
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The youth of a defendant is insufficient in itself to justify invalidating the legislature's choice of punishment for murder in the first degree. M.G.L.A. c. 265, � 2; M.G.L.A. Const. Pt. 1, Art. 26; U.S.C.A. Const.Amends. 8, 14.

[6] Headnote Citing References KeyCite Citing References for this Headnote

Key Number Symbol350H Sentencing and Punishment
Key Number Symbol350HI Punishment in General
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Key Number Symbol350Hk40 k. In General. Most Cited Cases
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The interests which may be served by punishment include deterrence, isolation and incapacitation, retribution and moral reinforcement, and reformation.

[7] Headnote Citing References KeyCite Citing References for this Headnote

Key Number Symbol110 Criminal Law
Key Number Symbol110XXIV Review
Key Number Symbol110XXIV(N) Discretion of Lower Court
Key Number Symbol110k1156.1 Sentencing
Key Number Symbol110k1156.2 k. In General. Most Cited Cases
(Formerly 110k1147)

The standard of review in considering a sentence other than the death penalty is whether the statute bears a reasonable relation to a permissible legislative objective.

[8] Headnote Citing References KeyCite Citing References for this Headnote

Key Number Symbol203 Homicide
Key Number Symbol203XIV Sentence and Punishment
Key Number Symbol203k1570 Life Sentence
Key Number Symbol203k1572 k. Murder. Most Cited Cases
(Formerly 203k354(2), 203k354)

Mandatory term of life imprisonment without possibility of parole, imposed upon defendant on conviction of murder in the first degree, was not unconstitutional as excessive or as bearing no relation to any acceptable goals of punishment. M.G.L.A. c. 265, � 2.

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Key Number Symbol110 Criminal Law
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Key Number Symbol110XXXI(B)9 Choice of Counsel
Key Number Symbol110k1824 Discharge by Accused
Key Number Symbol110k1828 Particular Cases
Key Number Symbol110k1828(1) k. In General. Most Cited Cases
(Formerly 110k641.10(2))

Refusal to grant a 30-day continuance to allow defendant to substitute counsel was not unconstitutional as being equivalent to a denial of effective assistance of counsel in absence of a showing that appointed counsel performed in other than a competent, efficient, and attentive fashion. U.S.C.A. Const.Amend. 6.

[10] Headnote Citing References KeyCite Citing References for this Headnote

Key Number Symbol110 Criminal Law
Key Number Symbol110XXXI Counsel
Key Number Symbol110XXXI(B) Right of Defendant to Counsel
Key Number Symbol110XXXI(B)9 Choice of Counsel
Key Number Symbol110k1824 Discharge by Accused
Key Number Symbol110k1825 k. In General. Most Cited Cases
(Formerly 110k641.10(2))

Standard to be applied by a trial judge when a request to substitute counsel is made after the commencement of trial is one of balancing any prejudice to the defendant's interests with the foreseeable effect on the trial already in progress.

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Key Number Symbol110 Criminal Law
Key Number Symbol110XXIV Review
Key Number Symbol110XXIV(Q) Harmless and Reversible Error
Key Number Symbol110k1172 Instructions
Key Number Symbol110k1172.3 k. Invasion of Province of Jury. Most Cited Cases
(Formerly 203k340(1))

Instruction which was given in connection with included offense of manslaughter and which was to effect that it was function of jury to determine whether there was a killing with malice aforethought and function of the Commonwealth to convince jury that regardless of whether there was a fight or not, the defendant, if he stabbed the victim, acted with malice aforethought was not reversibly erroneous as being either confusing or misleading.

**398 *718 J. Albert Johnson, Boston (Thomas J. May, Boston, with him), for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty. (John Richard, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.


HENNESSEY, Chief Justice.

The defendant, Gregory Diatchenko, was convicted of murder in the first degree by a jury in the Superior Court in Suffolk County and sentenced, pursuant to G.L. c. 265, � 2, to the mandatory term of life imprisonment without the possibility of parole. On appeal, the defendant contends that G.L. c. 265, � 2, is unconstitutional *719 under the United States and Massachusetts Constitutions, because it requires a mandatory term of life imprisonment without the possibility of parole and does not allow the trial judge to consider mitigating factors prior to sentencing. He also argues that the trial judge's refusal to grant the defendant's request to change counsel was unconstitutional because it denied him the right to effective assistance of counsel. The defendant's final assertion is that the judge's instructions to the jury were confusing and misleading and that the judgment should be reversed because the alleged errors in the instructions **399 resulted in the defendant's being improperly convicted of murder in the first degree. We disagree with all the defendant's arguments and, therefore, affirm the judgment.

On the evening of May 9, 1981, at approximately 9:45 P.M., Boston police officer Peter Jerome received a radio call directing him to an alley at the rear of 860 Beacon Street, near Kenmore Square. When he arrived he saw the victim, Thomas Wharf, slumped unconscious and bleeding in the driver's seat of a red Cadillac automobile. Wharf was pronounced dead at 10:40 P.M. An autopsy revealed nine stab wounds, including one penetrating the left lung at a depth of four inches and another piercing the heart at a depth of seven inches. The right rear pocket of the victim's pants had been ripped open.

The Commonwealth presented extensive evidence indicating that the defendant committed the murder. Ronald Gray testified that he saw the defendant alone on Hadassah Way near Park Square in Boston on the night of the stabbing at approximately 8 P.M. Lori Pearlman testified that she was seated at a table in the living room of her apartment at 860 Beacon Street on the night of the stabbing. The table was located next to an open window overlooking the alley where the stabbing occurred. At approximately 9:30 P.M., she heard a loud voice from the alley yell out a few times, �Give me your money, you m--- f---.� She telephoned the police and reported what she assumed was a robbery. While she was on the telephone, she heard a car horn sound continuously*720 for approximately five seconds. She next saw someone with blond or light brown hair, wearing a brown leather jacket, run away from the building past parked cars in the alley.

On the same night, at approximately 10:15 P.M., James Ryan was seated at a shelter at the Brookline Village streetcar station. He saw a light-haired young man, carrying a brown leather jacket, walk along the trolley tracks, coming from the direction of the scene of the murder. The young man came into the shelter, sat down beside Ryan, and asked him for a match. Ryan, who noticed that the young man's hand was covered with blood, asked him if he had cut himself. The young man replied that he had been in a fight and had stabbed someone approximately twenty times. Ryan and the young man spoke for about fifteen minutes and the young man told Ryan that his name was Greg. On the following day, Sunday, May 10, Ryan read an account of the murder in a newspaper. On Monday, May 11, Ryan telephoned the Boston police and told them of his meeting with the young man on the night of the stabbing. Ryan later identified a photograph of the defendant from an array of eleven photographs. The defendant's fingerprints were found in and on the victim's car.

An arrest warrant was issued for the defendant. A search of the defendant's apartment was conducted during the arrest, and a brown leather jacket and a knife were found.

At his trial, the defendant was represented by a privately retained attorney, Mr. William Homans. After the start but before the completion of the empanelling of the jury, the defendant advised the judge that he wished to speak with another attorney. The defendant indicated that he had consulted with another attorney, Mr. Albert Johnson, and asked the judge for �a little more time so [he] could talk to this attorney to see what he has to say.� Since the request was made during the empanelling of the jury, the judge stated that he would not stop the trial but that the defendant could confer with Mr. Johnson when the empanelling was completed.

*721 The following day, in a lobby conference, the defendant expressed his wish to change counsel, and the judge discussed the request with Mr. Homans, with the prosecutor, and with a Mr. Thomas May, who is an associate of Mr. Johnson. Mr. May explained that the defendant did not have �any specific complaint, but just a general feeling of discomfort and lack of confidence.� Mr. May also stated that he would need a continuance of at least thirty days in order to prepare adequately for trial. The prosecutor**400 pointed out that the Commonwealth had flown the main witness to Boston from North Carolina and that arrangements had been made to bring the second most important witness down from Maine for the trial. Also, the jury had been empanelled and a bus and police cruiser were outside waiting to take the jury on a view of the scene of the murder. The judge decided that the trial should not be delayed unnecessarily and that Mr. Homans should continue as defense counsel.

The jury returned a verdict of guilty of murder in the first degree. The jurors' answers to special questions revealed that they found deliberate premeditation and malice aforethought, extreme atrocity and cruelty, and felony-murder (armed robbery). Defense counsel attempted to introduce mitigating factors at the sentencing phase of the trial but the judge refused to consider them. The judge imposed the punishment required under G.L. c. 265, � 2, life imprisonment without the possibility of parole.

1. The defendant maintains that the mandatory sentencing provision FN1 of G.L. c. 265, � 2, is constitutionally infirm as cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution *722 and cruel or unusual punishment under art. 26 of the Massachusetts Declaration of Rights FN2 because it contravenes modern standards of decency and because the punishment imposed is so disproportionate to the offense. We disagree.

FN1. We point out that G.L. c. 265, � 2, provides that the Governor may commute a defendant's sentence thereby subjecting the defendant to statutory provisions allowing parole. See G.L. c. 127, � 152. Furthermore, we are empowered to reduce a verdict against a defendant pursuant to our obligation of review under G.L. c. 278, � 33E. Thus, to this limited extent the mandatory sentence of life imprisonment without the possibility of parole is not absolute.


FN2. We have never decided whether the language of the Eighth Amendment (�nor cruel and unusual punishments inflicted�) and art. 26 (�[n]o magistrate or court of law, shall ... inflict cruel or unusual punishments�) imports the same meaning. Cepulonis v. Commonwealth, ---Mass. ---, --- n. 2, Mass.Adv.Sh. (1981) 2089, 2090 n. 2, 427 N.E.2d 17, appeal dismissed, 455 U.S. 931, 102 S.Ct. 1416, 71 L.Ed.2d 640 (1982). District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, ---, Mass.Adv.Sh. (1980) 2231, 2259, 411 N.E.2d 1274 (Liacos, J., concurring). We need not decide the issue here. See Cepulonis, supra at --- - --- n. 2, at 2090-2091 n. 2, 427 N.E.2d 17.


[1] Headnote Citing References The defendant's first attack on the constitutional validity of G.L. c. 265, � 2, focuses on the statute's mandatory and nondiscretionary character. The defendant suggests that, because in other circumstances the Legislature frequently has allowed the exercise of judicial discretion in sentencing, that practice has become a contemporary standard of decency. He then concludes that a statute that does not comport with contemporary standards of decency is unconstitutional. The cases cited by the deendant, however, examine only the constitutionality of death penalty provisions. See Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, Mass.Adv.Sh. (1980) 2231, 411 N.E.2d 1274. Since these cases involve the death penalty, they are of limited usefulness in assessing the constitutionality of a mandatory term of life imprisonment. In Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978), a plurality of the Supreme Court stated, �Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases� (emphasis supplied).FN3 In **401 *723 Lockett and in cases decided after it, the Supreme Court has reiterated that the standard for evaluating the constitutionality of death penalty provisions is much higher than the standard to be employed in evaluating other penalties. See, e.g., id. at 605 n. 13, 98 S.Ct. at 2965 n. 13 (�Sentencing in noncapital cases presents no comparable problems�); Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980) (�Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions [in death penalty cases] are of limited assistance in deciding the constitutionality of [other] punishment ...� [emphasis supplied] ). See also District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 642, ---, Mass.Adv.Sh. (1980) 2231, 2246, 411 N.E.2d 1274 (�[T]he death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain� [emphasis supplied] ). The Supreme Court has even stated that, although discretionary sentencing is an accepted practice, it is not constitutionally required in cases not involving the death penalty. Lockett, supra, 438 U.S. at 602, 604-605, 98 S.Ct. at 2963, 2964-65 (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell and Stevens, JJ.). Cf. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (consideration of sixteen year old defendant's family history required because death penalty was involved). Therefore, we reject the defendant's argument that G.L. c. 265, � 2, is unconstitutional because it does not allow consideration of mitigating circumstances.

FN3. General Laws c. 278, � 33E, as appearing in St. 1979, c. 346, � 2, defines a capital case as one �in which the defendant was tried on an indictment for murder in the first degree and was convicted of murder in the first degree.� Section 33E, however, also provides that such a case is a capital case only for determining the availability of plenary review by this court under that section. Therefore, a capital case as defined under c. 278, � 33E, is not the same type of capital case referred to by the Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and other cases. The Supreme Court obviously intended to refer only to those cases where imposition of the death penalty was possible.


[2] Headnote Citing References The defendant's second challenge to the validity of G.L. c. 265, � 2, is that the punishment imposed is so disproportionate to the crime committed by the defendant as to constitute cruel and unusual punishment. We conclude, however, that the mandatory term of life imprisonment imposed in this case does not constitute cruel and unusual punishment under the Federal and State Constitutions. Decisions in this State, other States,FN4 and the Supreme Court have *724 upheld**402 prison sentences equal in severity to the sentence imposed in this case. For example, in Rummel v. Estelle, 445 U.S. 263, 266, 285, 100 S.Ct. 1133, 1135, 1145, 63 L.Ed.2d 382 (1980), the Supreme Court held that a mandatory life sentence imposed under a Texas recidivist statute following the defendant's third felony conviction (obtaining $120.75 by false pretenses) did not constitute cruel and unusual punishment. The Court reasoned that *725 �[o]utside the context of [the death penalty], successful challenges to the proportionality of particular sentences have been exceedingly rare.� Id. at 272, 100 S.Ct. at 1138. Indeed, the Court indicated that for crimes �punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative� (footnote omitted). Id. at 274, 100 S.Ct. at 1139.

FN4. An overwhelming number of courts have concluded that a term of life imprisonment without the possibility of parole is not cruel and unusual punishment. See, e.g., Government of V.I. v. Gereau, 592 F.2d 192, 195 (3d Cir.1979) (first degree murder); McGinnis v. State, 382 So.2d 605, 608 (Ala.Crim.App.1979) (nighttime burglary and intentional killing); State v. Parle, 110 Ariz. 517, 521, 521 P.2d 604, cert. denied, 419 U.S. 1003, 95 S.Ct. 324, 42 L.Ed.2d 279 (1974) (first degree murder-parole left to discretion of governor on recommendation of parole board); State v. Taylor, 82 Ariz. 289, 294, 312 P.2d 162 (1957) (kidnapping); Dyas v. State, 260 Ark. 303, 324, 539 S.W.2d 251 (1976) (capital felony murder); Rogers v. State, 257 Ark. 144, 155-157, 515 S.W.2d 79 (1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975) (first degree rape-defendant was seventeen year old first-time offender); In the Matter of Rosencrantz, 205 Cal. 534, 537, 271 P. 902 (1928) (recidivist statute); People v. Isitt, 55 Cal.App.3d 23, 32-33, 127 Cal.Rptr. 279 (1976) (kidnapping for robbery with bodily harm-imposed on seventeen year old); State v. Spence, 367 A.2d 983, 989 (Del.1976) (first degree murder-imposed on youth); McDonald v. Commonwealth, 569 S.W.2d 134, 138 (Ky.1978), cert. denied, 439 U.S. 1119, 99 S.Ct. 1028, 59 L.Ed.2d 79 (1979) (rape); State v. Hartman, 388 So.2d 688, 695 (La.1980) (first degree murder); State v. Brooks, 350 So.2d 1174, 1175-1176 (La.1977) (second degree murder-no parole for forty years); People v. Hall, 396 Mich. 650, 658, 242 N.W.2d 377 (1976) (felony-murder); State v. Borden, 605 S.W.2d 88, 92-93 (Mo.1980) (capital murder-no parole for fifty years); State v. Farrow, 118 N.H. 296, 304, 386 A.2d 808 (1978) (first degree murder); State v. Forrester, 21 Wash.App. 855, 868-871, 587 P.2d 179 (1978) (aggravated first degree murder-imposed on youth). See also Annot., 100 A.L.R.3d 431 (1980); Annot., 33 A.L.R.3d 335 (1970). We are aware of only one case where a court has declared a mandatory term of life imprisonment without the possibility of parole unconstitutional. Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky.1968). In Workman, the court held unconstitutional a sentence of life imprisonment without the benefit of parole imposed on two fourteen year old youths who were convicted of forcible rape. We decline, however, to follow Workman in this case. Helm v. Solem, 684 F.2d 582 (8th Cir.1982), cert. granted, 459 U.S. 986, 103 S.Ct. 339, 74 L.Ed.2d 381 (1982), did not involve a mandatory term of life imprisonment. Id. at 583. The court in Helm held, however, that the imposition of a term of life imprisonment without the possibility of parole was unconstitutional where the sentence was imposed on a habitual offender who had an alcohol problem and who had committed no crimes of violence. Id. at 586-587. We note only that the crime committed in this case did involve substantial violence and Helm, therefore, is inapplicable.


[3] Headnote Citing References[4] Headnote Citing References[5] Headnote Citing References Our decisions also indicate that the mandatory sentence involved in this case is not cruel and unusual punishment. We have used a tripartite test in evaluating whether a defendant has met his burden of proving that a punishment is �so disproportionate to the crime that �it shocks the conscience and offends fundamental notions of human dignity.� � Commonwealth v. Jackson, 369 Mass. 904, 910, 344 N.E.2d 166 (1976), quoting In re Lynch, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921 (1972). See also Cepulonis v. Commonwealth, 384 Mass. 495, --- - ---, Mass.Adv.Sh. (1981) 2089, 2090-2091, 427 N.E.2d 17, appeal dismissed, 455 U.S. 931, 102 S.Ct. 1416, 71 L.Ed.2d 640 (1982). The first prong of that test examines �the nature of the offense and the offender in light of the degree of harm to society.� Jackson, supra. As the defendant concedes, he was convicted of the most severe crime possible in this Commonwealth, murder committed with deliberate premeditation, with extreme atrocity or cruelty, and during the commission of a felony. He argues, however, that he was so convicted when he was a minor and that he had a troubled adolescence which resulted in emotional and mental disturbances. The defendant concludes that because G.L. c. 265, � 2, precludes consideration of these mitigating factors, he has satisfied the first prong of the tripartite test. We do not agree. The Legislature may determine that a severe penalty is needed to protect the public from those who would commit murder in the first degree. Even though the defendant is young, that fact alone does not justify invalidating the Legislature's choice of punishment for murder in the first degree. See People v. Williams, 100 Misc.2d 183, 187, 418 N.Y.S.2d 737 (1979) (�[T]here is no constitutional right to youthful offender treatment ...�).

*726 The second prong of the disproportionality test involves a comparison between the sentence imposed in this case and punishment for the commission of more serious crimes in the Commonwealth. Cepulonis, supra, 384 Mass. at ---, at 2092, 427 N.E.2d 17. This prong cannot even be applied in this case because there are no crimes more serious than that committed by the defendant.

Under the final prong of the disproportionality test, we must compare the penalty challenged here with penalties prescribed for the same offense in other jurisdictions. Cepulonis, supra. The defendant refers us only to a decision in California where, he asserts, the California Supreme Court vacated as unconstitutional the imposition of a sentence of life imprisonment without the possibility of parole upon a sixteen year old boy convicted of the murder of a thirteen year old girl during the commission of a rape. See People v. Davis, 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186 (1981). The defendant, however, misstates the court's holding in Davis. The court did not intimate its views as to the constitutionality of the punishment imposed in that case. Rather, the court determined that the statute setting out the penalties for first degree murder was �equivocal� as to whether its provision regarding life imprisonment without the possibility of parole applied to minors.**403 Id. at 827-828, 176 Cal.Rptr. 521, 633 P.2d 186. Therefore, the court determined that any �ambiguity must be resolved in defendant's favor� by concluding that the provision authorizing a sentence of life imprisonment without parole does not apply to minors. Id. at 832, 176 Cal.Rptr. 521, 633 P.2d 186. Hence, the defendant has not satisfied his burden of demonstrating that the mandatory term of life imprisonment without the possibility of parole is so disproportionate to penalties imposed in other States for the same crime that art. 26 or the Eighth Amendment is violated.

[6] Headnote Citing References[7] Headnote Citing References[8] Headnote Citing References The defendant's final contention with regard to G.L. c. 265, � 2, is that the sentence imposed is excessive and, therefore, unconstitutional because it makes no measurable contribution to acceptable goals of punishment and is no more than a needless imposition of pain and suffering. We have identified the following interests that may be served by punishment: �(1) deterrence, (2) isolation and incapacitation,*727 (3) retribution and moral reinforcement, and (4) reformation.� Cepulonis, supra, 384 Mass. at ---, at 2093, 427 N.E.2d 17. The standard of review in considering a sentence other than the death penalty is �whether the statute bears a reasonable relation to a permissible legislative objective.� Id., quoting Commonwealth v. Jackson, 369 Mass. 904, 918, 344 N.E.2d 166 (1976). We cannot conclude, nor does the defendant demonstrate, that G.L. c. 265, � 2, bears no relation to any acceptable goals of punishment. Compare Cepulonis, supra, 384 Mass. at --- - ---, at 2093-2094, 427 N.E.2d 17 (a sentence of forty to fifty years for unlawful possession of a machine gun where the defendant used the gun for felonious purposes is not unconstitutional).

[9] Headnote Citing References[10] Headnote Citing References 2. The defendant also argues that the judge's refusal to grant a thirty-day continuance to allow him to substitute counsel was unconstitutional in that it was equivalent to a denial of the effective assistance of counsel. We disagree. The first indication that the defendant may have desired to change counsel did not occur until the empanelling of the jury had begun. His formal request was not made until after the empanelment was completed and the jury were preparing to go for a view of the scene of the murder. We have emphasized that �a defendant's freedom to change his counsel is restricted on the commencement of trial.� Commonwealth v. Miskel, 364 Mass. 783, 791, 308 N.E.2d 547 (1974). In Miskel, we determined that a request made after the commencement of empanelment of the jury may be treated as a request made after the commencement of trial. Id. The standard to be applied by the trial judge when a request is made after the commencement of trial is one of balancing any prejudice to the defendant's interests with the foreseeable effect on the trial already in progress. Id. The resolution of this balancing test �must be largely within the discretion of the trial judge.� Id., quoting Lamoreux v. Commonwealth, 353 Mass. 556, 560, 233 N.E.2d 741 (1968). The defendant in this case asked to interrupt the trial for at least thirty days, at great expense and inconvenience to the Commonwealth and the witnesses. He sought to dismiss an attorney he had retained privately six months before the trial and *728 with whom he did not have �any specific complaint, but just a general feeling of discomfort and lack of confidence.� There is no showing, moreover, that the attorney performed in other than competent, efficient, and attentive fashion. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). In light of these considerations, we conclude that the judge did not abuse his discretion in this case.

[11] Headnote Citing References 3. The defendant's final contention, that the judge's instructions to the jury were confusing, misleading, and constituted reversible error, is also without merit. A reading of the instructions as a whole reveals a thoroughly even-handed charge. The defendant relies heavily on a statement made by the judge out of the hearing of the jury. The judge stated, �Under my instructions, there will be no manslaughter if they follow it.� The instruction given to the jury regarding manslaughter, however, reveals a fair treatment of that degree of **404 homicide: �Notice, I told you that it is your function to determine whether there was a killing with malice aforethought or not.... [O]f course, it's up to you as to whether you believe it or not .... [T]he Commonwealth ... has to convince you that regardless of whether there was a fight or not, the defendant, if he stabbed Mr. Wharf, acted with malice aforethought.... But that would be up to you. And I still repeat that you are to decide the case ....� The defendant also contends that the jury's requested clarification concerning the verdict is sufficient proof that the instructions were so confusing as to constitute reversible error. In support of his argument that the instructions were confusing and misleading, the defendant quotes the following passage from the instructions: �Now, as I pointed out to you before, the law says that the jury find the degree of murder; but I also wish to point out to you that you are bound by your oath, if you are convinced that it was a murder, that Mr. Diatchenko murdered Mr. Wharf, you are bound by your oath to bring in the highest degree of murder of which you are convinced he is guilty beyond a reasonable doubt.� Contrary to the defendant's assertion, this excerpt is a correct and commendable*729 restatement of the jury instruction that we suggested in Commonwealth v. Dickerson, 372 Mass. 783, 798 n. 6, 364 N.E.2d 1052 (1977). Accordingly, we conclude that the judge's instructions contain no error.

Finally, we have carefully examined the record as we are required to do under G.L. c. 278, � 33E. We decline to revise the jury verdict of guilty of murder in the first degree.

Judgment affirmed.

Mass.,1982.
Com. v. Diatchenko
387 Mass. 718, 443 N.E.2d 397

+1

Indeed.

If I did that to a convicted felon in prison I would go to prison. Excessive force, no matter what you say.

Yes, absolutely.

FINALLY, a teacher thread I can get behind...