## Facts

- Two victims, Sonya Shurtliff and David Allen, were shot and killed in their Fall River apartment on June 13, 1996.
- The killings occurred shortly after a nearby drug raid that led to the seizure of drugs and the arrest of Julius Adams.
- After posting bail, Adams told his wife and Curtis Mitchell (a friend and drug customer living in the same building) that he suspected the victims had been police informants connected to the raid.
- The Commonwealth’s evidence supported a retaliation motive and linked Mitchell to the victims’ apartment and the shootings.
- Near the end of trial, after both sides had essentially rested, Mitchell told defense counsel he wanted to testify.
- Defense counsel believed Mitchell intended to give false testimony and raised the issue with the judge, invoking Mass. R. Prof. C. 3.3(e).
- The judge permitted Mitchell to testify in narrative form; counsel did not elicit the testimony through direct questioning and tailored closing argument to avoid assisting perjury.

## Issues

1. What level of certainty constitutes “knowledge” under Mass. R. Prof. C. 3.3(e) sufficient for counsel to conclude a client will commit perjury and to limit advocacy.
2. Whether counsel’s disclosure to the judge, use of narrative testimony, and constrained closing argument violated the defendant’s constitutional rights, including effective assistance of counsel and the right to testify.
3. Whether the trial judge erred in denying the motion for a new trial on affidavits without an evidentiary hearing.
4. Whether other asserted errors (lost potentially exculpatory evidence, denial of funds to interview witnesses, additional ineffective-assistance claims) required dismissal, a new trial, or other relief.
5. Whether relief was warranted under G.L. c. 278, § 33E notwithstanding the absence of reversible error.

## Decision

- The Supreme Judicial Court affirmed the convictions for two counts of first-degree murder and affirmed the orders denying a new trial and denying funds.
- The court held counsel had a sufficient factual basis to “know” the defendant intended to testify falsely, based on the defendant’s conflicting statements (including a prior admission) and inconsistency with other evidence.
- The court ruled the narrative-testimony procedure, combined with continued representation, did not violate the right to counsel or the right to testify because there is no right to present perjured testimony.
- The court found no error in resolving the new-trial motion on affidavits and crediting counsel’s affidavit over the defendant’s, given the judge’s familiarity with the trial.
- The court rejected claims based on lost evidence and denial of investigative funds and declined to grant relief under § 33E.

## Legal Principles

- A criminal defendant’s right to testify does not include a right to offer false testimony.
- Under Mass. R. Prof. C. 3.3(e), counsel must take remedial steps when counsel knows a client intends to commit perjury; “knowledge” requires a substantial factual basis, not mere suspicion, and does not require absolute certainty.
- When faced with anticipated client perjury, permitting the defendant to testify in narrative form, with counsel avoiding direct facilitation of the falsehood while continuing representation, can be constitutionally permissible.
- Ineffective assistance is not established where counsel’s conduct is consistent with professional obligations and does not fall measurably below expected performance, nor likely deprive the defendant of an otherwise available, substantial ground of defense.
- Motions based on lost evidence require analysis of governmental culpability, exculpatory value, and availability of comparable evidence; speculative claims and minimal culpability generally do not justify dismissal.
- Requests for public funds for investigation may be denied absent a showing the expenditure is reasonably necessary for an adequate defense.
- Under G.L. c. 278, § 33E, the court may grant extraordinary relief in first-degree murder cases but will not do so absent a basis in the record.

## Conclusion

The Supreme Judicial Court held that defense counsel’s disclosure and narrative-testimony approach in response to anticipated perjury satisfied Rule 3.3(e) and did not violate constitutional rights, and it affirmed the convictions and post-trial rulings, finding no ground for relief under § 33E.


Commonwealth v. Mitchell, 781 N.E.2d 1237 (Mass. 2003)