State v. Brewer

WATHEN, Chief Justice,

with whom CLIFFORD, J. joins, concurring.

[¶ 33] I concur with the result in this case but respectfully disagree with the Court’s alteration of the legal standard employed in evaluating claims of ineffective assistance of counsel. I do not agree that the phrase“measurably below that which might be expected from an ordinary fallible attorney” is without content. Furthermore, even if the Court’s analysis was correct, this particular case does not present a proper occasion for revision of the first prong of the constitutional analysis set out in Lang v. Murch, 438 A.2d 914 (Me.1981).

[¶34] In Lang , we adopted the standard employed in Commonwealth v. Saferian, 366 Mass. 89, 96 , 315 N.E.2d 878, 883 (1974), to resolve ineffective assistance of counsel claims. This standard involves inquiry into both the allegedly deficient nature of the representation and the resulting prejudice. In determining whether there has been deficient performance, we ask whether there has “been serious ineompetency, inefficiency or inattention of counsel — performance by counsel which falls measurably below that which might be expected from an ordinary fallible attorney_” Vaughan v. State, 634 A.2d 449, 449-450 (Me.1993) (quoting Lang, 438 A.2d at 915 ). Since Lang , this standard for evaluating allegedly deficient performance by counsel has been given content by this Court through case-by-ease application. See, e.g., Tribou v. State, 552 A..2d 1262, 1264 (Me. 1989). The standard is still consistently applied by Massachusetts courts in deciding ineffective assistance claims. See, e.g., Adop *1148 tion of Brooke, 42 Mass.App.Ct. 680, 684-85 , 679 N.E.2d 569, 572 (1997). Furthermore, the Lang test is not at odds with applicable federal law. It has been held that the Lang test is functionally identical to the test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Kimball v. State, 490 A.2d 653, 656 (Me.1985). Cf. Scarpa v. Dubois, 38 F.3d 1, 7 n.4 (1st Cir. 1994) (Massachusetts standard functionally identical to Strickland test).

[II35] The “measurably below” language set forth in Lang , thus, has been given a rich, context-based, functional definition by common law, case-by-case development. By its careful elucidation of semantic nuance, the Court ignores the method of the common law 4 and invites confusion by purporting to alter the Lang standard in the absence of a fully developed factual context demanding alteration of the law. Because counsel’s performance in the present case did not result in prejudice, we need not and should not address the question of whether counsel’s representation was deficient, let alone change the standard for evaluating the question. See Rickenbacker v. Warden, 550 F.2d 62 (2d Cir.1976) (refraining from modification of the applicable ineffective assistance rule when doing so would not alter the result of the ease). I endorse the instructions offered by the United States Supreme Court:

[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffctiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

Strickland, 466 U.S. at 697 , 104 S.Ct. at 2069 . I would affirm the judgment in this ease simply on the lack of prejudice to the defendant.

. ‘The life of the law has not been logic: it has been experience.” O.W. Holmes, The Common Law 1, 37 (1881).