Opinion
20-P-53
12-09-2021
COMMONWEALTH v. Swanie BURNETT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted by a jury of crimes arising from his shooting the victim on August 20, 2015, and his possession the next day of the handgun used in the shooting. On appeal from those convictions and from the denial of a motion for new trial, he argues that the evidence was insufficient to identify him as the shooter, his trial lawyer was ineffective in handling identification issues, and the two sets of indictments pertaining to events on the successive days should not have been joined for trial. We affirm.
Armed assault with intent to murder, G. L. c. 265, § 18 (b ) ; assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (c ) (i) ; carrying a firearm without a license, G. L. c. 269, § 10 (a ) ; and possession of a loaded firearm, G. L. c. 269, § 10 (n ).
Carrying a firearm without a license, G. L. c. 269, § 10 (a ) ; and possession of a large capacity feeding device, G. L. c. 269, § 10 (m).
Background. In a restaurant at about 2 A.M. on August 20, 2015, two Black men approached the victim, one of whom called the victim a "bitch." The restaurant was well lit, and so, although he did not know that man previously, the victim later identified him as the defendant. The victim left the restaurant with his girlfriend and her mother.
Walking away, the victim turned and saw the defendant and the other man following him. The defendant shot the victim five times and ran. An unknown witness telephoned 911, and a police radio alert issued describing two Black males, one wearing a red shirt and the other wearing a white shirt.
Minutes later, police responded to the area. About 400 yards from the shooting two Black men were walking together, one wearing a white shirt with dark sleeves and a pattern on the back, and the other wearing a white shirt. When they saw the officers the men separated; one walked up a driveway, and the other, the defendant, went onto a porch. Questioned by police, the defendant claimed he had been walking alone on the street. Police pat frisked him and found no gun, and so they let him go. Police never found the other man.
At about 7:30 P.M. on the evening of the next day, August 21, 2015, Officers Daniel Moynahan and Brian Phillips responded to a report of a person with a gun at an intersection about 300 hundred yards from the scene of the shooting. Approaching the intersection in a marked police cruiser, they saw the defendant grab his waistband and run. Phillips ran after him, and Moynahan followed in the cruiser.
Holding his waistband, the defendant ran onto a nearby college campus, where he leaned into a shrub. Phillips heard an item falling through the shrub and hitting the ground with a thump. After arresting the defendant, Phillips found under the shrub a handgun from which, a ballistician opined, cartridge casings and a projectile recovered from the scene of the shooting had been ejected. At booking, the defendant told Moynahan that Phillips was "fast," and he was "going to shoot" Phillips, but thought that Phillips "might have a wife and kids," so he gave up.
Police tried to interview the victim in the hospital, but he was reluctant to cooperate because he did not want to be a "snitch." About five weeks later, he went to the police station and viewed thousands of photographs in a computer-generated array. Among them was the defendant's booking photograph from August 21, 2015. The victim identified it as a photograph of the person who shot him, and said he was "[a] hundred percent" certain.
Sufficiency of evidence. The defendant argues that his convictions should be set aside because, he maintains, the evidence was in equipoise as to whether he was the shooter. In considering the sufficiency of the evidence, we view the facts in the light most favorable to the Commonwealth and consider whether there was evidence that could have satisfied a rational trier of fact of each element. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
As set forth above, there was ample evidence to permit the jury to find that the defendant was the shooter. That included the victim's testimony identifying him. Cf. Commonwealth v. Chin, 97 Mass. App. Ct. 188, 192, 195-196 (2020) (identity proven with evidence including testimony of witness identifying photograph of defendant with "one hundred percent" certainty as person who had sent text messages threatening to kill victim). It also included ballistics evidence that the handgun in his possession was the one used in the shooting. See Commonwealth v. Buttimer, 482 Mass. 754, 762-763 (2019) (ballistics evidence proved defendant's rifle was murder weapon). His identity as the shooter was also shown by evidence of his consciousness of guilt: his denial on August 20 that he had been walking with another man and his behavior on August 21, including his flight, his attempt to dispose of the handgun, and his statement that he contemplated shooting Phillips. See Commonwealth v. Jones, 477 Mass. 307, 318 (2017).
Ineffective assistance of counsel on identification issues. The defendant argues that he should have been granted a new trial because his trial counsel's handling of identification issues was ineffective. We assess trial counsel's performance under the familiar Saferian standard: whether it "f[ell] measurably below that which might be expected from an ordinary fallible lawyer," and "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because the same judge who presided at trial also ruled on the motion for new trial, the defendant faces "a very uphill road" to establish that the judge abused his discretion in denying the motion. Commonwealth v. Hammond, 50 Mass. App. Ct. 171, 178 (2000).
The defendant raises three specific complaints about his trial counsel's handling of identification issues. First, he argues that counsel should have moved to suppress the victim's identification of him as the shooter. To succeed on a motion to suppress, the defendant would have had to prove by a preponderance of the evidence that the police identification procedure was so unnecessarily suggestive and conducive to misidentification that it deprived him of due process. See Commonwealth v. Crayton, 470 Mass. 228, 234 (2014). Rather than try to meet that burden, trial counsel elicited on cross-examination of the victim that police left him alone for two hours while he viewed thousands of photographs before identifying one of them as depicting the defendant; counsel then argued in closing that was not "a valid identification process." However, as the trial judge noted, there was no evidence that police suggestively drew the victim's attention to the defendant's photograph. Indeed, as recommended in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009), a detective cautioned the victim that the shooter's photograph may or may not be among the photographs, and it was just as important to clear someone from suspicion as to identify a perpetrator. The defendant has not shown that his counsel's choice to refrain from moving to suppress the identification, and instead argue to the jury that the police did not follow a "valid" process, fell below the standard of an ordinary, fallible lawyer or deprived him of a substantial ground of defense. Cf. Commonwealth v. McWilliams, 473 Mass. 606, 615-620 (2016) (counsel not ineffective for not moving to suppress bank teller's identification of defendant from single photograph on passerby's cell phone taken nineteen days after robbery).
Second, the defendant argues that his trial counsel should have done more to highlight the inability of the victim's girlfriend to identify the defendant and the inconsistencies in the descriptions of the color of the shirt worn by the shooter and that worn by the defendant a few minutes later. On cross-examination of the girlfriend, trial counsel succinctly elicited that she never saw the shooter, and that the person she saw running from the shooting was wearing a black shirt. From that, counsel argued in closing that the defendant could not have been the shooter because police saw him a few minutes later wearing a different shirt. Even assuming that one could quibble with counsel's omission of the detail that the 911 caller had mentioned a red shirt, we agree with the judge that counsel's handling of those issues did not fall short of the Saferian standard. Cf. Commonwealth v. Henderson, 486 Mass. 296, 304 (2020) (rather than introduce witness's prior statement incorrectly describing defendant's height, defense counsel strategically argued that eyewitness did not see anything and was malleable witness).
Third, the defendant argues that his trial counsel was ineffective for not hiring an expert on identification evidence. From evidence he elicited on cross-examination of the victim, defense counsel argued in closing that the reliability of the victim's identification of the defendant as the shooter was undermined by the trauma of the event, the lighting conditions, the victim's brief opportunity to see the shooter, and medical records and testimony implying that before the shooting the victim had ingested opiates, cannabinoids, and alcohol. That strategy did not fall below the standard of an ordinary, fallible lawyer. See Commonwealth v. Ayala, 481 Mass. 46, 64 (2018) (defense counsel not ineffective who "vigorously challenged" witness's identification of defendant but did not call identification expert).
Nor did that strategy deprive the defendant of a substantial ground of defense. Based on an affidavit of an identification expert submitted with his motion for new trial, the defendant argues that an expert could have told the jury about factors that may undermine the reliability of eyewitness identification. The judge rejected that claim, noting that trial counsel was "well aware of the variables that bear on the reliability of an eyewitness identification," as shown by his closing argument. In accordance with the Supreme Judicial Court's Model Jury Instructions on Eyewitness Identification, 473 Mass. 1054-1058 (2015), and Commonwealth v. Gomes, 470 Mass. 362, 379-388 (2015), the judge provided the jury with a list of factors to consider in determining the accuracy of an identification, including those mentioned in defense counsel's closing and in the defense expert's affidavit supporting the motion for new trial. Where trial counsel's closing argument and the judge's instructions told the jury about those factors, a defense expert's testimony echoing them would not have materially aided the defense. See Henderson, 486 Mass. at 306-307.
Joinder. Finally, the defendant argues that a substantial risk of a miscarriage of justice arose when, without objection, the judge allowed the Commonwealth's motion to join his prosecution for the crimes arising from the August 20 shooting of the victim with that for his possession on August 21 of the handgun used in the shooting. Under Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979), two or more offenses may be joined if they are "related offenses ... based on the same criminal conduct or episode, or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." A judge may join related offenses for trial unless joinder is "not in the best interests of justice." Mass. R. Crim. P. 9 (a) (3).
Here, the record shows that the crimes related to the shooting of the victim on August 20 and those related to the defendant's possession on August 21 of the handgun used in the shooting all took place on successive days and in the same geographic area. No substantial risk of a miscarriage of justice arose from their joinder. See Commonwealth v. Hernandez, 473 Mass. 379, 393 (2015) (armed robbery properly joined with home invasion and double murder five hours later); Commonwealth v. Magri, 462 Mass. 360, 364 (2012) (offenses comprising two-month "crime spree" of similar offenses properly joined). See also Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 159 (2008).
Judgments affirmed.
Order denying motion for new trial affirmed.