Opinion
No. 15–P–505.
12-23-2016
COMMONWEALTH v. Ivano CORREIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, after a jury trial in the Superior Court, of two indictments for armed home invasion, G.L. c. 265, § 18C, and four indictments for larceny over $250. He argues that the trial judge erred by failing to give his requested instruction on eyewitness identification incorporated in the recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence (Study Group) and later adopted in Commonwealth v. Gomes, 470 Mass. 352 (2015), and that the his trial attorney was ineffective in numerous ways. We affirm.
Background. We discuss the facts at trial relevant to the defendant's identification as one of the perpetrators of the home invasion.
Three armed men broke into three apartments in a house in Brockton in the middle of the night when many of the residents were at home, ransacked the dwellings, and stole various items. The intruders' faces were obscured during the invasion, by masks or a hoodie tied tightly with "just a small opening." Two of the residents, Shawn McDonald and Jennifer Armstrong, were able to describe each intruder in general terms—one was short and stocky, one was tall, and one was of medium height; all three men had Cape Verdean accents. During the incident, the "tall" intruder removed his mask for four to five seconds while he was trying to break a lock on a footlocker. McDonald saw his face from his chin to his forehead from an arm's length away.
Six days after the incident, McDonald glanced at the front page of the Brockton Gazette newspaper, which displayed photographs of about twenty individuals. He recognized one of the photos as that of the "tall" individual from the home invasion. The next day, the boyfriend of another resident pointed out this same photograph out to McDonald. McDonald then called the police and identified the defendant by this photograph.
Discussion. 1. Eyewitness identification instructions. At trial, the defendant requested that the judge incorporate the Study Group recommendations into her jury instructions. Although the judge indicated that the requested instruction was much too extensive, she noted that "[t]here may be some value in it." Accordingly, the judge prepared a preliminary jury instruction taking some language and some concepts from the Study Group recommendations.
The trial was held approximately two months before the Supreme Judicial Court adopted many of the Study Group's recommendations in Gomes. The court "intend[ed] the new instruction to have no retroactive application." Gomes, supra at 376.
In her initial instructions, delivered before the Commonwealth called its first witness, the judge instructed the jury to consider, among other factors that could affect a reliable identification, whether a weapon had been used in the incident, the amount of stress the witness was under, the time between the incident and the identification, and "other external factors such as whether the witness was exposed to opinions, descriptions, or identifications by other individuals, to photographs or to newspaper accounts or to any other information or influence." These factors, relevant to the particular circumstances of the case, were among those included in the Study Group's recommendations. See Gomes, supra at 372–375. In her final charge, the judge read the model instructions regarding identification set out in Commonwealth v. Rodriguez, 378 Mass. 296, 301–302 (1979), including the instructions from Commonwealth v. Pressley, 390 Mass. 617, 620 (1983), raising the possibility of an honest but mistaken identification of the defendant. She declined to give any additional instructions "until the S[upreme] J[udicial] C[ourt] directs us that that's what we should be doing," but she did provide the jury with a written copy of her preliminary instruction on identification.
While the Supreme Judicial Court had not yet adopted the Study Group's recommendations at the time of the defendant's trial, and they were not intended to be applied retroactively, the defendant was still entitled to a jury instruction on identification in accordance with Rodriguez, supra. The instructions given by the judge were more than sufficient. A trial judge has "considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration." Commonwealth v. Newell, 55 Mass.App.Ct. 119, 131 (2002). Here, "we note that trial counsel was successful in requesting eyewitness identification jury instructions that were more favorable than the typical jury instructions given at the time." Commonwealth v. McWilliams, 473 Mass. 606, 619 n. 5 (2016). Evaluating the jury instructions as a whole, see Commonwealth v. Waite, 422 Mass. 792, 804 (1996), we see no abuse of discretion in the judge instructing the jury as she did.
2. Ineffective assistance of counsel. The defendant also claims, for the first time on appeal, that his trial counsel was ineffective in several respects: failing to make a timely objection to the Commonwealth's closing argument, failing to investigate a possible alibi defense, and failing to call certain witnesses, including an expert witness on identification. Our cases have clearly established that "the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). Claims of ineffective assistance may only be resolved on direct appeal if the "factual basis of the claim appears indisputably on the trial record." Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994).
The defendant did not file a motion for a new trial. However, his claim concerning defense counsel's late objection to the Commonwealth's consciousness of guilt argument can be resolved on the trial record alone. We review counsel's failure to object to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 295–296 (2002).
The defendant, in his closing, argued that his presence in New Hampshire after the incident, where he was visiting his girlfriend, was inconsequential; that he didn't attempt to flee and cooperated fully with the arresting officer; and that "he was arranging to go take care of that warrant on that very day." The prosecutor, in response, argued that the defendant's claim that he was on his way down to Massachusetts to "clear it up" was not credible, in part because there was no luggage in the defendant's car at the time he was arrested. This argument was a "fair response[ ] to the defendant's closing arguments, supported by inferences from the evidence." Commonwealth v. Grandison, 433 Mass. 135, 143 (2001). As the closing argument was proper, counsel cannot be said to be ineffective for failing to make a timely objection.
The Commonwealth and the defendant stipulated that an attorney had advised the defendant of the existence of this warrant three days before the arrest and again on the day of the arrest. On this record, we cannot see what defense counsel would have accomplished by calling the lawyer as a witness.
The defendant's claim that it was ineffective for counsel not to secure an identification expert to discuss the relative merits of identification procedures would normally be one not resolvable on the trial record alone. However, here the trial judge specifically ruled that she did not want witnesses to "get into expert ... testimony on [identification procedures]." Moreover, "[t]he jury were instructed on the dangers of eyewitness identification and factors to consider when deciding what weight to give to identification testimony." McWilliams, supra at 619 n. 5. Where counsel vigorously contested the identification of the defendant, successfully obtained a favorable preliminary instruction, and where the judge was not likely to admit expert testimony, the defendant has not satisfied his burden of showing that counsel was ineffective. See Commonwealth v. Watson, 455 Mass. 246, 257–259 (2009).
The defendant's other claims of ineffective assistance—failing to conduct further investigations or call certain witnesses—"cannot be resolved without some evidence bearing on the testimony that those witnesses would likely have provided." Adamides, supra at 344.
Judgments affirmed.