Opinion
09-P-2264
11-02-2011
COMMONWEALTH v. DARRYL GREEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Darryl Green, was convicted in Superior Court of possession of a firearm without a license in violation of G. L. c. 269, § 10(a). He claims that audiovisual evidence should have been suppressed, having been obtained in violation of G. L. c. 272, § 99, and art. 14 of the Massachusetts Declaration of Rights, and that trial counsel was ineffective for failing to object on due process grounds to preindictment delay by the Commonwealth. Because the recording was made by a Federal officer acting within his authority and the Commonwealth did not delay recklessly or intentionally in order to prejudice the defendant, we affirm.
The wiretap statute, G. L. c. 272, § 99, and art. 14 generally require that all parties to a communication consent to a secret recording thereof. See Commonwealth v. Blood, 400 Mass. 61, 66, 68-74 (1987). However, this requirement does not apply to 'officers of the United States of America . . . acting pursuant to authority of the laws of the United States and within the scope of their authority.' G. L. c. 272, § 99 D 1 c. See Commonwealth v. Gonzalez, 426 Mass. 313, 315-317 (1997). It is not sufficient for a Federal officer to be involved in an investigation in order for the exception to apply; a State-oriented operation is subject to this rule even if a Federal officer is involved in a subsidiary role. See Commonwealth v. Jarabek, 384 Mass. 293, 297 (1981). In the instant case, however, the motion judge found that the audiovisual recording was conducted at the direction of an assistant United States attorney and an agent of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), using an ATF informant, in a van procured by ATF, using surveillance equipment installed by representatives of the Federal Drug Enforcement Administration, with the expectation that the evidence would be used in a Federal murder in aid of racketeering prosecution. 'The judge's findings of fact are binding in the absence of clear error.' Commonwealth v. Welch, 420 Mass. 646, 651 (1995). There is ample support in the record for the motion judge's findings, and thus they are not clearly erroneous. Given the predominant Federal focus and involvement in the investigation, the motion judge did not err in denying the motion to suppress. See Commonwealth v. Gonzalez, supra.
Nor is there any merit to the defendant's contention that his counsel was ineffective for failing to claim that his due process rights were violated by the Commonwealth's preindictment delay. In order to prevail on a due process claim for preindictment delay, '[t]he defendant bears the heavy burden of showing that there was prejudice and that the 'delay has been intentionally undertaken to gain a tactical advantage over the accused or has been incurred in reckless disregard of known risks to the putative defendant's ability to mount a defense." Commonwealth v. Fayerweather, 406 Mass. 78, 86 (1989), quoting from Commonwealth v. Best, 381 Mass. 472, 484 (1980). The only prejudice putatively suffered by the defendant is that the identity of a 911 caller, who said that a person not matching the defendant's description shot Terrell Gethers, was lost. However, the defendant was acquitted of murder. Even had this person testified that the defendant did not commit the shooting, it would not have been inconsistent with the defendant's admission that he possessed a firearm on the day of the shooting.
There is nothing in the record to indicate whether the decision to move to dismiss based only on the defendant's right to a speedy trial under the Sixth Amendment to the United States Constitution was a strategic choice on the part of counsel or if it was based on instructions by the defendant. In making his ineffective assistance claim here, he does not have the benefit of a record that could have been developed on a motion for a new trial in the court below. Raising the issue for the first time on direct appeal is 'strongly disfavor [ed].' Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
Moreover, the defendant has not shown reckless delay on the part of the Commonwealth. The Commonwealth delayed charging the defendant for more than five years, not because of reckless investigative practices, but because the defendant was being prosecuted by Federal authorities for the same underlying conduct. The Commonwealth only sought indictments after the Federal racketeering and murder charges were dismissed following adverse rulings in a companion case. Even if the Commonwealth were negligent in failing to discover and follow up on investigative leads such as the 911 call, that does not rise to the level of recklessness. See Commonwealth v. Fayerweather, supra at 87 n.5 ('The judge's finding that the police did not exercise reasonable diligence does not alone support a finding of recklessness. We have held that even a showing of negligent conduct on the part of the police is insufficient to establish a due process violation'). The defendant has pointed to no evidence that the Commonwealth was aware of risks to his ability to mount a defense and recklessly disregarded them. Cf. Commonwealth v. Ward, 14 Mass. App. Ct. 37, 43 (1982) (no reckless delay when new developments caused Commonwealth to reopen investigation that resulted in defendant's indictment more than five years after crime was committed). The defendant's counsel was not ineffective for failing to make a due process argument based on preindictment delay because that contention was not meritorious. See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007) ('An ineffective assistance claim based on the failure to bring a motion requires the defendant to show that the motion would likely have been granted'); Commonwealth v. Mathews, 450 Mass. 858, 873 (2008) ('Ultimately, the defendant must demonstrate that trial counsel would have been successful had he filed a motion to dismiss').
The defendant does not argue that the Commonwealth intentionally delayed prosecution in order to prejudice the defendant.
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Judgment affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),