Opinion
13-P-314
06-19-2015
COMMONWEALTH v. KEVIN HAMEL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kevin Hamel, appeals from the denial of his motion for a new trial, for release, and for a Franks hearing. The defendant also filed a direct appeal from several convictions related to the abuse of his wife, for violation of a restraining order, and possession of a firearm without a firearm identification (FID) card. In addition the defendant appeals from a single justice order denying his motion for stay of sentence. We affirm.
Discussion. Jail calls. The defendant argues that the Commonwealth failed to follow the required procedure pursuant to Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979), to obtain the recordings of the defendant's calls from jail and, as a result, a suppression hearing should have been conducted and the calls should have been suppressed. We disagree. The trial judge properly concluded "that suppression of improperly subpoenaed records is not warranted in the absence of prejudice." Commonwealth v. Hart, 455 Mass. 230, 243 (2009). Here, the defendant had notice at least by October 27, 2011, that the Commonwealth intended to use the jail calls at trial. The defendant was provided with copies of the transcript and tapes in adequate time to prepare for trial, which began on November 9, 2011, and, as a result, there was no error.
The defendant also argues that letters he sent from jail to his neighbor should have been suppressed because they were improperly obtained. The defendant alleged that the Commonwealth had the letters before the search warrant for his neighbor's home issued and the search warrant was defective. There is no evidence in the record that the Commonwealth had the letters prior to executing the search warrant. Moreover, the defendant failed to provide us with a full transcript of the grand jury proceedings, which would have indicated what evidence was presented to the grand jury. Further, for the reasons stated in the Commonwealth's brief from page 28-30, the defendant does not have standing to challenge the search warrant for his neighbor's home.
Ineffective assistance of counsel. The defendant argues that he received ineffective assistance of counsel. This claim has already been reviewed and denied by the motion judge, who was also the trial judge. See Commonwealth v. Smith, 449 Mass. 12, 22 (2007) ("Where the motion judge was also the trial judge, she could rely on her familiarity with the facts of the case, as she did here, and her conclusion is entitled to 'special deference'" [citation omitted]). We agree with the trial judge's conclusion that the defendant failed to meet his burden of proving his ineffective assistance of counsel claim. See Commonwealth v. Bertrand, 385 Mass. 356, 364 (1982) ("To the extent that the defendant's motion [for a new trial] was based on facts which were neither agreed upon nor apparent on the face of the [trial] record, he had the burden of proving such facts").
The defendant makes various allegations concerning how his defense counsel was ineffective. Aside from the submissions discussed below, the only evidence before the trial court was the defendant's own affidavit, which the trial judge did not have to credit. Commonwealth v. Marrero, 459 Mass. 235, 241 (2011) ("The judge was entitled to reject summarily any claim supported only by the defendant's self-serving affidavits" [citation omitted]). To support the claim that the attorney-client relationship had deteriorated and his counsel failed to communicate with him, the defendant relies on correspondence with counsel that occurred after trial when his trial counsel had already withdrawn and was no longer representing him. The defendant also relies on the trial counsel's sentencing memorandum to support his claim that defense counsel failed to advise him concerning the sentence he could serve. However, the sentencing memorandum is not evidence of the advice counsel provided to the defendant.
C onsent for searches of the defendant's home. The defendant argues that the police did not have valid consent to allow them to search the defendant's home on either occasion. We see no evidence on the docket that the defendant filed a motion to suppress. As a result, we treat this as an ineffective assistance of counsel claim for failing to move to suppress the evidence. "[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
Here, the defendant now claims he did not voluntarily consent to the search of his property for firearms. However, the judge was not required to credit this assertion, particularly where there is a consent form signed by the defendant that indicates a defense counsel was present for the search. Commonwealth v. Marrero, 459 Mass. 235, 241 (2011). The defendant also argues that his wife's consent to the search while he was already incarcerated was not effective because she did not possess a key to the garage that was searched and she was no longer living there. The defendant has not presented any evidence to support either contention.
The defendant asserts that on February 7, 2011, the Commonwealth stated that his wife was no longer living at the residence, which was prior to the search at issue. However, our record does not include any hearing or transcript associated with February 7, 2011.
"[U]nder art. 14 . . . a person may have actual authority to consent to a warrantless search of a home by the police only if (1) the person is a coinhabitant with a shared right of access to the home, that is, the person lives in the home, either as a member of the family, a roommate, or a houseguest whose stay is of substantial duration and who is given full access to the home." Commonwealth v. Porter P., 456 Mass. 254, 264-265 (2010). Here, the police officer testified on voir dire, before the judge allowed the fruit of the search to be admitted, that the defendant's wife was living at the property at the time of the search and let the police officers into the garage, which she had a key to open. The defendant failed to meet his burden of demonstrating that it was likely a motion to suppress would have been allowed for either search.
Given the result we reach, the single justice did not err in denying the motion for stay of sentence.
Judgments affirmed.
Order denying motion for a new trial, for release, and for a Franks hearing, affirmed.
Order of single justice denying motion for stay of sentence, affirmed.
By the Court (Trainor, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 19, 2015.