Opinion
13-P-1037
04-06-2017
COMMONWEALTH v. Kevin HAMILTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in the Superior Court of two counts of distribution of cocaine, G. L. c. 94C, § 32A(c ), and as to both counts, was found guilty of being a subsequent offender, G. L. c. 94C, § 32A(d ). The trial judge denied the defendant's motion for a new trial; in this consolidated appeal we consider the convictions and the denial of the new trial motion. We refer to the relevant undisputed facts as they arise in our consideration of the issues raised by the defendant on appeal.
The judge allowed the defendant's motion to dismiss both school zone charges, G. L. c. 94C, § 32J.
Ineffective assistance of counsel. The defendant asserts that he was deprived of effective assistance in two respects: (1) his counsel's failure to move to suppress evidence of an out-of-court identification that the defendant characterizes as unnecessarily suggestive, and (2) his counsel's failure to move to dismiss the indictment when it became apparent that the Commonwealth had failed to comply with its discovery obligations.
1. Motion to suppress evidence. The theory of the defense was misidentification. The undercover officer had not previously encountered the defendant at the time he made the two purchases on which the charges are based; he learned the defendant's name from another officer who knew the defendant from previous interactions, and he then confirmed the identity by viewing the defendant's picture in the registry of motor vehicles (RMV) database. The officer who was previously familiar with the defendant also orchestrated a street encounter with the defendant to confirm the identification.
On appeal, the defendant asserts that it was ineffective assistance to fail to move to suppress the out-of-court identification based on a single photograph. We are unpersuaded by this argument. Identification by an undercover officer shortly after conducting a controlled purchase may be based on a single photograph. See Commonwealth v. Austin, 421 Mass. 357, 361-362 (1995) ; Commonwealth v. Martinez, 67 Mass. App. Ct. 788, 791-792 (2006). It is additionally pertinent in this case that both officers described the defendant with particularity, including their testimony that the defendant had a distinctive tattoo of a dollar sign on his neck. The judge did not err in crediting defense counsel's affidavit stating that he had considered a motion to suppress the identification, but determined it would enjoy little chance of success. See Commonwealth v. Whitlock, 74 Mass. App. Ct. 320, 324-325 (2009). On this record the defendant can satisfy neither prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
In view of our conclusion that the out-of-court identification was proper, we need not address the defendant's argument that his counsel's lack of effective assistance included the failure to move to suppress the officers' in-court identification based on a tainted out-of-court identification.
2. Motion to dismiss. The discovery provided to the defense by the Commonwealth was initially inaccurate in two particulars. The officer who first supplied the defendant's name to the undercover officer was misidentified, and the photograph that the undercover officer viewed for confirmation of the defendant's identity was produced in discovery only after another photograph, taken after the fact, was mistakenly provided to the defense. Additionally, at trial it became apparent that during discovery the Commonwealth had failed to produce the surveillance report of one of the undercover police encounters with the defendant. That failure, in turn, alerted the defendant to the fact that only two officers, not three, had participated in identifying him because the officer who encountered him on the street was the same officer who had identified him initially.
The defendant characterizes these missteps as prosecutorial misconduct rendering ineffective counsel's failure to move to dismiss the indictment. The judge found that the missing surveillance report was exculpatory and subject to mandatory disclosure under Mass.R.Crim.P. 14, as appearing in 442 Mass. 1518 (2004). The judge also concluded that the Commonwealth had been inept and unprofessional, but found no evidence of bad faith. We review the judge's determinations for abuse of his broad discretion to evaluate what he justifiably called "bungl[ing]" by the Commonwealth, and discern no such abuse or error of law. Commonwealth v. Baldwin, 385 Mass. 165, 176-177 (1982). In the absence of bad faith, the overriding consideration is whether, and to what degree, the defendant was prejudiced. Commonwealth v. Buckman, 461 Mass. 24, 36-37 (2011).
The failure to produce the surveillance report was itself deemed to be exculpatory specifically because the surveillance report was written for the second transaction and not for the first transaction after which the defendant had already been identified by the second officer. It therefore provided some basis for impeachment of the undercover officer's testimony, and had the potential to undermine the identification. However, the undercover officer also testified that he did not author the surveillance report personally, rendering his testimony no more than a statement of belief based on common practice. To the extent this limited testimony, coupled with the initial production of the incorrect photograph from the RMV, provided an opportunity for impeachment, defense counsel took full advantage. The judge found no risk that the defense had been prejudiced, given the cross-examination of the officers effectively highlighting inconsistencies in their accounts of the procedures used to identify the defendant, emphasizing the undercover officer's delay in writing the buy report of the October 20, 2010, controlled purchase, eliciting the undercover officer's concession about the accidental destruction of the notes containing the serial numbers of the purchase money, and repeating the error in producing the incorrect photograph prior to trial.
The Commonwealth's missteps provided the defendant with an advantage to the extent that the lack of production, rather than the substance of the report, was exculpatory.
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In sum, the discovery failures at issue did not demonstrate bad faith by the Commonwealth and resulted in no discernible prejudice to the defendant. The judge did not err in concluding that the failure to pursue either a motion to suppress evidence or a motion to dismiss did not constitute ineffective assistance.
3. False testimony. The defendant asserts that the introduction of the incorrect photograph at trial amounted to the knowing introduction of false testimony by the prosecutor, requiring reversal on due process grounds. The trial judge determined that the evidence did not establish that the prosecutor knew that the testimony, in which the undercover officer denied producing the incorrect photograph, was false. The record indicates that the photograph was produced by the district attorney's office (rendering the testimony uncontradicted), and that the error was corrected when it came to light. The defendant's claim that the prosecutor elicited false testimony may charitably be described as strained, and need not detain us.
Judgment affirmed.
Order denying motion for new trial affirmed.