Opinion
15-P-278
04-28-2016
COMMONWEALTH v. MICHAEL JOHNSON.
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, Michael Johnson, appeals from his conviction of possession of cocaine with intent to distribute, in violation of G. L. c. 94C, § 32A(c). The defendant claims that counsel was ineffective for failing to move to suppress the fruits of the warrantless search of another person's cellular telephone. Because defense counsel's conduct in this regard did not fall "measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we affirm.
Background. Worcester police Officer Jeff Carlson observed what he believed to be a drug transaction between the defendant and another man, later identified as Mark Suprenant. After the transaction, Carlson stopped Suprenant and searched him, seizing a small baggie of "crack" cocaine from Suprenant's right front pocket and Suprenant's cellular telephone. Carlson used Suprenant's telephone to call the last number dialed and arranged to meet the person who answered for another drug deal. After one more call the defendant arrived at the designated location, where he was arrested and found to be in possession of crack cocaine.
We state the facts as found by the motion judge, which the defendant does not dispute. See Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008); Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
Defense counsel on June 14, 2011, filed a motion to suppress the search of the defendant on the ground that the police lacked probable cause to arrest him. An evidentiary hearing was held on July 8, 2011, and the judge denied the motion on August 9, 2011. The defendant was convicted after a jury trial held in late February, 2013.
Although the transcript of the hearing and the judge's memorandum of decision indicate the hearing was held on July 6, 2011, the docket indicates the hearing was held on July 8, 2011. See Commonwealth v. Denehy, 466 Mass. 723, 727 (2014), quoting from Savage v. Welch, 246 Mass. 170, 176 (1923) ("Docket entries 'import incontrovertible verity' and 'stand as final' unless corrected by the court").
On appeal, the defendant contends that in arguing the motion to suppress, counsel should have asserted that the search of Suprenant's telephone violated the defendant's constitutional rights, and that counsel's failure to do so constitutes ineffective assistance of counsel. To succeed on this ground, however, defense counsel would have had to persuade the motion judge to make two leaps of legal logic. First, counsel would have had to convince the judge to recognize the concept of "target standing," which the Supreme Judicial Court had considered in a number of cases since 1990 but never adopted. See Commonwealth v. Santiago, 470 Mass. 574, 577-578 (2015). Second, counsel would have had to argue that the search of a cellular telephone incident to an arrest required a warrant, a proposition that was not established until 2014. See Riley v. California, 134 S. Ct. 2473 (2014). Indeed, the Supreme Judicial Court's most analogous decision, which was issued between the time of the defendant's suppression motion and the trial, held that the "limited search of the recent call list on the defendant's cellular telephone was permissible under both the Fourth Amendment and art. 14." Commonwealth v. Phifer, 463 Mass. 790, 795 (2012).
To prevail on a claim of ineffective assistance of counsel, the defendant must show that "there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and that, as a result, the defendant was "likely deprived . . . of an otherwise available, substantial ground of defence." Saferian, 366 Mass. at 96. The defendant has not made this showing.
With respect to his failure to assert target standing, "[t]rial counsel is not ineffective for failing to challenge well-settled Massachusetts law." Commonwealth v. Holliday, 450 Mass. 794, 813 (2008). "While counsel may choose to make such a futile appeal in an attempt to seek a change in the law, the failure to do so cannot have rendered her performance 'measurably below that which might be expected from an ordinary fallible lawyer.'" Commonwealth v. Boria, 460 Mass. 249, 253 (2011), quoting from Saferian, supra.
Even if the search had involved the defendant's own telephone and he did not need to rely on target standing, defense counsel was not ineffective for failing to urge the motion judge to disregard what was then the majority view of the appellate courts, see Phifer, supra at 794 n.5, in anticipation of the future holding of Riley. "To meet the constitutional requirements of effectiveness, an attorney need not be clairvoyant as to . . . future shifts in the legal landscape." Commonwealth v. Baran, 74 Mass. App. Ct. 256, 272 n.23 (2009). In short, the failures that the defendant now attributes to counsel cannot amount to ineffective assistance.
Judgment affirmed.
By the Court (Cypher, Katzmann & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 28, 2016.