Opinion
No. 2015–P–1269.
10-07-2016
COMMONWEALTH v. Daniel MOUNTAIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Daniel Mountain, appeals from the denial, without a hearing, of a motion for a new trial. The defendant claims that the motion judge erred in his order by (1) improperly denying that trial counsel was ineffective in failing to present a mental health defense during trial, misstating the defendant's sentence range, and improperly declining to revisit the defendant's sentencing structure. We affirm.
Background. The defendant was convicted in 2006 of aggravated kidnapping, G.L. c. 265, § 26 ; assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A ; larceny of a motor vehicle, G.L. c. 266, § 28(a ) ; burning of a motor vehicle, G.L. c. 266, § 5 ; assault and battery, G.L. c. 265, § 13A(a ) ; and larceny over $250, G.L. c. 266, § 30(1). The following facts are not in dispute.
The crimes took place after the defendant met the victim at a restaurant where she was bartending. The defendant made advances toward the victim over the course of the night and was repeatedly rebuked. Once the victim left her place of work, the defendant approached her at a second restaurant and continued his advances. Later, while the victim was driving home, she was attacked by a man with a knife, who had been hiding in her backseat. When the victim saw the headlights of a vehicle behind her, she wrestled with her attacker and was able to escape from her vehicle. Fortuitously, the approaching vehicle was a police cruiser. The victim's attacker, whom she identified as the defendant, then drove away from the scene in the victim's vehicle. The vehicle was found the next day completely burned.
Defense counsel's trial strategy was based on a theory of misidentification. During closing argument, he pointed to weaknesses in the Commonwealth's evidence, attempting to show that the victim identified the “man in the bar, not the man in the car” as her attacker.
In his closing argument, the defense attorney pointed to inconsistencies and weaknesses in the victim's identification of the defendant, including the following: the victim was able to describe the hair length of her attacker even though he wore a bandana that covered his hair almost completely; the victim had ingested alcohol and was terrified, panicked, and crying at the time of the attack, thus impairing her vision and perceptions; the victim testified that at the bar, the defendant was wearing sunglasses on his head and in the photo array from which she identified the defendant as her attacker, he was the only one wearing sunglasses on his head; the victim described a violent struggle with her attacker, but the defendant had no scratches or bruises the next day; and the next day, the defendant returned to the restaurant where the victim worked.
Following his convictions, the defendant was sentenced as follows: aggravated kidnapping, twenty-five to thirty years; assault and battery by means of a dangerous weapon, four to five years (concurrent); larceny of a motor vehicle, four to five years (consecutive to the aggravated kidnapping conviction); burning of a motor vehicle, two to three years (consecutive); assault and battery, five years of probation; and larceny over $250, five years of probation (concurrent). The defendant filed a motion to revise and revoke his sentence, which was denied by the sentencing judge. The defendant also filed a direct appeal. This court affirmed his convictions on appeal. See Commonwealth v. Mountain, 72 Mass.App.Ct. 1101 (2008). The defendant then filed another motion to revise and revoke his sentence, requesting that the court consider his alcoholism. This motion was denied and this court affirmed. See Commonwealth v. Mountain, 76 Mass.App.Ct. 1117 (2010).
In March of 2015, the defendant, proceeding pro se, filed a motion for a new trial and, in the alternative, a reduction in sentence, the denials of which are at issue in this appeal. In his motion, the defendant attached numerous pages of medical records amassed while awaiting trial in support of his claim of ineffective assistance of counsel. The defendant contends that his trial attorney should have investigated the defendant's mental issues and presented a defense based on these mental health records rather than on a theory of misidentification.
These mental health records were not part of the trial record.
Discussion. We review the denial of a motion for a new trial “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We discern no error.
1. Ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and that because of this lapse, the defendant was deprived of “an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made.” Commonwealth v. Aspen, 85 Mass.App.Ct. 278, 280 (2014), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
While the defendant proffered numerous pages of medical records in support of his motion for a new trial, he has provided no evidence that his trial counsel was aware or should have been aware of these medical records at the time of trial. Assuming that trial counsel did know or should have known of their existence, the defendant has failed to show how the information within the records could have been used in a reasonable trial strategy. Based on the medical records, the defendant appears to have suffered from anxiety, depression, and alcoholism in the months prior to trial. However, he offers no expert affidavit or any convincing explanation as to how these diagnoses could have affected his culpability during the commission of the crimes or have been used as a mitigating factor at sentencing. Additionally, defense counsel's decision at trial to present a misidentification defense was reasonable given the material available for cross-examination to undermine the victim's identification of the defendant.
The defendant offered no affidavit from his trial counsel, despite attempting to reach out by letter. The motion judge may take into account the “failure to provide pertinent information from an expected and available source.” Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004).
The motion judge properly reached the ineffective assistance of counsel issue in his order, and we agree that the defense's trial strategy was not manifestly unreasonable at the time. See Acevedo, supra at 442. In these circumstances, counsel's performance cannot be said to “fall measurably below that which might be expected from an ordinary fallible lawyer.” Saferian, supra. Where the defendant has failed to meet the first prong of the Saferian test, his claim must fail.
2. The defendant's sentence. The defendant argues that in his order denying the motion for a new trial, the motion judge incorrectly stated the defendant's sentence range. The motion judge stated that the defendant “was convicted in 2006 of aggravated kidnapping and various related counts. He was sentenced to [twenty-five to thirty] years in [S]tate prison”. The defendant's sentence under the kidnapping charge that the motion judge specified has a maximum of thirty years. The defendant received additional, consecutive sentences on other convictions which raised his total sentence to thirty-eight years. We find no error. The motion judge's statement of the sentence for aggravated kidnapping, the lead charge, was accurate. Moreover, the defendant fails to show how this claimed inaccuracy in the statement of his sentence total would be relevant to the ultimate legal conclusion of the motion judge on the ineffective assistance of counsel claim.
The defendant also argues that the motion judge's decision not to revisit the defendant's sentencing structure was in error. We find no error. The issues raised concerning the defendant's sentence were previously litigated and rejected and, therefore, the defendant “had an opportunity to obtain review of the determination of [his] motion.” Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005), citing Commonwealth v. Williams, 431 Mass. 71, 74 (2000). The defendant had twice challenged the appropriateness of his sentence through motions to revise and revoke. Both motions were considered by the sentencing judge and denied. The second motion, in which the defendant raised the issue of his alcoholism as a consideration, was appealed to this court and that denial was affirmed. See Mountain, 76 Mass.App.Ct. at 1117.
Conclusion. The defendant failed to raise any substantial issues in his motion, thus it was unnecessary for the motion judge to conduct a hearing. See Commonwealth v. Ortiz, 67 Mass.App.Ct. 349, 361 (2006). Accordingly, the motion judge did not abuse his discretion when he denied the defendant's motion for a new trial without further hearing.
To the extent that we do not address the defendant's other contentions, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ “ Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).