Opinion
No. 11–P–155.
2012-12-4
COMMONWEALTH v. Adam NAYLOR.
By the Court (GRASSO, FECTEAU & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for new trial. He was convicted, after a jury trial in the Superior Court, for an assault and battery by means of a dangerous weapon and various firearms offenses. He claims that he received ineffective assistance of counsel in violation of his constitutional rights in connection with the central issue of this case: his identification by one of two shooting victims and his defense of mistaken identity and alibi. After our consideration of a consolidated appeal to this court from his conviction and the initial denial of his motion for new trial, we vacated the order denying the motion and remanded it for an evidentiary hearing. Following the hearing, the motion judge again denied the motion, ruling that the defendant had not met either prong of the two-prong test under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant again appeals the denial of the motion. He also takes issue with the judge's denial of his motion for postconviction discovery. We affirm. To warrant a new trial on ineffective assistance of counsel grounds, counsel's failings must be so grave, so fundamental, that “the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984).
Commonwealth v. Naylor, 73 Mass.App.Ct. 518, 524 (2009) (concluding, in effect, that the motion judge should not have denied the defendant's motion for a new trial on the basis of affidavits alone, “[i]n light of the contested nature of [the witness's identification of the defendant] and the unavailability of the trial judge to hear a motion for a new trial, ...” and the showing made by the defendant of a substantial issue on ineffective assistance of counsel).
In the defendant's motion for discovery, it was variously stated that: “The defendant is seeking records for the purpose of determining whether trial counsel's failure to obtain the requested records listed below deprived the defendant of a viable defense, specifically, misidentification and an alibi defense.... Appellate counsel is requesting the above-listed records in order to determine what difference a timely request for the records would have made to the defense. At trial, the defendant asserted a misidentification and alibi defense theory. Trial counsel was ineffective for failing to investigate fully the discrepancy between a victim's description of the shooter and the defendant's actual personal characteristics.” Given the nature of the defense at trial and the evidence that was obtained by the defendant by the time of trial, we are not persuaded that the defendant made “a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial.” Commonwealth v. Morgan, 453 Mass. 54, 61–62 (2009), quoting from Commonwealth v. Daniels, 445 Mass. 392, 407 (2005).
In evaluating trial counsel's performance, judicial scrutiny must be highly deferential. Id. at 689. “The deference we give to defense counsel's strategic judgment in determining whether it was manifestly unreasonable reflects the strong presumption that counsel knows best how to defend a client.” Commonwealth v. Glover, 459 Mass. 836, 843 (2011). Further, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable....” Strickland, supra at 690.
“When a motion judge has not presided at the trial, we defer only to the judge's assessment of the credibility of witnesses at the evidentiary hearing on the new trial motion, but we consider ourselves in as good a position as the motion judge to assess the trial record.... Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 754–755 (2008) (internal quotations and citations omitted). This has been described as a heavy burden. Commonwealth v. Lao, 450 Mass. 215, 221 (2007), S. C., 460 Mass. 12 (2011).
The defendant's contention of ineffective assistance chiefly involves two alleged errors of omission by trial counsel: (1) her decision to not use a State police booking photograph of the defendant that showed him with long, wild hair, in contrast to the photograph used by police for the array shown to the witnesses in which the defendant appeared with short hair; and (2) to not utilize a description, given to Officer McNeil a short time after the shooting, that the occupants of the car in question were three “young, light-skinned, black males” in apparent contrast to the darker skin tone of the defendant. The judge decided, after hearing, that the “defendant ha[d] failed to demonstrate that he was deprived of effective assistance of counsel.” She determined that counsel's strategy of a vigorous cross-examination of Lawrence Akers, the one victim who identified the defendant, and her avoidance of doing so with Prez Cope, the other shooting victim who did not, was “not manifestly unreasonable” in spite of these omissions, primarily because the potential benefits in utilizing this evidence did not outweigh the risks. See Commonwealth v. Finstein, 426 Mass. 200, 203 (1997), and Commonwealth v. Martin, 427 Mass. 816, 822 (1998).
This latter claim is without merit. During trial counsel's cross-examination of Lawrence Akers, he denied having given this description to either the police or to Prez Cope and testified that he had only told Cope that the shooter was young-looking.
Turning first to Cope, the one constant in his statements to police, in his statements to the defense investigator, and in his testimony was that the shooter wore a hat, telling police that it was a baseball-style cap with the letter “A.” He told police that he was unable to give descriptive details of the shooter, but told the investigator that the shooter was not the defendant. At trial, Cope testified that he could not see the shooter's face and that he had not identified the defendant's photograph in the array as the shooter, notwithstanding his having known him previously. Moreover, trial counsel obtained his agreement that he had not seen the defendant that night and would have recognized him if he had. We fail to discern error or an abuse of discretion in the judge's finding that trial counsel's strategic decision to not further examine Cope about the shooter's features was not unreasonable, especially as to the length of his hair either with or without the possible use of a photograph. Given the uncertain benefits and risks of examining a witness who admitted that he could not identify the shooter, and who had given differing statements pretrial, trial counsel confronted a risk in showing a photograph that may have triggered an inopportune identification of the defendant.
Akers, on the other hand, had identified the defendant from a photo array that was compiled by police based upon a discussion between Cope and Akers: Akers told Cope that he thought the shooter looked like a person he knew as Leonard Naylor, but younger, and Cope stated that he had gone to school with a younger brother of Leonard's, named Adam. Trial counsel sought to exploit this suggested predisposition on the part of Akers to identify the defendant, having in mind that the witness never provided police with a description of the shooter in any detail; this she sought to do while keeping in the jury's view the suddenness of this event that occurred at night, while two vehicles, side-by-side, were starting to move away from a red light. Additional facts included that the vehicle in question was seen to have tinted windows, which when rolled up at first, prevented pertinent observations of its occupants. Akers believed the passenger in that vehicle appeared to be saying something, and as he began to drive forward, he was shot as he looked down to lower the volume on his car radio. Counsel also elicited the fact that Akers provided his first formal statement to police after identifying the defendant's photograph, arguably tainting any description given thereafter.
The motion judge determined that the length of the defendant's hair was not a defining factor in the victim's identification of the defendant, given the hat worn by the shooter, and concluded that trial counsel's choice not to use the State police photo of the defendant taken approximately one month before the shooting during cross-examination of the victims or otherwise was not unreasonable. The judge concluded that trial counsel did not make a tactical error in omitting the use of this photograph. Instead, she made a reasonable strategic choice, in conjunction with an alibi defense supported by the testimony of the defendant's family and friends, to cross-examine Akers and to argue for the likelihood of misidentification by Akers, together with the fact that Cope was unable to identify anyone especially the defendant, whom he knew. In doing so, trial counsel demonstrated that Akers's failure to provide police with any distinguishing features of the shooter was more consistent with the fleeting nature of the crime, and to the extent that Akers was able to identify the defendant bore only on the fact that he was predisposed to do so.
This State police photo was described by the judge as depicting the defendant with “shoulder-length unkempt corn-braids, a moustache, and full beard,” which the judge noted to be “very different” than the photo utilized by police in the photo array, taken about two years earlier, which showed the defendant with “short hair, moustache, a strip of hair below the lower lip, and what appears to be a modest amount of unshaven hair growth along the edge of his chin and underneath it.” Notwithstanding those differences in facial and head hair, the judge noted that the defendant's appearance during the motion hearing “more closely resembled” that in the photo array picture and that trial counsel's testimony was that when she first met the defendant, he did not appear as shown in the State police photo. Moreover, during the motion hearing, the defendant was described by members of his family as usually wearing his hair pulled back or in braids close to the head, in contrast to the appearance of the defendant in the State police photo. Indeed, the defendant's brother stated he could not recognize the defendant from this photo.
We fail to discern an abuse of discretion or other error of law in the judge's denial of the motion for new trial.
Consequently, we affirm.
Order denying motion for new trial affirmed.