Opinion
10-P-1247
12-05-2014
COMMONWEALTH v. LANCE R. NORRIS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of three counts of armed assault with intent to murder and related offenses in connection with a shooting outside an apartment complex known as Dower Square in Pittsfield. The defendant appealed from his convictions and then filed a motion for a new trial, which was denied by the trial judge without a hearing. This is a consolidated appeal from the convictions and the order denying the new trial motion. For the reasons that follow, we affirm the judgments and the order denying the motion for a new trial.
The defendant was also convicted of three counts of possession of a firearm in connection with a felony, three counts of assault and battery by means of a dangerous weapon, and one count of carrying a firearm without a license. The indictment also charged the defendant with one additional count each of armed assault with intent to murder, possession of a firearm in connection with a felony, and assault and battery by means of a dangerous weapon, but the Commonwealth entered a nolle prosequi on these counts prior to trial.
Background. The jury could have found the following facts based on the evidence presented at trial. At around 2 A.M. on December 5, 2005, Donnell Saunders and Jabert Moore were in the parking lot at Dower Square when the defendant arrived in a car driven by Chris Bennett. Bennett was a friend of Saunders, and the two them were talking while the defendant approached Moore and asked him if he had any marijuana. For reasons that are not clear in the record, an argument ensued. As the altercation escalated, the defendant pulled out a gun and shot Moore in the neck. Saunders immediately intervened and as he was pulling Moore to safety, the defendant shot him twice, once in the back of each leg. Meanwhile, Saunders's girlfriend, Monica Sumpter, and another friend had come to the parking lot from Saunders's and Sumpter's apartment. Sumpter saw the defendant shoot and began to yell. The defendant then shot her in the abdomen, returned to Bennett's car, and continued to shoot as Bennett drove away.
Pittsfield police Officer Darren Cowell was the first officer to arrive at the scene. He found all three victims on the ground bleeding. Sumpter was screaming that she had been shot. She identified the person who shot her as "Lance" and told Officer Cowell that she had seen him earlier that evening at Zen's Pub. Once additional officers and medical personal arrived, the victims were transported to Berkshire Medical Center. While she was being treated at the hospital, at about 5:30 A.M., the police showed Sumpter a photographic array from which Sumpter selected a photograph of the defendant and identified him as the shooter. At trial, however, Sumpter was unable to identify the defendant and testified that she had not seen the shooter before. Saunders also identified the defendant as the shooter from the same array and, unlike Sumpter, he made an unequivocal in-court identification of the defendant.
Moore was not called as a witness and there was no evidence whether he made an identification.
1. The direct appeal. a. Request for a continuance. The defendant argues that the judge abused his discretion in denying trial counsel's request for a continuance. We disagree.
Two days before the trial was scheduled to begin, trial counsel filed a motion to continue in which he claimed a continuance was necessary because he had just learned that a defense witness, Jay Spratling, who had claimed to be a witness to the shooting and, according to counsel, was expected to testify that the defendant was not present at Dower Square, intended to invoke his Fifth Amendment privilege not to incriminate himself. In addition, counsel had recently discovered that an alibi witness, Sarah Morrell, who claimed the defendant was visiting her at her aprtment at the time of the shooting, had not signed a lease for that aprtment until several months after the shooting. Trial counsel asserted that these two developments, which he described as "severe surprises," coupled with the gravity of the charges, warranted a continuance. The motion also indicated that the defendant would waive the 180-day time limitation for trial under the Interstate Agreement on Detainers (IAD). See St. 1965, c. 892, § 1.
The record indicates that the defendant was serving a sentence in New York and was transported to Massachusetts for trial pursuant to the IAD. Under the IAD, the Commonwealth had 180 days to try the defendant from the date of his transfer from New York.
The motion was heard together with other pretrial motions on the following day. The judge was not persuaded that the unavailability of Spratling as a defense witness warranted a continuance and denied the request on that ground. Regarding the alibi witness, however, the judge stated that he wanted to give trial counsel the opportunity to investigate, although he was "certainly inclined to go forward." The judge informed counsel that if anything were to come up that persuaded him that a continuance was necessary, then "the case may go off." At that point, however, the case would proceed as scheduled.
On the next day, before the empanelment process began, the defendant renewed his motion to continue, adding as a new ground the fact that one of the victims, Saunders, who was not expected to testify because the Commonwealth could not locate him, had been found and served with a subpoena. Although Saunders had been listed as a witness "all along," both parties viewed him as a "reluctant" witness and, as a result, trial counsel believed that he would not be available to testify at trial. Counsel also argued that his preparation of the case had been hindered by the fact the case was five years old and had been "fast tracked with less than six months from arraignment to trial."
The judge responded that although everyone had worked "expeditiously" to prepare the case for trial in a timely manner, there was no basis for a continuance. The judge noted that trial counsel had six months to prepare, and in the absence of any case-specific reason for a continuance, the judge denied the motion. The judge also stated as grounds for his decision that the case was "very serious," the defendant had been returned to Massachusetts for trial, and there was the issue of reluctant witnesses who could "change their mind again."
Specifically, the judge stated, "Well, the reasons that are articulated are the reasons that we have in every case."
We cannot say that the judge's denial of the defendant's request for a continuance was an abuse of discretion. At the outset, we agree with the judge's observation that the challenges presented to trial counsel, while daunting, were not unusual. Moreover, there was no question that trial counsel, who had been appointed to represent the defendant at the defendant's arraignment six months earlier, was familiar with the case. Contrast Commonwealth v. Cavanaugh, 371 Mass. 46, 50-52 (1976). More importantly, trial counsel did not specify what, if anything, could be gained by additional time. Commonwealth v. Morse, 50 Mass. App. Ct. 582, 586-588 (2000).
Contrary to the defendant's assertion, the judge appropriately balanced the concerns implicated by a potential delay. Although a trial judge may not exercise his discretion in such a way as to impair the defendant's right to effective assistance of counsel, the judge is entitled to consider the potential prejudice of a delay to the Commonwealth. Commonwealth v. Cavanaugh, 371 Mass. at 51. Here, as the judge noted, the case was five years old and there was an issue concerning at least one reluctant witness. In sum, the denial of the continuance did not result in a "measurable detriment to the presentation of a defense." Commonwealth v. Ray, 467 Mass 115, 130 (2014). In fact, as it turned out, the alibi witness did not appear (although counsel was given extra time to produce her), and she did not testify.
As the Commonwealth notes in its brief, there were allegations that Saunders and Sumpter had been threatened or intimidated by unknown individuals over the weekend between jury empanelment and the start of trial.
b. Defense witness's claim of Fifth Amendment privilege. As we have explained, prior to the start of trial, the judge was made aware that a potential defense witness, Spratling, intended to assert his Fifth Amendment privilege against self-incrimination if called to testify. Initially, Spratling's attorney appeared before the judge and reported that Spratling did not want to testify and would assert his claim of privilege. At the judge's request, the attorney provided a detailed explanation of the basis for Spratling's claim of privilege, after which the judge inquired of trial counsel if there was "any reason that [Spratling could] be compelled to testify?" Trial counsel responded by stating that the judge should assess Spratling's claim of privilege on a "question by question basis." The judge disagreed, and found that Spratling's claim of privilege was valid on the basis of his attorney's representation. The judge acquiesced, however, to trial counsel's request that Spratling invoke his privilege on the record. Spratling, who was in custody, was brought into court and after he was given additional time to confer with his attorney, the judge asked him -- in open court -- whether he wished to exercise his Fifth Amendment privilege and not testify, to which Spratling responded, "I wish not to."
The defendant claims that the judge erred by relying on Spratling's "wishes" and the "vague and unsubstantiated conjectures" of Spratling's attorney in determining that Spratling had a valid Fifth Amendment privilege. According to the defendant, the judge should have conducted a voir dire and not permitted Spratling to make a blanket assertion of the privilege. See Commonwealth v. Martin, 423 Mass. 496, 502 (1996) ("A witness also is not entitled to make a blanket assertion of the privilege"). While it is true that our cases hold that "[t]he privilege must be asserted with respect to particular questions, and the possible incriminatory potential of each proposed question, or area which the prosecution might wish to explore, must be considered," ibid., in this case the record reflects ample support for the judge's conclusion that Spratling had a valid Fifth Amendment privilege, even without questioning Spratling directly. There is no basis for viewing Spratling's attorney's assertion that Spratling's testimony would be incriminating with skepticism. To the contrary, it appears that most, if not all, of the questions that would be asked of Spratling concerning the shooting would expose him to self-incrimination.
Spratling's attorney explained that Spratling had given only a partial statement to the police, and that if Spratling "were to testify . . . it may come out that [the] statement was not true." The attorney also stated that the statement may incriminate Spratling himself. Given the fact that it was alleged that Spratling was in the car with Bennett and the defendant both before and after the shooting, we concur with the judge's assessment that there was a "risk" of self-incrimination. In addition, Spratling's attorney expressed concern that the Commonwealth's cross-examination might elicit information which, in turn, would undermine possible defenses in Spratling's upcoming murder trial. The attorney specifically noted his concern that the cross-examination would cover possible gang involvement, an issue that was germane to the murder charge. Lastly, the attorney noted that at some point Spratling had claimed that he did not recognize the defendant, and that this claim was "possibly disingenuous" due to the fact that Spratling was living with the defendant's brother, who had been indicted as a codefendant with Spratling.
At the time of the defendant's trial, Spratling had open indictments "for a drug case," "for a slashing with a razor blade," and for murder.
We conclude that the judge had sufficient information to make an informed determination as to whether Spratling's testimony could possibly incriminate him. Moreover, while it might have been better to conduct a voir dire of Spratling, we note that the defendant does not argue that Spratling did not have a valid Fifth Amendment privilege. The judge properly concluded that Spratling was unavailable to testify. See Pixley v. Commonwealth, 453 Mass. 827, 832-833 (2009).
c. Admissibility of the photographic array. Prior to trial, the defendant filed a motion to suppress pretrial identifications by Saunders and Sumpter from a photographic array shown to them, separately, a few hours after the shooting.The defendant claimed that the photographic array was unnecessarily suggestive because he was the only person in the array with braided hair. After an evidentiary hearing, the judge read his findings of fact into the record and then denied the motion. There was no error.
The defendant's motion to suppress sought to prevent the introduction of "testimony by police or civilian witnesses concerning identifications made by witnesses who would not be subject to cross-examination." However, at the hearing, the defendant argued that the array was overly suggestive.
To begin with, the judge found that the police had followed the identification procedures approved by the Supreme Judicial Court in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-799 (2009). Next, the judge examined the array, which depicted six black males, three of whom were bald or had short hair. Three men had hair, but only one of those three (the defendant) had braids. The judge ruled that the fact that only one photograph depicted an individual with braids did not render the identification process impermissibly suggestive if only because Sumpter, who apparently had described the shooter as having braids, did not rely on the defendant's hair when she selected his photograph. In fact, she pointed out that the defendant's hair on the night of the shooting was longer than it appeared in the photograph. She also noted that the defendant had "facial hair on the side" which did not show in the photograph and stated that "he look[ed] familiar [based on] his lips and his eyes."
The testimony at the hearing indicates that Sumpter provided a description of the shooter, but none of the witnesses who testified had spoken with Sumpter about "Lance's" appearance.
The judge noted that "in the context of the entire procedure," the possible differing hair style was not a factor in the identifications, and denied the motion. See Commonwealth v. Melvin, 399 Mass. 201, 203-204 (1987) ("The judge found that the victim selected the photograph of [the defendant], not because of the [single differing characteristic in the defendant's photo], but because of his vivid memory of the intruder").
We agree with the judge that based on the totality of the circumstances, the defendant did not show by a preponderance of the evidence that the identification procedure employed in this case was unnecessarily suggestive, and therefore the motion to suppress was properly denied.
2. Motion for a new trial. While his appeal was pending, the defendant filed a motion for a new trial alleging ineffective assistance of counsel due to trial counsel's failure to sanitize the photographs included within the photographic array from which Saunders and Sumpter identified the defendant. The judge applied the two-prong test from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and concluded that trial counsel was not ineffective. We agree.
As the judge explained in his memorandum of decision and order denying the new trial motion, the photographic array was prepared by the Berkshire County sheriff's department. The words "Berkshire Sheriff's Office" appeared at the top of the array. On the second page of the array, the individuals depicted in the photographs were identified by name, inmate identification number ("Inmate ID"), booking number, and the date the photograph was taken. These two pages were introduced in evidence by the defendant. Trial counsel submitted an affidavit in support of the new trial motion acknowledging that he should have sanitized the photographic array and that his failure to do so was not a strategic decision.
The same two pages were included in a separate exhibit introduced by the Commonwealth.
In reaching his conclusion that the defendant was not deprived of the effective assistance of counsel, the judge ruled that the array should have been sanitized, and the failure to do so was not a reasonable strategic decision, but that the defendant had not been prejudiced because the result of the trial would not have been different.
We agree with the judge's analysis. As the judge noted with respect to the extraneous information, "there was no indication that the defendant was convicted of any particular crimes, the nature of any convictions or the length of any sentence." The judge further observed that it was clear from the photographs themselves that the persons depicted were in custody. The crux of the defendant's strategy was to demonstrate that the police rushed to judgment when they charged the defendant on the basis of a flawed identification procedure. This strategy was not affected by counsel's failure to sanitize the array and, therefore, the failure to sanitize the array did not prejudice the defendant by depriving him of an otherwise substantial ground of defense. Commonwealth v. Saferian, 366 Mass. at 96.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Vuono, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 5, 2014.