Opinion
10-P-1754
04-02-2012
COMMONWEALTH v. NICHOLAS PROULX.
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
On appeal from convictions of unlawful carrying of a firearm and unlawful possession of marijuana, the defendant contends that (1) the motion judge erred in denying his motion for reconsideration of a motion to suppress evidence and (2) his trial attorney rendered ineffective assistance of counsel in failing to impeach witnesses with a turret tape. We affirm.
1. Background. On November 8, 2007, shortly after the defendant's arrest, a discovery order issued that directed the Commonwealth to supply the defendant with 'a copy of the police 911 tape and other recordings (Turret Tapes) of police communication . . . relating to the incident . . . .' A compact disc of the relevant tape was prepared by March 20, 2008, but, for reasons not explained in the record, was not supplied to the defendant prior to an evidentiary hearing on the defendant's motion to suppress evidence on August 19, 2008. On September 17, 2008, the motion judge denied the defendant's motion, making detailed factual findings.
The turret tape contained a recording of ongoing communications among a 'Checkered Cab' driver, a cab company dispatcher/manager, a police department dispatcher, and an unnamed police officer or officers in the field.
The defendant does not argue, nor does the record suggest, that the Commonwealth's failure to provide the tape was intentional, or that defense counsel called the failure to the attention of the Commonwealth or the motion judge prior to the suppression hearing.
The transcript of the suppression hearing is not part of the record on appeal. The defendant properly does not argue that the motion judge's findings, which rely upon and explicitly credit the testimony of Officers Martin and LaPlante, are erroneous. Rather, he argues that had the Commonwealth provided the tape in advance of the evidentiary hearing he would have been able to impeach their testimony, and that the judge's essential factual findings and ruling on the motion would have been different.
Shortly before the defendant's scheduled trial on September 9, 2009, a prosecutor who was new to the case inquired whether defense counsel had received a copy of the turret tape, learned that he had not, and supplied it to him. The defendant received a continuance of trial, and on December 17, 2009, moved to dismiss the complaint for failure to provide discovery. A judge heard and denied that motion, ruling that the defendant had remedies short of dismissal, including a request to rehear his motion to suppress evidence based upon newly discovered evidence (the turret tape).
Nothing in the record indicates that defense counsel previously moved to compel the Commonwealth to provide the ordered discovery.
The defendant does not appeal from the denial of his motion to dismiss. Indeed, he concedes that the judge did not err because judges have 'wide discretion in handling discovery misconduct.'
2. The motion to reconsider. The defendant moved for reconsideration of his motion to suppress. He asserted that the outcome of the motion would have been different had the tape been provided timely because the tape 'indicates that there was not reliable or reasonable suspicion or probable cause that the defendant was involved in criminal activity on the night in question.'
On April 2, 2010, the judge held a hearing on the defendant's motion. The judge heard arguments from counsel, reviewed a transcript of the earlier evidentiary hearing and his factual findings, and listened to the turret tape. In doing so, the judge focused specifically on defense counsel's contention that the information in the turret tape undermined the judge's factual findings and determination that reasonable suspicion existed to stop and frisk the defendant. After due consideration, the judge concluded that the overlapping conversations memorialized in the tape did not alter his credibility assessments or change the substance of the factual findings essential to his determination that the stop and frisk of the defendant was lawful.
Defense counsel did not request the judge to rehear the motion in its entirety. Rather, he suggested that information in the turret tape cast doubt on the judge's prior factual findings and required allowance of the defendant's motion to suppress.
Defense counsel directed the judge's attention to various alleged inconsistencies between the tape and the officers' testimony regarding the individuals to whom reasonable suspicion extended.
We discern no error. To the extent that the description of unfolding events contained in the tape was inconsistent with the description of the scene given by Officers Martin and LaPlante at the suppression hearing, the judge could permissibly conclude that the inconsistencies were minor and attributable in no small part to the rapidly unfolding scene and the chaotic nature of simultaneous ongoing conversations among people at the scene (the cab driver and police) and intermediaries at the cab company and the police station. '[T]he determination of the weight and credibility of the testimony is the function and responsibility of the [motion] judge who saw the witnesses, and not this court.' Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), quoting from Commonwealth v. Moon, 380 Mass. 751, 756 (1980). From all that appears on this record, the stop of the defendant sufficed to meet the requisite indicia of reliability for a Terry stop because it was based upon information provided by named informants (a cab driver and cab company dispatcher) that individuals involved in an assault on a cab driver the previous night were among a group of about seven persons in the location of the Eagles Club. See Commonwealth v. Rodriguez, 70 Mass. App. Ct. 904, 904 (2007). Accordingly, officer Larkin, who was already on the scene working a detail at the Eagles Club, as well as Officers Martin and LaPlante, possessed a sufficient basis to stop the two individuals (including the defendant) who were attempting to walk away from the group. See Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 551-553 (2002).
Indeed, because the defendant failed to include a transcript of the initial suppression hearing in the record appendix, we are hard pressed to conclude how the judge might have erred in denying the defendant's motion for reconsideration. 'In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
Defense counsel acknowledged that the defendant was part of the group of seven persons walking by the Eagles Club.
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3. Ineffective assistance of counsel. Relying solely on the trial transcript, the defendant claims that trial counsel was ineffective in failing to introduce the turret tape to impeach the officers' testimony. '[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal.' Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). As noted in the Commonwealth's brief at page 20, the record is insufficient to resolve the defendant's claim because the factual basis for that claim does not appear indubitably upon the record. See Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Accordingly, we decline to entertain it.
Judgments affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),