Opinion
21-P-951
04-27-2022
COMMONWEALTH v. Felix L. RIVERA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of home invasion, possession of a firearm without a license, assault and battery by means of a dangerous weapon, assault and battery to collect a loan, assault by means of a dangerous weapon, and assault and battery by discharge of a firearm. Subsequently, the trial judge denied the defendant's motion for a new trial, which was based on a claim of ineffective assistance. The defendant's direct appeal and his appeal of the denial of his motion for new trial were consolidated.
The jury acquitted the defendant of armed assault with intent to murder.
As the Commonwealth appropriately acknowledges, assault by means of a dangerous weapon is a lesser included offense of assault and battery by means of a dangerous weapon. See Commonwealth v. Appleby, 380 Mass. 296, 306-308 (1980). It is also uncontested that those two offenses here were based on the same conduct. The conviction of assault by means of a dangerous weapon is therefore duplicative and must be vacated (together with its accompanying sentence). See Commonwealth v. Brule, 98 Mass. App. Ct. 89, 94 (2020). Finding insufficient merit in the defendant's other arguments, we affirm the remaining convictions.
Assault by means of a dangerous weapon is also a lesser included offense of assault and battery by discharge of a firearm. See Commonwealth v. Brule, 98 Mass. App. Ct. 89, 94 (2020).
1. Length of the gun's barrel. To establish two of the defendant's convictions, the Commonwealth had to prove that the gun that the defendant possessed or used met the statutory criteria of a "firearm." See Commonwealth v. Nieves, 43 Mass. App. Ct. 1, 2 (1997). This included proof that the barrel of the gun was less than sixteen inches in length. See G. L. c. 140, § 121. "The Commonwealth's burden to prove that a weapon is a ‘firearm’ in the statutory sense is not a heavy one." Commonwealth v. Humphries, 465 Mass. 762, 774 (2013), quoting Commonwealth v. Barbosa, 461 Mass. 431, 435 (2012). All that is required is "some competent evidence from which the jury reasonably can draw inferences that the weapon will fire" and is "under a certain length" (citation omitted). Nieves, supra. Circumstantial proof of a gun's barrel length can suffice. See Commonwealth v. Naylor, 73 Mass. App. Ct. 518, 525 (2009).
The defendant also argues that the Commonwealth had to prove that the gun here was a firearm to sustain the conviction for assault and battery by means of a dangerous weapon. That is not correct. Although the indictment referenced the specific dangerous weapon here as a firearm, this did not bind the Commonwealth to prove that it was a firearm. See Commonwealth v. Salone, 26 Mass. App. Ct. 926, 930(1988) ("language in the indictment specifying the particular [dangerous] weapon used [was] superfluous"). In any event, there was sufficient proof that the gun was a firearm.
We agree with the Commonwealth that there was sufficient circumstantial proof here that the barrel of the gun was less than sixteen inches long. According to the trial testimony, the victim had borrowed $2,000 from the defendant and had paid only $500 on the loan. On the night of February 26, 2018, the defendant went to the victim's apartment with two other men to rob the victim. After the victim opened the door, the defendant unzipped his jacket and pulled out a gun. The victim pushed the defendant and the gun discharged, shooting the victim in the groin. After the victim fell to the ground, the defendant pressed the gun against the victim's head. The evidence that the gun was small enough to fit inside the defendant's jacket, together with evidence that it was brought to be used in close quarters inside an apartment building, was sufficient to allow the jury to infer that the barrel of the gun was less than sixteen inches. See Commonwealth v. Sperrazza, 372 Mass. 667, 670 (1977) ; Commonwealth v. Manning, 44 Mass. App. Ct. 695, 707 (1998).
All three men were masked. Prior to trial, the victim on more than one occasion told police that the person with the gun was the defendant. At trial, the victim recanted that identification, but his prior statements were admitted at trial for their substance.
2. Ineffective assistance. In his motion for new trial, the defendant claimed his trial counsel was ineffective in two respects: (1) by failing to investigate an alibi defense, and (2) by failing to inform the defendant of his right to testify in his own defense. We address these claims in turn.
The defendant filed two one-page affidavits in support of his motion for new trial, one from him and one from his trial counsel. In his own affidavit, the defendant claimed that "[o]n February 26, 2018, the night of the incident, [he] was at [his] girlfriend's apartment." This was his only post-trial effort to substantiate that he had an alibi. That statement, even if true, would not constitute an alibi, because it does not state when during the evening he was at his girlfriend's apartment. In addition, as the Commonwealth highlights, the defendant did not supply an affidavit from his alleged girlfriend, or even provide any identifying information about her. The defendant's showing that he in fact had an alibi was so bare, that the judge plainly acted within his discretion by rejecting the defendant's claim that his counsel was ineffective for not pursuing such a defense, and by rejecting such a claim without an evidentiary hearing. See Commonwealth v. Denis, 442 Mass. 617, 633-634 (2004) (unsubstantiated self-serving affidavit not sufficient to raise substantial issue warranting evidentiary hearing). We reach this conclusion even leaving aside the inherent implausibility that the defendant would not have volunteered his alibi to his trial counsel if indeed the defendant had one.
The defendant's affidavit does go on to state that had he testified at trial, he would have "told the jury that [he] was at his girlfriend's place at the time of offense," but he does not actually aver that such testimony would have been truthful.
The defendant seeks to rely on Commonwealth v. Diaz Perez, 484 Mass. 69, 74 (2020). That case is readily distinguishable. There, the defendant's first trial, at which an alibi witness testified, had ended in a hung jury. Id. at 69. Following a retrial at which his counsel did not call the alibi witness, the defendant was convicted. Id. at 69-70. Thus, the existence and potential strength of the alibi defense that trial counsel failed to pursue had been demonstrated.
We turn finally to the defendant's claim that his counsel was ineffective for failing to inform him that he had a right to testify in his own defense. Again, the defendant has failed to substantiate that claim. See Commonwealth v. Kelly, 57 Mass. App. Ct. 201, 209 (2003), quoting State v. Thomas, 128 Wash.2d 553, 561 (1996) ("defendant must ... produce more than a bare assertion that the right [to testify or not] was violated; [he] must present substantial, factual evidence in order to merit [relief]"). The defendant's own affidavit makes no claim that he failed to understand that he could testify in his own defense, stating only that "[i]f [trial counsel] had talked to [him] about [his] right to testify, [he] would have testified." His trial counsel's affidavit meanwhile was -- in the judge's apt description -- "noncommittal as to what was discussed with the defendant."
The Commonwealth points out that while the defendant has framed the issue as one of ineffective assistance, he relies in part on cases that speak to whether a defendant's right to testify was knowingly and intelligently waived. The defendant's argument fails under either rubric.
On one hand, counsel averred that he did "not recall if [he] ever spoke to [the defendant] about his right to testify on his own behalf," while adding that "[i]f [he] mentioned it to [the defendant], it would have only been in passing." Then, in seeming contradiction of his stated lack of memory, trial counsel averred that he "did not have a conversation with [the defendant] about his right to testify on his own behalf."
Moreover, as the judge pointed out, the defendant's right not to testify was openly discussed at multiple points before and during the trial. See Commonwealth v. Smith, 456 Mass. 476, 481 (2010) (defendant's presence in open court during discussion of defendant's right not to testify is relevant in determining if defendant had knowledge of right to testify). According to the judge, who presided at the trial, "[t]hat the defendant ‘could’ testify at trial was patently obvious." See Commonwealth v. Wallis, 440 Mass. 589, 596 (2003) (trial judge may use his "knowledge and evaluation of [trial proceedings] in determining whether to decide the motion for a new trial without an evidentiary hearing"). We conclude that the judge did not abuse his discretion in denying the defendant's motion for new trial without an evidentiary hearing.
The judge observed that the "defendant was attentive and engaged throughout the trial."
Conclusion. The judgment on the indictment charging assault by means of a dangerous weapon is reversed, the verdict on that indictment is set aside, and the indictment is dismissed. The remaining judgments of conviction and the order denying the defendant's motion for new trial are affirmed.
So ordered.
Reversed in part; affirmed in part