Opinion
13-P-885
04-06-2017
COMMONWEALTH v. Wally Jacques SIMON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of two counts of carrying a firearm without a license, G. L. c. 269, § 10(a ), one count of unlawful possession of ammunition, G. L. c. 269, § 10(h ), two counts of the unlicensed sale of a firearm, G. L. c. 140, § 128, and one count of unlawful possession of a firearm with a defaced serial number in the course of a felony, G. L. c. 269, § 11B. In this consolidated appeal, the defendant argues that his motion for new trial raised a substantial issue that he had been denied effective assistance of counsel, and thus it was error to deny that motion without an evidentiary hearing. In particular, the defendant argues that counsel was ineffective by (1) failing to move to suppress evidence that was obtained by telephone intercepts to which he did not consent, and (2) failing to object to, or move to strike, testimony regarding uncharged conduct. Because we conclude the defendant did not raise a substantial issue, the judge did not abuse his discretion in denying the motion for new trial without an evidentiary hearing. See Commonwealth v. Denis, 442 Mass. 617, 628 (2004) ( "The decision whether to hold an evidentiary hearing is committed to the discretion of the motion judge, and we review that decision for an abuse of discretion"); Commonwealth v. McWilliams, 473 Mass. 606, 622 (2016) ("If no ‘substantial issue’ is raised by the motion or the affidavits submitted, the judge has the discretion to decide postconviction motions without an evidentiary hearing").
Although the defendant appeals from both the judgments and the denial of his motion for new trial, the only argument he raises on appeal pertains to the motion for new trial.
To determine whether the defendant raised a substantial issue regarding his counsel's failure to file a motion to suppress, we look to see whether such a motion was likely to succeed. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004) ; Commonwealth v. Dargon, 457 Mass. 387, 404 (2010). Although it is true, as the defendant points out, that under our State law, "[t]he secret transmission or recording of oral communications without the consent of all parties is generally proscribed," Commonwealth v. Blood, 400 Mass. 61, 66 (1987), only one party's consent is required if the interception is conducted by Federal officers "acting pursuant to authority of [Federal] laws ... and within the scope of their authority." G. L. c. 272, § 99(D ) (1)(c ), as appearing in St. 1968, c. 738, § 1. Commonwealth v. Gonzalez, 426 Mass. 313, 315 (1997). Thus, the fact that the defendant did not consent to the recordings at issue here would not require that they be suppressed unless the defendant could demonstrate that the recordings did not fall within the Federal exception. The exception does not extend to "combined enterprises" between State and Federal officials. See Commonwealth v. Jarabek, 384 Mass. 293, 297 (1981) ; Gonzalez, supra at 316.
We note that, although defense counsel did not file a motion to suppress, she filed a motion in limine to exclude the recordings and in that context raised the issue of the defendant's lack of consent and whether the recordings fell within the Federal exception.
Here, a State police trooper introduced the informant to an agent of the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The ATF agent then began to work with the informant in connection with investigations into a number of individuals, including the defendant. The informant became, through a formal process, an informant of the ATF. He was interviewed by the ATF agent, paperwork was completed, he was fingerprinted, his photograph was taken, and his participation as an ATF informant was approved up the chain of command. He signed an agreement stating he was cooperating with the ATF, and he was paid living and travel expenses. The equipment used to record the informant's conversations with the defendant was provided by Federal agents, who attached it to the informant. The controlled buys were planned and overseen by the Federal agents, who prepared anticipatory memoranda and postbuy reports. Each plan was approved by the ATF. ATF agents prepared the informant for each controlled purchase, and provided the money to be used in the purchases. They searched the informant after each purchase and took possession of the guns. They monitored the transmissions as they were occurring; they also physically surveilled the transactions. Given these circumstances, although it is true that State officers also provided backup during the controlled purchases, the defendant did not meet his burden of showing that the recordings were made in the course of a combined State and Federal enterprise. Mere assistance by local law enforcement does not automatically transform an investigation into a combined enterprise so as to subject the Federal agents to the more strict State standard. See Gonzalez, supra at 317.
We also conclude that the defendant did not raise a substantial issue regarding his counsel's failure to object to, or move to strike, certain testimony referring to uncharged drug and firearm sales activity. Even assuming that counsel's performance fell "below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), a point we do not decide, the defendant has failed to show that he was deprived of a substantial ground of defense. The testimony was brief and cursory, it was not crucial to the charged offenses, the Commonwealth's evidence of two controlled purchases was overwhelming, and the prosecutor made no use of the testimony in closing.
Specifically, the defendant takes issue with three pieces of testimony. The first occurred during the direct examination of an ATF agent who stated "yes" in response to the prosecutor's question whether "there bec[a]me a target named Wally Jacques Simon," and who elaborated that "Mr. Simon's name came up as an individual that, uh, may be involved" with an investigation "for potential firearms and narcotics violations." The defendant's second piece of challenged testimony occurred when that same agent stated that "the informant had received information that Mr. Simon was in possession of a firearm and he wanted to sell." Lastly, the defendant contests admissibility of the informant's testimony that the informant had purchased narcotics and firearms from the defendant.
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For all of these reasons, the judge did not abuse his discretion in denying the defendant's motion for new trial without an evidentiary hearing.
Judgments affirmed.
Order denying motion for new trial without an evidentiary hearing affirmed.