Opinion
16-P-266
03-28-2017
COMMONWEALTH v. Waco O. TAYLOR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for a new trial. We affirm.
Background . In 1998, the defendant was convicted of six counts of unarmed burglary, three counts of indecent assault and battery, five counts of breaking and entering in the daytime with the intent to commit a felony, two counts of assault and battery, and one count of assault with intent to commit rape. His defense at trial was misidentification, and trial counsel moved to suppress several pretrial and in-court identifications of the defendant as the perpetrator. Counsel "sought and received funds to retain the services of [two] eyewitness identification experts," whom she decided not to call at trial because "both experts told [her] that they could not offer an opinion helpful to" the defendant. Denial of the motion to suppress, and the defendant's convictions, were affirmed on direct appeal by a different panel of this court, in an unpublished memorandum and order issued pursuant to our rule 1:28. Commonwealth v. Taylor , 53 Mass. App. Ct. 1109 (2001).
In 2015, the defendant filed a motion for a new trial supported by affidavits of trial and appellate counsel, and an affidavit and report of a psychologist. The defendant argued that he was denied the effective assistance of counsel when trial counsel failed to "[s]ecure the opinion of an expert on eyewitness identification" and request an instruction on cross-racial identifications. In a thoughtful and thorough memorandum of decision and order, the trial judge denied the defendant a new trial and an evidentiary hearing.
Discussion . A new trial may be granted whenever "it appears that justice may not have been done," Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), a question that "is left largely to the discretion of the judge who presided over the case." Commonwealth v. Pope , 392 Mass. 493, 497 (1984). A trial judge's "disposition of the motion will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error." Commonwealth v. Russin , 420 Mass. 309, 318 (1995). We apply the familiar Saferian standard "[w]here a new trial motion is based on ineffective assistance of counsel." Commonwealth v. Watson , 455 Mass. 246, 256 (2009). See Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
We see no reason to disturb the trial judge's conclusion that "neither the record [in this case] nor the representation rendered by trial counsel, which [the judge had] witnessed while presiding over [the defendant]'s trial, support the claim of ineffective assistance." The judge alone could "determine the weight and import of affidavits submitted," Commonwealth v. Thomas , 399 Mass. 165, 167 (1987). She credited trial counsel's affidavit "in its entirety," and we do not think it a "manifestly unreasonable" decision not to call experts whose opinions would not aid the defense. Watson , supra . "To the contrary, counsel's actions were appropriate and consistent with a reasonable strategy." Id . at 257. Where the psychologist's opinions would not have been "admissible as of right" at trial, ibid ., and where the trial judge found "nothing in the record to suggest that [she] would have found such expert testimony admissible," the defendant has not shown "that better work might have accomplished something material for the defense." Id . at 256. See Commonwealth v. Satterfield , 373 Mass. 109, 115 (1977).
The judge found no merit to the defendant's claim that trial counsel was ineffective for failing to request an instruction on cross-racial identifications, indicating that any request would have been futile in light of her rulings on the motion to suppress. We see no abuse of discretion. The statements included in the record do not indicate the races of the witnesses, and at least one of the witnesses knew the defendant. The defendant "was not entitled to such an instruction," Commonwealth v. Bly , 448 Mass. 473, 496 (2007), and, again, he has not shown "that better work might have accomplished something material for the defense." Satterfield , supra .
Order denying motion for new trial affirmed .