Opinion
20-P-662
02-11-2022
COMMONWEALTH v. Matthew THOMAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted of armed assault with intent to rob and assault and battery by means of a dangerous weapon, the defendant appeals from his convictions and from the denial of his motion for a new trial. He argues that trial counsel was ineffective for (1) not relitigating the motion to suppress at trial; (2) not impeaching the victim with his prior testimony; (3) not retaining an expert witness to testify about identification; (4) not preparing the defendant to testify at trial; and (5) not requesting that the judge instruct the jury on the inadequacy of the police investigation under Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). We affirm.
Background. The defendant and another man were both indicted for crimes arising from the beating and attempted robbery at gunpoint of the victim. Both defendants moved to suppress evidence and identifications. After a four-day evidentiary hearing, the judge who later presided at this defendant's trial denied the motions. Both defendants were scheduled to go to trial before a different judge, but this defendant did not appear for trial. The codefendant went to trial and was acquitted.
At this defendant's trial, the jury heard evidence that on November 3, 2012, after drinking at a friend's house and a bar, the victim was walking to a train station when two men began following him. The men wore hoodies, spoke Spanish, and were pushing a baby carriage. They sprinted up to the victim, grabbed at his pockets, and shouted, "Give me your money." The victim ran, but the men caught up to him. One of them, the defendant, struck the victim with a black handgun. As the victim and defendant wrestled, the gun discharged near the victim's head.
The victim ran to the train station and telephoned 911. To a responding police officer, he described his assailants as Hispanic and wearing dark hoodies, and said they had a baby carriage and a gun. Near the train station less than a minute after that information was broadcast, officers saw the defendant and his codefendant, who fit that description. In the defendant's pocket was a BB gun. In a subsequent showup procedure, the victim identified the defendant and the codefendant as his attackers, saying he was "one-hundred percent" sure, and the defendant was the one who had wielded the BB gun.
After the jury convicted the defendant, he moved for a new trial, claiming that his trial counsel was ineffective. He supported his motion with his own affidavit, but did not proffer one from trial counsel. The trial judge denied the motion without an evidentiary hearing.
Discussion. The defendant argues that his convictions should be set aside, or in the alternative he should be granted a new trial because his trial lawyer was ineffective. We assess trial counsel's performance under the familiar Saferian standard: whether it "f[ell] measurably below that which might be expected from an ordinary fallible lawyer," and "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because the judge who ruled on the motion for new trial was also the trial judge, we give "special deference" to her views of trial counsel's performance. Commonwealth v. Barnett, 482 Mass. 632, 638 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See Commonwealth v. Sin, 100 Mass. App. Ct. 172, 177 (2021). Strategic decisions by counsel are not ineffective assistance unless they were "manifestly unreasonable when made" (quotation omitted). Sin, supra at 178.
A judge may decide a motion for a new trial without an evidentiary hearing "if no substantial issue is raised by the motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011). Rule 30 (c) (3) "encourages the denial of a motion for a new trial on the papers, without hearing, where no substantial issue is raised." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). " ‘Although the motions and supporting materials filed by a defendant need not prove the issue raised therein, they must at least contain sufficient credible information to cast doubt on the issue’ in order to create a substantial issue." Commonwealth v. Barry, 481 Mass. 388, 401 (2019), quoting Commonwealth v. Denis, 442 Mass. 617, 629 (2004).
Failure to relitigate motion to suppress. The defendant argues that trial counsel was ineffective for not relitigating the motion to suppress before trial. He maintains that the judge's factual findings in her memorandum and order denying the motion to suppress were contradicted by the victim's testimony at the codefendant's trial, and recites in detail in his brief the inconsistencies he has detected.
For example, from evidence at the suppression hearing, the judge found that the victim described the attackers as wearing "hoodies or jackets," but at the codefendant's trial the victim described them only as wearing "hoodies." From evidence at the suppression hearing, the judge found that the victim had described the attackers to police as "of average height and weight," but on cross-examination at the codefendant's trial, the victim (who was six feet, two inches tall and 270 pounds) agreed that they were "little guys, short and thin."
The defendant has not met his burden to show that his trial lawyer was ineffective. To begin with, contrary to his claim that trial counsel "did not challenge" the judge's prior ruling on suppression, just before trial began counsel stated, "I renew the motion to suppress arguments and the objections," and the judge noted the objection, ruling to permit the victim to identify the defendant at trial. In denying the motion for new trial, the judge concluded that trial counsel's performance did not fall below the standard of an ordinary, fallible lawyer, because any inconsistencies between the evidence at the suppression hearing and that at the codefendant's trial were "relatively minor and not material to the legal issues." She further ruled that because any inconsistencies between the victim's testimony at the suppression hearing and at the codefendant's trial were "more semantic than substantial," any claim that the defendant was deprived of a substantial ground of defense was "hypothetical."
Because the defendant has not supplied this court with a copy of his motion for new trial and supporting memorandum, we cannot ascertain whether he drew to the judge's attention the same inconsistencies he complains of here. It was his burden, as appellant, to include in the record appendix "any document ... filed in the case relating to an issue ... to be argued on appeal." Mass. R. A. P. 18 (a) (1) (A) (v) (b), as appearing in 481 Mass. 1637 (2019).
The defendant has not met his burden to show that he would have prevailed on his renewed suppression motion if his trial counsel had drawn to the judge's attention the alleged inconsistencies to which he points here. See Commonwealth v. McWilliams, 473 Mass. 606, 615-620 (2016) (trial counsel not ineffective because motion to suppress, if filed, would not have succeeded). See also Commonwealth v. Comita, 441 Mass. 86, 92-93 (2004). Where the same judge ruled on the suppression motion, presided at trial, and denied the motion for new trial by concluding that the inconsistencies to which the defendant points would not have swayed her ruling on the suppression motion, we defer to her view of the evidence. See Barnett, 482 Mass. at 638 ; Sin, 100 Mass. App. Ct. at 177.
Failure to impeach victim with prior testimony. Next, the defendant argues that trial counsel was ineffective for failing to impeach the victim with the transcript of his testimony at the codefendant's trial.
In ruling on the motion for new trial, the judge found that trial counsel "doggedly cross-examined" the victim, and was "strategic" in how she did so. Review of the transcript shows that trial counsel focused her cross-examination on the victim's intoxication and inconsistencies in his many statements about the timing and location of the attack and his descriptions of the assailants. Notwithstanding the defendant's present claim that the codefendant's trial transcript was a "roadmap" to acquittal, the defendant had a bumpier ride than his codefendant did: the victim had more opportunity to view the defendant, who pistol-whipped and wrestled with him while the codefendant stood a few yards away with the baby carriage.
Before trial, counsel commented that she intended to cross-examine the victim about his inconsistent statements but would be careful not to "open the door" to evidence that the defendant's trial had been delayed because he had failed to appear for the trial at which his codefendant was acquitted.
"Failure to impeach a witness does not, standing alone, amount to ineffective assistance." Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). Because impeaching a witness is usually a strategic decision, "it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion" (citation omitted). Commonwealth v. Smith, 456 Mass. 476, 485 (2010) ; Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). The defendant has not met his burden to show that the judge, who saw trial counsel's cross-examination of the victim, abused her discretion in ruling that it met the Saferian standard.
Failure to retain identification expert. The defendant argues that trial counsel was ineffective for not having retained an expert to testify about the reliability of eyewitness identification. In support of his motion for new trial, the defendant submitted no affidavit explaining what such an expert would have said.
A claim of ineffective assistance of counsel for failure to call an expert witness "is generally doomed" if not supported by an affidavit proffering what the expert's testimony would have been. Commonwealth v. Moore, 480 Mass. 799, 817 (2018), quoting Commonwealth v. Alicea, 464 Mass. 837, 850 (2013). Absent such an affidavit, we agree with the judge's conclusion that the defendant did not meet his burden to show that trial counsel's failure to call an identification expert amounted to ineffective assistance of counsel. Whether to call an expert witness "fits squarely within the realm of strategic or tactical decisions." Commonwealth v. Ayala, 481 Mass. 46, 63 (2018) (defense counsel not ineffective who vigorously challenged witness's identification of defendant but did not call identification expert). See Commonwealth v. Jacobs, 488 Mass. 597, 606 (2021) (expert testimony of crime scene reconstructionist would not have contradicted percipient witness's testimony).
Moreover, as the judge noted in denying the motion for new trial, she instructed the jury on identification. Her instruction comported with the Supreme Judicial Court's Model Jury Instructions on Eyewitness Identification, 473 Mass. 1054-1058 (2015), and informed the jurors of factors to consider in determining the reliability of an identification, including the length of time the witness observed the perpetrator, the distance between them, the witness's intoxication, the presence of a weapon, any difference in racial backgrounds, and the circumstances of the showup. Where the judge's instructions explained those factors to the jury, the defendant has not shown that calling an identification expert, the substance of whose testimony he does not disclose, would have materially aided the defense. Cf. Commonwealth v. Henderson, 486 Mass. 296, 305-306 & n.8 (2020) (motion judge properly ruled that expert identification testimony proffered in affidavit would not have accomplished anything material for defense; at trial, counsel challenged identification, but judge did not give enhanced identification instruction).
Trial counsel had focused on those same factors during cross-examination of the victim and in her closing argument.
Failure to prepare defendant to testify. The defendant also argues that trial counsel was ineffective for not preparing him to testify at trial.
During trial, the judge conducted a colloquy with the defendant about whether he wanted to testify. Under oath, the defendant said in response to the judge's questions that trial counsel had explained to him the advantages and disadvantages of testifying, he made the decision on his own not to testify because he heeded her advice, and nobody pressured him into silence. In contrast, in an affidavit submitted with his motion for new trial, the defendant averred that trial counsel "never once discussed whether I wou[l]d testify or not and did not prepare me to do so." The judge did not credit the defendant's affidavit, finding that it was "self-serving" and "after-the-fact." We defer to her assessment of credibility. See Commonwealth v. Garuti, 454 Mass. 48, 60-61 (2009) (judge discredited as self-serving defendant's affidavit averring that counsel did not consult, prepare, or explain his right to testify). See also Commonwealth v. Marrero, 459 Mass. 235, 241 (2011) (same).
Failure to request Bowden instruction. Finally, the defendant argues that trial counsel was ineffective for not requesting a jury instruction on the inadequacy of the police investigation, see Bowden, 379 Mass. at 485-486.
At the charge conference, no reference was made to any Bowden instruction. In closing, defense counsel argued that by not following proper procedures, the police "[i]rreparably contaminated" the victim's identification of his assailants. In ruling on the motion for new trial, the judge found that trial counsel "argued effectively" on that point, and that "all of the evidence relating to the police investigation [was] admitted, as well as evidence of what steps were not taken in the investigation." See Commonwealth v. Williams, 439 Mass. 678, 687 (2003) (Bowden does not require jury instruction on inadequacy of police investigation, but rather holds that judge may not remove issue from jury's consideration).
The transcript shows that the judge reviewed and ruled on trial counsel's written request for jury instructions, but the defendant has not included that document in the record appendix. See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). Thus we cannot ascertain whether trial counsel did request a Bowden instruction. We assume that she did not.
Because a Bowden instruction is never required and is always within a judge's discretion, trial counsel's refraining from asking for one would not be ineffective. See Commonwealth v. Alvarez, 480 Mass. 299, 316 (2018) ; Commonwealth v. Hardy, 431 Mass. 387, 395 (2000). See also Mass. G. Evid. § 1107(b) (2021). Thus the defendant has not shown that, if trial counsel did refrain from requesting a Bowden instruction, that deprived him of an otherwise available, substantial ground of defense. See Sin, 100 Mass. App. Ct. at 183-184.
Judgments affirmed.
Order denying motion for new trial affirmed.