Opinion
13-P-1443
12-12-2014
COMMONWEALTH v. JOHN VARGAS.
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
A jury convicted the defendant of discharging a firearm within 500 feet of a building in violation of G. L. c. 269, § 12E, carrying a firearm without a license in violation of G. L. c. 269, § 10(a), and carrying a loaded firearm without a license in violation of G. L. c. 269, § 10(n). Raising the issue for the first time on appeal, the defendant argues his trial counsel was ineffective for failing to impeach the Commonwealth's sole witness, a sergeant in the Lawrence police department, with statements in his police report. We affirm.
"[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). As a narrow exception to this rule, "claims[s] of ineffective assistance may be resolved on direct appeal" when "the factual basis of the claim appears indisputably on the trial record." Ibid., quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Because trial records often do not reveal the bases for the strategies employed by defense counsel, the proper mechanism for raising an ineffective assistance claim is through a motion for a new trial. See Commonwealth v. Stone, 70 Mass. App. Ct. 800, 810 (2007). A new trial motion "provides the opportunity for an evidentiary hearing and findings related to the trial attorney's performance[,]" instead of speculation about defense counsel's rationale for her actions. Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 552 (2006). Accordingly, we "will only consider claims of ineffective assistance of counsel raised on direct appeal when 'an attorney's tactical decision . . . was manifestly unreasonable when made.'" Commonwealth v. Stone, supra at 809, quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998).
As an initial matter, we note that it is not clear that the police report was part of the trial record. Leaving that infirmity unresolved, the defendant's argument nonetheless fails because trial counsel's strategy was not manifestly unreasonable. Although, as the defendant argues, the police report shows that the sergeant initially presented photos of more than one potential suspect to the civilian eyewitness to identify, that information would not necessarily have helped the defense. As a whole, the police report demonstrates that the sergeant did not leap to conclusions, but rather began with a larger pool of potential suspects that he then narrowed down to the defendant via thorough investigation, with the help of the civilian eyewitness. As a result, trial counsel could have reasonably concluded that, instead of introducing doubt into the jury's mind as to the identity of the shooter, the police report would have instead underscored the thoroughness of the sergeant's investigation.
The sergeant was also an eyewitness to the crime.
"[A]bsent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion." Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), quoting from Commonwealth v. Fisher, 433 Mass. 340 , 357 (2001). Here, trial counsel effectively cross-examined the sergeant about his ability to see the shooter and his decision not to have the gun's magazine dusted for fingerprints. See Commonwealth v. Johnston, 467 Mass. 674, 696-697 (2014).
The defendant's reliance on Commonwealth v. O'Neil, 51 Mass. App. Ct. 170 (2001), is misplaced. In O'Neil, trial counsel neglected to impeach the witness with his written agreement to testify against the defendant in exchange for a sentence of probation. Id. at 173-183. There was no discernable tactical or strategic reason for failing to employ this "invaluable" impeachment evidence. Id. at 178, 180.
Judgments affirmed.
By the Court (Green, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 12, 2014.