Opinion
13-P-180
03-25-2015
COMMONWEALTH v. ELAINE M. BELL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In a consolidated appeal from her conviction of assault and battery and the denial of her motion for a new trial, the defendant advances several claims of ineffective assistance of counsel. We evaluate such claims under the familiar Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Because the defendant has not demonstrated (1) that counsel's representation fell "measurably below that which might be expected from an ordinary fallible lawyer," ibid., or (2) "that better work might have accomplished something material for the defense," Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977), she has not shown that trial counsel's assistance was ineffective, and we affirm.
The trial judge denied the defendant's motion for a new trial without a hearing and without written findings. Whether to grant a postconviction motion for a new trial rests in the discretion of the motion judge, see Commonwealth v. Watson, 455 Mass. 246, 256 (2009), and "[r]eversal for abuse of discretion is particularly rare where the judge acting on the motion was also the trial judge." Commonwealth v. Schand, 420 Mass. 783, 787 (1995). Furthermore, the trial judge may "rely on his familiarity with the trial when deciding the motion." Commonwealth v. Britto, 433 Mass. 596, 602 (2001).
1. Identification. The defendant's only argument in her motion for a new trial, that her trial counsel was ineffective by failing to file a motion for a nonsuggestive identification, is without merit. "A strategic decision by counsel will be deemed constitutionally ineffective only if it was manifestly unreasonable at the time it was made." Commonwealth v. Bell, 455 Mass. 408, 421 (2009). In an affidavit submitted as part of the record on the motion for a new trial, trial counsel stated that he "considered filing" such a motion "but decided it was unwise." He thought the defendant's "distinctive appearance" would have made her "stand out in any courtroom where such a procedure could have been conducted." He "saw little potential benefit and substantial potential risk, and moreover already had significant cross-examination material on the identification issue for trial."
Counsel did in fact question the identifying witnesses at trial about the weaknesses of their identifications and emphasized these weaknesses in his closing argument.
As trial counsel suggested, any in-court identifications resulting from a nonsuggestive procedure would have been more inculpatory than the identifications as they occurred. The decision to avoid the risk of such an identification was, on its face, a valid strategic option and was not manifestly unreasonable. Cf. Commonwealth v. Conceicao, 388 Mass. 255, 265 (1983) ("[W]here trial counsel did not move to suppress the photographic identification but rather cross-examined the witnesses extensively, and strenuously argued the weakness of the identification testimony, trial counsel's actions may not be characterized as 'manifestly unreasonable'").
The defendant also contends, for the first time on appeal, that her trial counsel provided ineffective assistance by reason of his failure to file a motion to exclude any in-court identifications. It is well established that "the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). The defendant has failed to demonstrate either that trial counsel's failure to file such a motion was not a tactical decision, or that it was manifestly unreasonable. Such a decision was not inconsistent with the primary strategy of challenging the strength of the witnesses' identifications.
Furthermore, "[i]t is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success." Conceicao, supra at 264. Because there is no basis to conclude (and the defendant does not argue) that the out-of-court identifications were impermissibly suggestive, the defendant has not shown that the judge likely would have granted either motion. See Commonwealth v. Bol Choeurn, 446 Mass. 510, 520 (2006), quoting from Simmons v. U.S., 390 U.S. 377, 384 (1968) ("an in-court identification is excluded if it is tainted by an out-of-court confrontation arranged by the Commonwealth that is 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification'"). In addition, "[w]hether 'the extraordinary measure of an in-court identification procedure was called for' is a matter that rests within the sound discretion of the judge." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010), quoting from Commonwealth v. Dahl, 430 Mass. 813, 825 (2000).
The Supreme Judicial Court recently announced a new rule for the admission of in-court identifications "where a witness before trial has made something less than an unequivocal positive identification of the defendant during a nonsuggestive identification procedure." Commonwealth v. Collins, 470 Mass. 255, 265 (2014). However, this rule is to be applied prospectively, ibid., and "defense counsel was not ineffective for failing to make an objection that would have been futile under the prevailing caselaw." Id. at 261.
2. Other claims. The defendant argues, also for the first time on appeal, but see Zinser, supra at 810, that her trial counsel was ineffective for failing to (1) explore potential juror biases through individual voir dire and (2) request a limiting jury instruction regarding the use of the defendant's mug shot in the photo arrays. These claims also fail for substantially the reasons set forth in the Commonwealth's brief at pages twenty-two through twenty-nine.
We do not require a lawyer to "pursue every possible avenue in order to forestall an ineffective assistance claim." Commonwealth v. Britto, 433 Mass. 596, 604 (2001). The record demonstrates that the judge and defense counsel employed other means of assessing juror impartiality related to violence, and the defendant has not shown that trial counsel's advocacy during jury selection fell "measurably below that of an ordinary fallible lawyer" or resulted in any prejudice. Saferian, supra at 96. Finally, it was not manifestly unreasonable for trial counsel to choose not to bring further attention to the use of the defendant's mug shot, particularly when the array contained no markings indicating that the photos were mug shots and, during the course of trial, there was no reference to the photos as mug shots. See Commonwealth v. Fredette, 396 Mass. 455, 466-467 (1985).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Green, Grainger & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 25, 2015.