Opinion
No. 11–P–153.
2012-07-27
COMMONWEALTH v. Michael BROWN.
By the Court (SIKORA, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michael Brown, appeals from the denial of his motion for a new trial. For the following reasons, we affirm the denial.
Background. The following facts emerge from the briefs of the defendant and the Commonwealth as undisputed or from the appellate record as well supported.
The defendant, appearing pro se, has furnished us with a record appendix containing portions of grand jury testimony, portions of trial testimony, and certain trial papers and exhibits. We do not have a continuous and comprehensive record of all Superior Court proceedings.
On November 9, 2006, a Superior Court jury found the defendant guilty of (1) kidnapping, (2) aggravated rape, (3) assault by means of a dangerous weapon, (4) assault and battery, and (5) armed robbery. The charged conduct occurred on May 6, 1990. The victim was a woman whom we designate as LP. The jury received the following evidence. LP testified that on May 5, 1990, shortly after midnight, she drove to a party at the Caribbean Culture Club on Blue Hill Avenue in the Dorchester section of Boston. She parked her car on nearby Callender Street and was walking toward the club. A man seized her by the neck, pointed a gun at her, and led her to the back of a nearby house. He took her jewelry and money. He blindfolded her, removed her pants, and had forcible vaginal intercourse with her. He left her on the ground. She did observe him but did not recognize him from any prior contact or observation.
LP testified that she got up, dressed, and went to the club. She found her boyfriend (later her husband), MB. She told him of the attack. They both then reported the crime to a nearby police officer. A friend of LP, Sonia Webb, then drove her to Brigham & Women's Hospital.
Medical personnel at the hospital performed a rape examination and created a rape kit. The examination identified semen on LP's clothing.
Thirteen years later, in 2003, a project testing DNA in unsolved cases against national databases produced a match of the DNA from LP's clothing with the defendant. Confirmation of the match resulted from a sample taken from the defendant in 2004. Police arrested the defendant in New York City in April of 2004, where a New York City detective interrogated him.
At trial the Commonwealth called nine witnesses (MB, five employees of the Boston police department, one employee of the Brigham & Women's Hospital, and one expert on the physical effects of sexual assault); the Commonwealth arranged for the reading of the New York City detective's testimony from an earlier hearing into the trial record. The Commonwealth listed, but did not call, Sonia Webb as a witness. The defendant did not call any witnesses. He had listed a woman named Hopa Bailey as a potential witness. She did not appear in court on the day on which the defendant would have called her. Defense counsel did not request a continuance or a capias for her.
After conviction, the defendant appealed. He challenged the sufficiency of the evidence. The Appeals Court affirmed the conviction in an unpublished decision. Commonwealth v. Brown, 73 Mass.App.Ct. 1128 (2009). In 2009, the trial judge denied a motion to revoke and revise his sentence. In 2010, the defendant filed a motion for a new trial; the judge denied it also. Still in 2010, the defendant moved for reconsideration of his motion for a new trial and for appointment of counsel. The judge denied both motions and drafted an extensive memorandum of decision. This appeal followed.
Analysis. The defendant presents the following issues. (1) He claims that his trial counsel performed ineffectively (a) by failure to call as witnesses Webb and Bailey; (b) by persuasion or prevention of the defendant from testifying; and (c) by failure to request an interpreter for him during trial as a hearing-impaired individual. (2) He claims that his appellate counsel ineffectively failed to assert the ineffectiveness of his trial counsel upon the foregoing grounds. (3) He asserts that the trial judge wrongly refused to give the jury a missing witness instruction. (4) He argues that LP submitted perjured testimony to the jury so as to leave insufficient valid evidence of guilt beyond a reasonable doubt .(5) Finally, he contends implicitly that the judge wrongly denied him the assistance of counsel and an evidentiary hearing for his motion for a new trial.
Standard of review. The reviewing court examines the denial of a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), only to determine the presence of a significant error of law or an abuse of discretion. See, e.g., Commonwealth v. Grace, 397 Mass. 303, 307 (1986); Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). If the motion judge has also served as the trial judge, her disposition of the motion will receive special respect from the appellate court. See, e.g., Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996); Commonwealth v. Lucien, 440 Mass. 658, 670 (2004). The motion judge may rely on her knowledge of the trial events for rulings upon the defendant's motion. Commonwealth v. Little, 384 Mass. 262, 269 (1981). The appellate court will defer also to the credibility determinations of the trial-and-motion judge, including her assessment of the strength or weakness of affidavit allegations. Commonwealth v. Thomas, 399 Mass. 165, 167 (1987). Commonwealth v. Ridge, 455 Mass. 307, 325 (2009). Finally, to deserve an evidentiary hearing, a defendant must raise substantial issues of fact or law. See, e.g., Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995); Commonwealth v. Goudreau, 442 Mass. 341, 348 (2004). Again, the trial-and-motion judge's determination of the value of an evidentiary hearing will receive particular appellate respect. “[A]ppellate courts defer to the trial judge's sense of the entire case, [her] nose for it, and so place in the sound discretion of the trial judge [the decision] whether to hold an evidentiary hearing on a motion for a new trial.” Commonwealth v. Smith, 29 Mass.App.Ct. 449, 454 (1990). Particularly with regard to claims of ineffective assistance of counsel, the reviewing court will respect the determination of the trial-and-motion judge if the defendant's motion papers bear the marks of “Monday morning quarterbacking” or “posttrial carpentry.” Id. at 455–456.
1. Ineffective assistance of trial counsel. No affidavit of trial counsel supports the defendant's claim of ineffectiveness. We examine the performance of trial counsel under the usual standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and ask whether counsel's performance both (a) fell measurably below the level expected from an ordinary fallible lawyer, and (b) likely deprived the defendant of an otherwise available substantial ground of defense.
(a) Omission of Webb and Bailey as witnesses. The defendant claimed that, for six to eight months before the date of the offenses, he had been involved in a romantic relationship with LP, that both Webb and Bailey knew about the relationship, and that he had informed his originally assigned trial defense attorney about their knowledge. He claimed further that the attorney had obtained affidavits from Webb and Bailey upon this subject. His motion lacked any affidavit support from the attorney and any other corroborating evidence or information whatsoever. The motion judge justifiably discredited the defendant's “self-serving affidavit.”
(b) Counsel's discouragement or prevention of defendant from testifying at trial. At the conclusion of the Commonwealth's case, the trial judge thoroughly examined the defendant upon the subject of his decision whether to testify or to remain silent. Her examination of him shows conclusively that he made the decision to testify intelligently and freely. A copy of the judge's dialogue with the defendant appears as Appendix 1 of this opinion. This contention is thoroughly specious.
(c) Counsel's failure to request an interpreter. A hearing-impaired criminal defendant is entitled to an interpreter during trial. G.L. c. 221, § 92A. The judge reported that throughout trial, including colloquies with the defendant outside the presence of the jury, she observed no hearing impairment warranting the use of an interpreter. Her direct and percipient observations are conclusive. The defendant's assertion has no credibility. Nor does any credibility arise for his contention that he was entitled to an interpreter during his interrogation by the New York City police.
2. Appellate counsel's failure to raise these issues on direct appeal. As the motion judge observed in her thorough opinion denying a request for a new trial, the groundless quality of the first three contentions relieves appellate counsel of any fault whatsoever for the omission of them from the direct appeal. Counsel has no duty to pursue futile arguments to an appellate court. Neither fault nor harm has occurred under the Saferian standard.
3. Missing witness jury instruction. The defendant claims that the judge should have instructed the jury to infer that the absence of the witness Sonia Webb supports an inference of some evidence favorable to the defendant. A party is entitled to the missing witness instruction if that absent witness naturally or predictably would have provided some testimony of “distinctive importance” to the position of the opposing party. See Commonwealth v. Schatvet, 23 Mass.App.Ct. 130, 134 (1986); Commonwealth v. Broomhead, 67 Mass.App.Ct. 547, 550 (2006). In this instance, Sonia Webb had no evidence of “distinct importance” additional to the information provided by MB and the employee of the Brigham & Women's Hospital. Her testimony would have been cumulative.
As the motion judge observed, the defendant's claim of an entitlement to such an instruction for the absence of Hopa Bailey is baseless. His attorney listed Bailey as a supportive witness. She did not appear. He cannot contend rationally that the jury should draw some inference favorable to him because his own witness failed to appear.
4. Claim of perjury by LP. This contention is futile. Any discrepancies in the testimony of LP sixteen years after a traumatic experience belong to the jury's assessment of credibility. The jury rendered its verdict.
5. Evidentiary hearing; appointment of counsel. The meritless quality of the foregoing contentions thoroughly justifies the discretionary determination of the trial-and-motion judge to deny an evidentiary hearing and the appointment of counsel.
Order denying motion for new trial affirmed.
APPENDIX I
The court: “Mr. Brown, we talked briefly yesterday about the decision that you have to make, which is probably the most difficult decision any defendant facing criminal charges has to make .”
The defendant: “Yes, sir.”
The court: “And that is whether or not to testify. And you understand that because of the presumption of innocence, you are not required to testify and you are fully within your rights to say to the Commonwealth, ‘Prove it.’ You understand that?”
The defendant: “Yes, sir.”
The court: “And you also understand that if you should choose to do so, you also have the option of presenting evidence in your defense, and included in that would be your own testimony? You understand that?”
The defendant: “Yes, sir.”
The court: “Now, I know you've had time to talk to [your attorney]. Have you had enough time to discuss this particular issue?”
The defendant: “Yes, sir.”
The court: “And are you satisfied that you've gotten fair and competent advice from [your attorney] on whether or not you should testify?”
The defendant: “Yes, sir.”
The court: “And have you made that decision?”
The defendant: “Yes, your Honor.”
The court: “And what is your decision going to be?”
The defendant: “Not to testify.”
The court: “All right. And has anyone threatened you or coerced you or made any promises which induced you to say I won't testify?”
The defendant: “No, your Honor.”
The court: “And is it a free act? Have you decided not to testify freely, of your own freewill?”
The defendant: “Yes, sir.”
The court: “And are you satisfied that this is in your best interest at this time?”
The defendant: “Yes, sir.”
Trial. Tr. 4/8–10.