Opinion
10-P-1393
09-12-2011
COMMONWEALTH v. ANTONIO CIARAMITARO.
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 possessing cocaine with intent to distribute, G. L. c. 94C, § 32A(d); distribution of cocaine, ibid.; and two counts of distributing cocaine within a school zone, G. L. c. 94C, § 32J. In a subsequent, jury-waived trial, the defendant was found guilty of being a habitual offender as to the possession with intent to distribute and distribution counts. G. L. c. 279, § 25. In a memorandum and order pursuant to this court's rule 1:28, the defendant's convictions were affirmed on direct appeal, Commonwealth v. Ciaramitaro, 73 Mass. App. Ct. 1110 (2008), and further appellate review was denied on January 29, 2009, 453 Mass. 1102 (2009). The rescript from this court affirming the judgments was docketed in the trial court on February 3, 2009.
The Melendez-Diaz v. Massachusetts opinion issued on June 25, 2009. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz I).
Thereafter, in November of 2009, the defendant filed a motion for new trial, arguing that a new trial was required because: (1) the admission of two drug certificates of analysis at trial, without accompanying expert testimony, violated his confrontation clause rights under the rule of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz I); and (2) both trial and initial appellate counsel were ineffective because (a) appellate counsel failed to raise sufficiency of the evidence as an issue in the direct appeal, and (b) both trial and appellate counsel failed to challenge, for several reasons, the testimony of a witness concerning the school zone distance measurement. The new trial motion was heard and denied by the judge who presided over the jury and jury-waived portions of the defendant's underlying trial. It is the denial of this new trial motion that is the subject of this appeal. We affirm.
We review a motion judge's decision to grant or deny a motion for new trial 'only to determine whether there has been a significant error of law or other abuse of discretion.' Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Moreover, where, as here, the motion judge was also the trial judge, we extend 'special deference' to the action taken. Ibid.
Retroactivity. The judge determined that a new trial was not warranted on confrontation clause grounds, as a result of the introduction of the drug certificates, because the rule in Melendez-Diaz I was a 'new' rule and, therefore, unavailable for retroactive application in collateral review. We stayed this appeal pending resolution, by the Supreme Judicial Court, of Commonwealth v. Melendez-Diaz, 460 Mass. 238 (2011) (Melendez-Diaz II), in which the central appellate issue was whether the Supreme Court's holding in Melendez-Diaz I would apply retroactively to collateral review of a conviction finalized after Crawford v. Washington, 541 U.S. 36 (2004), and Commonwealth v. Verde, 444 Mass. 279 (2005), but before Melendez-Diaz I. The determination of the Supreme Judicial Court in Melendez-Diaz II, supra at 242-248 & n.9, holding that, where a judgment is final, there is not generally retroactivity on collateral review regarding 'records produced pursuant to G. L. c. 111, §§ 12 and 13,' is dispositive in the present case as to the portion of the defendant's motion for new trial based on an asserted confrontation clause violation.
The judge's decision was prescient in its analysis of this issue of retroactivity and presaged the rule adopted by the Supreme Judicial Court in Melendez-Diaz II.
Ineffective assistance of counsel. The defendant also argues that a new trial is required because he received ineffective assistance of trial and initial appellate counsel. Substantially for the reasons set forth in the judge's lengthy and persuasively reasoned memorandum and order, we conclude that neither the defendant's trial, nor appellate, counsel was ineffective.
We provide a brief summary. First, the defendant challenges appellate counsel's failure to raise sufficiency of the evidence as an issue in the direct appeal. Specifically, he contends that the Commonwealth failed to prove that the cocaine he possessed was intended for distribution, rather than personal use. This claim is without merit.
Appellate counsel's failure to raise this issue 'cannot constitute ineffective assistance because the argument[] would have been of no avail.' Commonwealth v. Hudson, 446 Mass. 709, 727 (2006). Cf. Commonwealth v. Comita, 441 Mass. 86, 90-91 (2004) (holding that to prevail on an ineffective assistance claim based on failure to file a motion, defendant must demonstrate 'a likelihood' that the motion would have been successful). Here, as explained in the judge's memorandum and order, the evidence, when viewed under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), was sufficient to prove that the cocaine was possessed with the intent that it be distributed. , Therefore, this argument would have been unsuccessful even had it been properly raised on direct appeal. As a result, it does not provide the basis for a new trial presently.
In spite of appellate counsel's omission of this issue on direct appeal, review under the Latimore standard by the judge, and this court presently, is, nonetheless, appropriate because 'findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.' Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
As to the evidentiary sufficiency, the judge found as follows:
'[T]he evidence at trial established that the defendant made a hand-to-hand distribution of cocaine and was subsequently arrested with a similar amount of cocaine in his pocket, which he had stored in a plastic bag. Two detectives testified that both the amount of cocaine on his person and the manner in which it was packaged were consistent with street-level cocaine distribution. Notwithstanding Det. Cherubino's testimony on cross-examination that the amount of cocaine recovered could be consistent with personal use if 'no other factors' were present, here, where there was other actual evidence of the defendant's intent to distribute (most significantly, that he had just made such a distribution), a rational trier of fact could have found beyond a reasonable doubt that the cocaine found on the defendant's person was not for his own consumption.'
The defendant's second claim of ineffective assistance of counsel is directed at both trial and appellate counsel and involves the trial testimony of prosecution witness Peter Messina -- the engineer for the city of Everett -- regarding the proximity of the drug sale to the school zone. In particular, the defendant argues that trial counsel was ineffective in failing to object to: (1) the late disclosure that Messina would be a witness; (2) the failure to qualify Messina as an expert; (3) Messina's reliance on hearsay to determine the defendant's place of arrest as a reference for the school zone distance calculation; and (4) the reliability of Messina's computer and manual measurements. The defendant argues that appellate counsel was ineffective in failing to address these issues in the direct appeal. Substantially for the reasons provided on pages eight and nine of the judge's memorandum of decision and order, the defendant's arguments are unavailing.
In particular, as to the late disclosure of the witness Messina (as the judge observed), it is unlikely that any such prejudice could be shown given that the defendant was on notice from the time of his indictment that the Commonwealth intended to prove at trial the school zone charge. Compare Commonwealth v. Stote, 433 Mass. 19, 23 (2000). Moreover, regarding expert qualifications, direct examination demonstrated that Messina -- an engineer with twelve years of experience in working with city maps generated by a computer program with which he was very familiar -- had 'sufficient education, training, experience and familiarity with the subject matter of the testimony.' Commonwealth v. Richardson, 423 Mass. 180, 183 (1996) (internal quotations and citations omitted). Relatedly, in spite of his claims to the contrary, the defendant has not shown that the methodologies employed by Messina were flawed or that the margin for error in Messina's calculations was impermissibly large. We note that defense counsel conducted cross-examination of Messina with respect to his measurements and methodology.
Lastly, as to the defendant's argument that Messina relied on impermissible hearsay from an unidentified Everett police officer in determining the defendant's point of arrest, this too is without merit. As the judge reasoned, an expert may rely on facts outside the record in forming his or her opinion, so long as such facts would be independently admissible. See Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986).
Order denying motion for new trial affirmed.
By the Court (Berry, Mills & Graham, JJ.),