Opinion
14-P-1440
12-04-2015
COMMONWEALTH v. JOHN R. COLLINS.
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
The defendant appeals from his conviction of unlawful possession of ammunition, arguing that he was denied the rights to a speedy trial and to effective assistance of counsel, and that the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.
Background. On July 21, 2010, Boston police officers executed a search warrant at 3 Oakhurst Street in Dorchester and recovered a firearm and some ammunition. On August 3, 2010, a criminal complaint issued from the Boston Municipal Court, charging the defendant with firearm and ammunition offenses. On November 9, 2010, the defendant was arraigned, and on February 16, 2011, a second complaint issued, charging the defendant with an additional offense arising out of the July 21, 2010, search. On June 2, 2011, the defendant filed a motion to suppress evidence seized from 3 Oakhurst Street. The defendant's brother Maxime Thevenin, who also was charged following execution of the warrant, challenged the search in a separate proceeding. A judge in the Boston Municipal Court allowed Thevenin's motion, the Commonwealth sought interlocutory review, and a panel of this court reversed the judge's decision. Commonwealth v. Thevenin, 82 Mass. App. Ct. 822 (2012) (Thevenin). On August 28, 2013, a second Boston Municipal Court judge denied the defendant's motion to suppress in light of our decision in Thevenin.
The first of the two complaints contained the ammunition possession charge of which the defendant was convicted.
The docket sheet contains an entry on June 3, 2011, which states, "Comm. to file motion for joiner [sic] no later than June 10, 2011." The next entry is from June 13, 2011, and does not reflect the filing of such a motion. The cases were not joined, and the assistant district attorney stated at the hearing on the defendant's motion to suppress that Thevenin "took a continued without a finding on his case."
Thereafter, a series of continuances ensued with varying notices on the docket sheet. The docket does not reflect any objections by the defendant to the continuances. On March 31, 2014, the day before jury selection, the defendant orally moved to dismiss the case pursuant to Mass.R.Crim.P. 36, as amended, 422 Mass. 1503 (1996). The Commonwealth objected, because "[i]t's an oral motion today [and] [t]he Commonwealth is entitled to notice"; the trial judge agreed, stating that the motion was not properly before her, and the motion was denied. The defendant renewed his motion the next day, the Commonwealth again objected, and the judge again denied the motion.
For example: on November 2, 2013, "[u]nable to be reached"; on December 13, 2013, "[a]ll parties ready Court congestion to Feb 3 . . . Rm 13 Trial First case out"; on February 3, 2013, "B/P answered ready for trial . . . B/P asked for continuance . . . contd to March 28 Room 13 trial."
At trial, the Commonwealth sought to link the defendant to one of the bedrooms at 3 Oakhurst Street. Boston police Sergeant Detective John Ford testified that he supervised execution of the warrant and that the search concentrated on two bedrooms located in the attic. The defendant was not present when the search was executed. In one room containing documents with Thevenin's name on them, the police found ammunition. In the other room, the police found a firearm, bullet casings, two bullets, and personal documents belonging to the defendant. On cross-examination, defense counsel asked Ford whether he had ever seen the defendant at 3 Oakhurst Street. Ford stated that he had seen the defendant on the porch there "many times," that it was his "job to be familiar with certain people in the district," and that the defendant "was somebody [Ford] needed to be familiar with." On redirect examination, Ford testified that 3 Oakhurst Street is located in "an area that we had to respond to quite a bit"; "[t]herefore, [Ford] paid close attention to that house."
Among the documents seized were the defendant's Social Security card, a Massachusetts identification card in the defendant's name, the defendant's birth certificate, Department of Public Health documents in the defendant's name, and a birthday card.
The judge struck Ford's final statement, "I've seen him -- I've seen him on videos, taken in front of the house --."
Ebony Thevenin (Ebony), the defendant's sister, testified that she was living at 3 Oakhurst Street in July of 2010 with her grandmother, her younger sister, and her two brothers, John Collins and Max Thevenin. After Ebony testified that the defendant's friends and her cousin also stayed in the defendant's bedroom, the assistant district attorney was allowed to impeach her with the transcript of her grand jury testimony. Ebony acknowledged being asked whether the defendant shares his bedroom with anyone else and answering "no," and she remembered answering "no" when asked if anyone else slept on the couch in the defendant's bedroom. On cross-examination, after referring to her prior testimony as "grand jury testimony," defense counsel elicited from Ebony that, at the time of the search, the defendant was living in Roxbury with his girl friend, and that his bedroom at 3 Oakhurst Street also was used as a music recording studio to which many people had access.
The jury found the defendant not guilty of defacing a firearm, not guilty of unlawful possession of a firearm, and guilty of unlawful possession of ammunition.
Discussion. 1. Denial of motion to dismiss on speedy trial grounds. Pursuant to rule 36(b)(1)(C), "a defendant shall be tried within twelve months after the return day in the court in which the case is awaiting trial." The defendant bears the burden of making a prima facie showing of delay, which he may satisfy by using the docket entries. Barry v. Commonwealth, 390 Mass. 285, 289, 291 (1983). Here, the docket shows that the defendant's "return day" was November 9, 2010, when he was arraigned. See id. at 291. Under rule 36, the defendant "was entitled to be tried within twelve months of that date unless the Commonwealth established that further delay was justified." Commonwealth v. Mattos, 404 Mass. 672, 674 (1989).
Recognizing the very real problem of overcrowded dockets in trial courts of this Commonwealth, especially in certain courthouses of the District Court and the Boston Municipal Court, we agree with the defendant that the long delay in bringing his case to trial is not to be condoned, and that the mandates of rule 36 cannot be ignored. That being said, the judge did not abuse her discretion in denying the defendant's motion to dismiss. See Commonwealth v. Taylor, 469 Mass. 516, 524 (2014) ("On appeal, we consider whether the judge abused [her] discretion in assessing the defendant's speedy trial claims"). The defendant orally moved to dismiss on the day before trial; "[c]ontrary to Mass.R.Crim.P. 13(a)(2) and (4), no affidavit of the factual basis of the motion was attached, and the motion was not accompanied by a memorandum of law." Commonwealth v. Mattos, supra at 675. Accordingly, "the defendant was not entitled to be heard on the motion." Id. at 676.
Now as appearing in 442 Mass. 1516 (2004).
Even if he had been so entitled, "charges are not to be dismissed [pursuant to rule 36] . . . if the defendant 'acquiesced in, was responsible for, or benefited from the delay.'" Commonwealth v. Rodgers, 448 Mass. 538, 539-540 (2007), quoting from Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). "For these purposes, '[a] failure to object to a continuance or other delay constitutes acquiescence,'" id. at 540, quoting from Commonwealth v. Tanner, 417 Mass. 1, 3 (1994), and the docket is "prima facie evidence of the facts recorded therein," Barry v. Commonwealth, supra at 289. The docket here does not reflect any objections to the continuances; and, therefore, the docket provides prima facie evidence that the defendant acquiesced. "A defendant cannot sit by passively, but must make sure that an objection to a specific continuance is timely noted," Commonwealth v. Fling, 67 Mass. App. Ct. 232, 236 (2006), and we see no reason to ignore the mandates of rule 13 and thereby deprive the Commonwealth of an opportunity to properly prepare its opposition to a rule 36 motion.
Because rule 36 sets forth several excludable periods of delay, computing the twelve-month speedy trial period is often a painstaking and time-consuming process for prosecutors.
2. Remaining claims. The defendant's remaining claims require little discussion. The defendant did not move for a new trial, and "our courts strongly disfavor raising claims of ineffective assistance on direct appeal." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). While an ineffective assistance claim nevertheless "may be resolved on direct appeal . . . when the factual basis of the claim appears indisputably on the trial record," Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), that is not the case here.
Moreover, based on what we can discern from the trial record there is no merit to the defendant's ineffectiveness arguments. In light of the inevitable introduction of the defendant's personal papers, defense counsel was left but with one trial tactic -- to attempt to distance the defendant from the premises. Counsel's questions to Ford therefore were appropriate, although the defendant may have preferred different answers. See Commonwealth v. Bonnett, 472 Mass. 827, 832 (2015) ("A tactic that was reasonable in the circumstances, given the information available at the time, will not support an ineffective assistance claim"). Trial counsel was not ineffective for failing to request a mistrial during Ford's cross-examination; the judge struck the inadmissible testimony and "correctly relied on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant," such that it would not have been an abuse of discretion to deny a motion for a mistrial. Commonwealth v. Amirault, 404 Mass. 221, 232 (1989). "It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success," Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983), and we see no "serious incompetency, inefficiency, or inattention of counsel" or behavior "falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Instead, defense counsel sought another curative instruction.
Finally, we see no error in the prosecutor's closing argument, much less one that created a substantial risk of a miscarriage of justice. The prosecutor did not discuss excluded evidence; her reference to Ebony's prior testimony as "grand jury testimony" was accurate; and, viewed in the context of the evidence presented at trial, the argument represented a fair comment on the evidence.
Judgment affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: December 4, 2015.