Opinion
16-P-945
05-22-2017
COMMONWEALTH v. Hailton DACOSTA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was indicted on possession of cocaine with intent to distribute. His first trial, in October, 2014, resulted in a mistrial due to a hung jury. He was tried again in April, 2015, and convicted. In appealing his conviction, he argues that his second trial violated the common-law prohibition against double jeopardy and that the actions of his counsel in failing to move to dismiss prior to the second trial constituted ineffective assistance. We affirm.
The following evidence was presented at the first trial. The defendant was being investigated by the New Bedford police department during January of 2013. After surveillance of his apartment revealed, among other things, unusually heavy foot traffic going in and out of the rear door of the defendant's building, police obtained and executed a search warrant for both the defendant and his apartment. While searching the defendant, police discovered in his pocket "an iPhone and a sandwich bag that contained 13 individual knotted corner bags," containing what was later determined to be crack cocaine. In searching the apartment, police found additional sandwich bags, $554 in cash, and an open box of baking soda—which is commonly used as a "cutting agent" when preparing cocaine for distribution. At trial, the Commonwealth's expert testified that the thirteen bags of cocaine, known as "corner baggies," were worth between $20 and $40 each based on weight. The expert further opined that the evidence of thirteen bags each containing about the same amount of crack cocaine was consistent with distribution.
The defendant's primary argument is that after his first trial ended in a mistrial, jeopardy terminated because "the Commonwealth fail[ed] to present evidence legally sufficient to convict, the defendant move[d] for a required finding of not guilty, and the judge declare[d] a mistrial after the jury ha[d] failed to agree on a verdict." Berry v. Commonwealth, 393 Mass. 793, 799 (1985). As a result, the defendant argues, his retrial violated the prohibition against double jeopardy. Notwithstanding that his retrial was never objected to, he argues it must still be reviewed for a substantial risk of a miscarriage of justice. We disagree.
This court was faced with a comparable factual situation in Commonwealth v. Davis, 83 Mass. App. Ct. 484 (2013), where we held that "[t]he proper way to have raised a double jeopardy claim would have been by a motion to dismiss the indictments prior to Trial II; then, if that motion were denied, to have filed a petition for relief with a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, § 3." Id. at 493. The court further held that, despite the fundamental right to be protected from double jeopardy, that right may still be waived if not raised at the lower level. Ibid. "[B]y failing to assert the defense of double jeopardy prior to his second trial, the defendant waived the right to do so here." Ibid., quoting from Commonwealth v. Spear, 43 Mass. App. Ct. 583, 587 (1997). The defendant's failure to raise this claim until now mirrors the situation in Davis and similar cases, in which we concluded that the argument was waived and need not be addressed on the merits.
Contending that waiver is inappropriate in this situation, the defendant argues that we should review for a substantial risk of a miscarriage of justice. While we reject the defendant's argument and hold that the double jeopardy claim was waived, we note that the facts of this case would not support reversal under the substantial risk standard. See Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997) (Substantial risk exists "if the evidence and the case as a whole ... [leave the court] with a serious doubt that the defendant['s] guilt had been fairly adjudicated"). Considering the strength of the evidence presented by the Commonwealth, including but not limited to its expert witness, we have no serious doubt that the defendant's guilt has been fairly adjudicated.
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The defendant further argues that his attorney was ineffective in failing to file a motion to dismiss on double jeopardy grounds prior to the second trial. We review that argument first to determine whether "there has been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If that threshold is met, we then determine "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid.
We conclude that the decision by the defendant's attorney not to pursue, prior to the second trial, dismissal on double jeopardy grounds did not constitute ineffective assistance of counsel. As noted in Berry, double jeopardy would be triggered only if the defendant could show that the Commonwealth did not present sufficient evidence to convict him in the first trial. The defendant argues that the evidence in the first trial could only show that he possessed cocaine and was insufficient to demonstrate an intent to distribute. We disagree.
Simply put, although not overwhelming, the evidence adduced during the first trial was sufficient to support a conviction for possession with intent to distribute and to survive a motion for a required finding of not guilty. Cf. Commonwealth v. Sepheus, 468 Mass. 160, 169 (2014). Counsel's failure to raise a motion that had little chance of success did not deprive the defendant of effective assistance of counsel. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) ("It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success").
Judgment affirmed.