Opinion
19-P-1693
12-16-2020
COMMONWEALTH v. ALEX Y. DELGADO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A District Court jury convicted the defendant of assault and battery and of larceny from a person. The trial judge subsequently denied the defendant's motion for a new trial without an evidentiary hearing. In this consolidated appeal, the defendant primarily challenges the denial of his motion for a new trial. We affirm.
Background. We begin by summarizing the trial evidence as it was presented to the jury, reserving certain details for later discussion. Outside a convenience store in Lawrence, two men physically attacked a store patron (victim) who walked by them. One of the men, who was dressed in a distinctive multicolored jacket, then took the victim's cell phone and hat, which had fallen on the ground during the altercation. Two surveillance cameras outside the store captured the crime in progress, and video footage from those cameras was admitted as trial exhibit 1 (ex. 1). The video footage displayed not only the views taken from two cameras outside the store, but also the views taken from two cameras inside the store, with the four synchronized views appearing as separate panels.
In fact, although the trial transcript refers to ex. 1 as "the video," ex. 1 was a digital video disc that contained two digital files that covered two distinct time periods. One file covered the period in which the melee occurred, and the other covered the period just prior to the incident. The earlier video clip was relevant because it showed the man in the multicolored jacket buying something from the store clerk on duty, Carlina Perez. At trial, Perez identified the man in the multicolored jacket as the defendant, whom she characterized as a regular store customer that she did not know well. Apparently concluding that the man in the multicolored jacket inside the store was the same man in the multicolored jacket who attacked the victim directly thereafter outside the store, the jury convicted the defendant.
Because the victim was unable to identify the man who attacked him, the Commonwealth needed to identify the defendant through other means.
The defendant filed a motion for new trial alleging that his trial counsel was constitutionally ineffective in multiple respects: (1) by failing, during jury selection, to address the potential bias allegedly exhibited by a prospective juror regarding Hispanic males, (2) by failing to impeach Perez as to the basis of her knowledge; and (3) by failing adequately to bring to the defendant's attention the earlier video clip showing him inside the store. He also argued in the alternative that the Commonwealth was impermissibly tardy in disclosing the earlier video clip during discovery. Layered on top of his substantive claims is the defendant's procedural argument that the judge at least should have granted him an evidentiary hearing on his motion for new trial.
Discussion. 1. Juror no. 13's alleged bias. During his voir dire of the pool of prospective jurors, the judge had the following interchange with juror no. 13:
Q.: "Do you believe that Hispanic males are more likely to commit a crime of violence than another ethnicity of people?"Defense counsel declined to argue that the prospective juror should be stricken for cause or to exercise a peremptory challenge for him, and juror no. 13 was seated on the jury. The defendant, a Hispanic male, now argues that juror no. 13's comments during voir dire demonstrated obvious potential bias against Hispanic males, characterizing juror no. 13 as "an admittedly bigoted juror whose capacity for fairness was categorically undermined." Based on this premise, he further contends that his attorney was ineffective for not striking juror no. 13, or by, at the least, failing to inquire further on the topic.
A.: "Based on ethnicity alone? No."
Q.: "Okay. Is there anything else I haven't said -- anything else that you think that they're more inclined to be criminals or anything?"
A.: "Socioeconomic status is a predictor of crime. But I don't think that's the --"
Q.: "Okay. So --"
A.: "-- so it's based on ethnicity alone, no."
Q.: "No. Okay."
To make out a claim of ineffective assistance, a defendant must show both "behavior of counsel falling measurably below [that] which might be expected from an ordinary fallible lawyer," and that such deficient performance "likely deprived [him] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Choosing a jury involves highly discretionary strategic decisions. A defendant cannot substantiate a claim of ineffective assistance with respect to such decisions unless he can show that such choices were "manifestly unreasonable when made." Commonwealth v. Watt, 484 Mass. 742, 762 (2020), quoting Commonwealth v. Coonan, 428 Mass. 823, 827 (1999). The defendant has not made such a showing here. Defense counsel may have favored having juror no. 13 on the jury because the nuanced nature of his response suggested that he would consider the evidence in the case carefully. Alternatively, there may well have been reasons undisclosed by the record why trial counsel affirmatively wanted juror no. 13 on the jury.
As noted, the defendant argues that his trial counsel in any event should have pressed for additional inquiry of juror no. 13. Even decisions on how much to inquire of prospective jurors involve strategic decision-making because such inquiry might provide the other side a reason to strike a juror counsel might want on the jury.
Nor has the defendant demonstrated a viable claim of prejudice. We disagree with the defendant's premise that juror no. 13's voir dire answers manifestly showed him to be biased against Hispanic males. Several leaps are required to infer that any preconceptions held by juror no. 13 improperly infected his consideration of the evidence. In any event, the judge did not abuse his discretion in concluding that a new trial was not warranted by defense counsel's allowing juror no. 13 to sit on the jury without further questioning.
2. Impeachment of Perez. The defendant asserts that he and Perez had been romantically involved and that she therefore perjured herself when she testified that she knew the defendant only as a customer. Based on this, he claims that his trial counsel was ineffective by not impeaching Perez about their relationship. The defendant's contention that he and Perez were romantically involved is at least somewhat suspect; notably, the defendant's detailed affidavit makes no such claim.
In any event, even if we assume that Perez lied about the limited nature of how she knew the defendant, he could not show that his counsel was constitutionally ineffective by choosing not to impeach her about this. The cases recognize that it is rarely, if ever, that the failure to impeach a witness can be used to make out a claim of ineffective assistance. See, e.g., Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). This is at least in great part due to the fact that deciding whether or how to impeach a witness typically involves complicated strategic considerations. See id., quoting Commonwealth v. Finstein, 426 Mass. 200, 203 (1997). Again, it is black letter law that "arguably reasoned tactical or strategic judgments" cannot amount to ineffective assistance unless they were "manifestly unreasonable" when made. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). Here, there were obvious reasons why raising the possibility that Perez was romantically involved with the defendant might well harm the defendant more than help him. The more Perez was familiar with the defendant, the more plausible it would be that she could identify him from the video clips or photograph. Under these circumstances, a decision not to question Perez about whether she had been romantically involved with the defendant was not manifestly unreasonable and therefore could not amount to ineffective assistance.
3. Issues related to earlier video clip. As noted, two of the defendant's appellate arguments involve the earlier video clip based on which Perez identified the defendant as the man in the multicolored jacket who had been standing at the counter inside the store just before the incident outside the store. According to the defendant, his trial counsel did not appreciate the importance of this portion of the surveillance video prior to the day of trial and, as a result, he (the defendant) was deprived of even having the opportunity to view this video clip until it was shown at trial. The defendant argues in the alternative that the Commonwealth failed to turn over the earlier video clip prior to the day of trial. The defendant maintains that if he had known of the existence of this portion of the video at the time the Commonwealth extended him a favorable plea offer, he never would have rejected that offer. Before we turn to each argument, some additional detail is necessary.
The victim reported the crime approximately four hours after it occurred. About three weeks later, an investigating officer reviewed surveillance video footage at the store taken before and during the incident. Using his cell phone, the officer took a still photograph of the video footage showing the man in the multicolored jacket standing at the counter. The officer showed the video footage and the still photograph to a detective who concluded that the person appeared to be the defendant, an individual known to the police by the name Achilles.
The still photo was admitted at trial as ex. 2, something that we confirmed by sua sponte ordering that ex. 2 be transferred to us. A copy of ex. 2 appears in the record appendix at 26, but it is not marked as such. Adding further confusion, the table of contents for the record appendix misidentifies a different photo as ex. 2.
The officer next showed the video footage to Lys Ortiz, a clerk at the store. Ortiz had not been working at the time of the incident, but she recognized the person shown in the video and still photo as Achilles, a regular customer. Then, when shown a booking photograph of the defendant, she confirmed that the defendant was Achilles.
The following day, the officer showed the still photo taken from the earlier video clip to a third store employee, Liliana Marte. Like Ortiz, Marte identified the person shown in the photo as Achilles, a customer who visited the store "all the time." After being shown the booking photograph of the defendant, Marte identified the defendant as the person she knew as Achilles. Moreover, the record reflects that a private investigator hired by the defendant also spoke with Marte who told the investigator that she was "100% sure" that the person in the photo shown to her by police was Achilles.
The officer eventually tracked down Perez, the store clerk who had been on duty on the night of the incident and the witness who identified the defendant at trial. Like Marte, Perez identified the man shown in the still photo as Achilles, a regular customer. Then, when she was shown a photo array, Perez identified a photograph of the defendant as showing Achilles.
It is undisputed that in pretrial discovery, the Commonwealth turned over the portion of the video footage that showed the incident outside the convenience store, the police reports (which discuss both portions of the video footage), and the still photograph taken from the earlier video clip. What is in dispute is the date on which the Commonwealth turned over the earlier video clip itself. An affidavit submitted by the defendant's trial counsel avers that while he had received the video clip of the incident itself long before trial, he did not receive the earlier video clip until the day of trial. He further stated that having received the earlier video clip on the morning of trial, he discussed with the defendant what that clip showed, but he was unable to play the clip to the defendant, because the defendant was at that point in lock-up.
Still, the defendant acknowledges in his affidavit that, as of August 22, 2017 (the date the Commonwealth first offered a favorable plea agreement), he already was aware of the video of the incident itself and of the still photograph showing the alleged perpetrator inside the store. He also admits that he was aware that there were "witnesses who would identify [him] as the person in the video and photo." Even if we assume that -- for whatever reason -- the defendant had not seen the earlier video clip prior to trial, this alone could not substantiate a claim of ineffective assistance. While it is true that the still photo taken from the earlier video clip is somewhat blurry, the police reports document that all three store employees readily were able to identify the defendant as the man shown in that photo. Under these circumstances, the earlier video clip itself was of limited inculpatory value, and any failure by counsel to bring that clip to the defendant's attention would not demonstrate that counsel's behavior fell short of ordinary fallible counsel's. Saferian, 366 Mass. at 96. Moreover, because the defendant admits that by the time the Commonwealth made its plea offer, he knew that there were "witnesses who would identify him as the person in the video and photo," he cannot show that his lack of opportunity to review the earlier video clip caused him material prejudice. Id.
The copy of the still photo included in the record appendix is very blurry; the actual trial exhibit -- which we retrieved from the trial court, see note 3, supra -- is distinctly less so.
As a close reading of the trial transcript reveals, the prosecutor in fact intended to have Perez identify the defendant at trial from the still photo, not the earlier video clip. However, after the defendant pointed out that no one had testified that the still photo in fact had been taken from the surveillance footage, the prosecutor switched tack and used the earlier video clip instead. Thus, it appears that the prosecutor used the earlier video clip not because he had concluded that the still photo was too blurry, but because he had neglected to lay a foundation for what the photo was.
The Commonwealth points to an independent potential problem with the defendant's argument, the impossibility of fashioning an appropriate remedy. The prejudice the defendant claims is his rejecting a favorable plea offer, but a judge may lack authority to compel the Commonwealth to renew such an offer. See Commonwealth v. Mahar, 442 Mass. 11, 20-30 (2004) (Sosman, J., concurring). We pass over this issue.
The defendant's argument regarding the earlier video clip fares no better if recast as an alleged discovery violation. His claim that the Commonwealth failed to turn over that clip during mandatory discovery was not raised at trial. Even now, he makes no claim that any tardiness hampered him in how he addressed the evidence at trial. Instead, he asserts mainly that he would have accepted the Commonwealth's plea offer had he been aware of the earlier video clip when that offer was on the table. As explained above, however, he was aware at all relevant times that the Commonwealth had witnesses who could identify him.
4. Evidentiary hearing. The defendant argues that the judge erred by declining to provide him an evidentiary hearing on his motion for new trial. "In determining whether a substantial issue meriting an evidentiary hearing . . . has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's showing" (quotation omitted). Commonwealth v. Smith, 90 Mass. App. Ct. 261, 264 (2016), quoting Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). As to some issues, including those focused on juror no. 13 and those related to the impeachment of Perez, trial counsel offered no explanation for his actions, a silence that is "suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). See Commonwealth v. Upton, 484 Mass. 155, 162-163 (2020) ("A judge may deny a motion for a new trial without an evidentiary hearing where the moving party suspicious[ly] fail[s] to provide pertinent information from an expected and available source" [quotation and citation omitted]).
To be sure, trial counsel did aver that the Commonwealth failed to turn over the earlier video clip until the day of trial, and the Commonwealth disputed that issue (albeit without having submitted any counter affidavit). However, any dispute about this issue is not material. For purposes of our analysis of each of the alternative arguments the defendant has made based on the earlier video clip, we have assumed that any factual dispute would be resolved in the defendant's favor. Even with those assumptions in place, the defendant would not be entitled to relief. An evidentiary hearing to resolve any dispute of fact therefore was unnecessary.
Specifically, for purposes of evaluating the defendant's claim of ineffective assistance, we have assumed that trial counsel had timely possession of the earlier video clip, but for purposes of evaluating the defendant's claim of a discovery violation, we have assumed that the Commonwealth was late in turning over the clip.
Conclusion. Where, as here, the motion for new trial was heard by the judge who presided at trial, special deference is due to the judge's assessment that justice does not require a new trial. See, e.g., Commonwealth v. Daye, 411 Mass. 719, 734-735 (1992). The judge did not abuse his considerable discretion by denying the defendant's motion for new trial without an evidentiary hearing. We affirm the judgments and the order denying the defendant's motion for new trial.
To the extent the defendant's other arguments have not been explicitly addressed, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
So ordered.
By the Court (Wolohojian, Milkey & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 16, 2020.