Opinion
10-P-1930
03-02-2012
COMMONWEALTH v. CHARLES DEVOE.
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 Superior Court jury convicted the defendant of unlawful possession of a firearm, G. L. c. 269, §10(a). In a subsequent proceeding, the defendant pleaded guilty to being an armed career criminal, G. L. c. 269, §10G. On appeal, the defendant challenges the sufficiency of the Commonwealth's evidence and claims that his trial counsel was constitutionally ineffective. We affirm.
The judge allowed the defendant's motion for required findings of not guilty on two additional firearms violations.
1. Sufficiency of the evidence. The evidence, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), permitted the jury to find the following facts. On January 10, 2009, Boston police Officers Nytisha Brown and Nichole Tyler were parked in a marked police wagon at the Jackson Square Transit Station. At approximately 2:00 A. M., they heard gunfire. At the same time, they observed three men standing nearby on the sidewalk. The officers responded to the gunshots by activating the wagon's lights and sirens, which caused the three men to run away. The officers requested backup and then pursued the men on foot. Two of the men ran toward the officers, while the third, later identified as the defendant, ran in the opposite direction. Initially, the officers were focused on stopping the two men closest to them. However, Officer Tyler saw the defendant 'out of the corner of [her] eye,' and chased after him as soon as other officers arrived on the scene about twenty seconds later.
While Officer Tyler lost sight of the defendant for ten or fifteen seconds, she alerted her colleagues to the direction in which he was running, and another officer apprehended him. Officer Tyler then identified the defendant as the same person she had seen standing on the sidewalk around the time she heard the gunshots. Her identification was based on the defendant's 'dark' clothing, height, and complexion. The fact that the events occurred in the early morning and few people were out provided additional support for the identification.
Meanwhile, Boston Housing Authority police Officer Jason Altavesta was working a detail inside a nearby housing development. He also heard gunfire, which prompted him to look out the window of the sixth floor where he was stationed. He saw two African-American men, one of whom was wearing a black coat. The man dressed in black stopped at a dumpster and threw something into it, causing a 'loud bang.' The firearm in question was recovered from the dumpster.
At trial, the Commonwealth proceeded on the theory that Officer Altavesta observed the defendant at the dumpster after Officers Brown and Tyler had seen him on the sidewalk. The defendant contends that the evidence does not support this theory. He posits that Officer Altavesta could not have seen the same person as Officer Tyler because the person Officer Altavesta observed was walking and not running. However, it matters not how the prosecutor viewed the evidence. The relevant inquiry is whether the evidence and the reasonable inferences drawn therefrom are sufficient to permit a rational trier of fact to find guilt beyond a reasonable doubt.
'In order to sustain a conviction for unlawful possession of a firearm, the Commonwealth must prove beyond a reasonable doubt that the defendant actually or constructively possessed the firearm.' Commonwealth v. Hubbard, 69 Mass. App. Ct. 232, 237 (2007). In this case, the evidence was sufficient to permit the jury to infer that the defendant threw the firearm in question into a dumpster either before or after he was observed by Officer Tyler. Additionally, the jury reasonably could have found that the defendant ran away from Officer Tyler, but later walked up to the dumpster. The Commonwealth met its burden of proving that the defendant knowingly possessed a firearm beyond a reasonable doubt under any one of these scenarios.
Next, pointing to various inconsistences in the witnesses' testimony and the failure of Officer Altavesta to identify him, the defendant argues that the evidence is so weak that his conviction rests on nothing more than impermissible inferences. 'In cases in which the evidence is largely circumstantial, 'it is not essential that the inferences drawn should be the only necessary inferences . . . . It is enough that [the inferences] be reasonable and possible." Commonwealth v. Martino, 412 Mass. 267, 272 (1992). Moreover, '[t]o the extent that conflicting inferences are possible from the evidence, 'it is for the jury to determine where the truth lies" Ibid., quoting from Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981). Indeed, we have frequently observed that, 'it is 'the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 153-154 n.5 (2008), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979). Reduced to its essentials, the defendant's arguments are directed to the weight and credibility of the evidence, a matter which lies wholly within the province of the jury. Consequently, his assertion does not withstand analysis under the Latimore standard.
2. Ineffective assistance of counsel. The defendant argues that his trial counsel was ineffective for failing to obtain funds for an expert witness on the reliability of eyewitness identification and for failing to accept the judge's offer to instruct the jury on the possibility that the witnesses, in particular Officer Tyler, made an honest but mistaken identification.
We analyze the defendant's claims to determine 'whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where, as here, an ineffective assistance of counsel claim is raised for the first time on direct appeal, we will reverse the defendant's conviction[s] only if the ineffectiveness 'appears indisputably on the trial record.' Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
Leaving aside the issue whether expert testimony on eyewitness identification would have been deemed admissible (the identification at issue was made primarily on the basis of the defendant's clothing, as opposed to his facial features), we conclude that trial counsel's decision to proceed without an expert does not amount to serious incompetency. Even if we were to assume otherwise, because trial counsel aggressively challenged the identification evidence, the absence of expert testimony did not deprive the defendant of an otherwise available substantial ground of defense.
At trial, trial counsel focused on undermining the officers' identification of the defendant as the person who threw the firearm into the dumpster by suggesting that the police were biased. He began his closing remarks by stating 'You saw a number of police officers get on the stand and lie in your face, and that's the only way that I can say it.' He further remarked that Officer Tyler's identification was so weak the jury could only conclude that she was 'lying.' In addressing Officer Altavesta's testimony, trial counsel stated 'A trained Boston Housing police officer tried to get in your face with a lie.'
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As for the jury instruction, we likewise conclude that trial counsel was not seriously incompetent by declining the judge's offer to give an 'honest but mistaken' instruction where the crux of the defense strategy was to demonstrate that the police were anything but honest. The decision not to accept the offered instruction was tactical, and furthermore, because that decision was not manifestly unreasonable, a new trial is not warranted. See Commonwealth v. DeValle, 443 Mass. 782, 791 n.11 (2005). Judgment affirmed.
By the Court (Cypher, Vuono, & Rubin, JJ.),