Opinion
No. 08–P–732.
2013-05-16
COMMONWEALTH v. John J. DONOVAN.
By the Court (GREEN, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted after a ten-day jury-waived trial of a single-count indictment of making a false report of a crime to a police officer, in violation of G.L. c. 269, § 13A. After filing a notice of appeal, the defendant obtained leave to file a motion for new trial based upon a claim of ineffective assistance of counsel, which he later supplemented. Thereafter, the trial judge denied those motions, and a further motion for new trial. The defendant appeals his conviction and the denials of these motions.
We do not consider the defendant's claim on appeal that the court should grant him a new trial because the integrity of the grand jury was impaired by false and misleading testimony, as this claim was raised for the first time on appeal. See Commonwealth v.. Haas, 398 Mass. 806, 816 n. 10 (1986).
1. Sufficient evidence. The defendant claims his motion for a required finding of not guilty should have been granted because the Commonwealth failed to provide sufficient evidence as a matter of law to convict him of violating G.L. c. 269, § 13A, inserted by St.1982, c. 219. We disagree. General Laws c. 269, § 13A, requires the Commonwealth to prove a defendant intentionally and knowingly made, or caused to be made, a “false report of a crime.” See Commonwealth v. Fortuna, 80 Mass.App.Ct. 45, 52–53 (2011) (violation of statute requires that defendant make a “substantially inaccurate accounting of a crime”). While the evidence presented was circumstantial in nature, the judge was entitled to draw reasonable inferences from the evidence to support the finding that the defendant intentionally made a false report of the alleged shooting. See Commonwealth v. Beckett, 373 Mass. 329, 341 (1977) (inferences drawn from circumstantial evidence “need only be reasonable and possible, [and] need not be necessary or inescapable”). See also Commonwealth v. Deane, 458 Mass. 43, 50 (2010) (“[I]t is not essential that the inferences drawn should be the only necessary inferences”).
In the light most favorable to the Commonwealth, the evidence showed the defendant called 911 on December 16, 2005, claiming he had been shot by two masked men inside his car, but further police investigation did not corroborate this claim. The defendant's sole superficial bullet wound was consistent with him grabbing his abdomen and shooting himself such that the bullet would travel only through the outer layers of his skin without causing significant injury. The defendant claimed he had been shot multiple times at close range, but medical exams of the defendant revealed only the single wound to his abdomen.
The trial judge could infer the defendant's intent and design from the “to-do” list found in the defendant's pocket that suggested he staged the shooting. The judge could also have inferred the defendant's consciousness of guilt from his attempt to alter the surveillance cameras to prevent recording of the parking lot, from his attempts to obtain the surveillance video before police could view the tape, and from the defendant's wealth of post-report conduct that suggested inconsistencies in his story. At bottom, the evidence was more than sufficient to allow the judge to conclude, beyond a reasonable doubt, that the defendant knowingly or intentionally made a “substantially inaccurate accounting” of the crime and thus violated G.L. c. 269, § 13A. See Commonwealth v. Fortuna, supra.
2. Ineffective assistance of counsel. The defendant also appeals the judge's denial of his motions for new trial in which he claimed ineffective assistance of counsel on multiple grounds. He further maintains that the judge abused his discretion by denying the motions for new trial without an evidentiary hearing. The defendant's claims are without merit.
None of the alleged defects in counsel's representation of the defendant reflected a serious incompetency that fell below the standards of an ordinary fallible lawyer, nor did such actions deprive the defendant of an “otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In weighing each issue raised in the multiple motions, we give the judge's decision special deference because he was also the trial judge and the fact finder. Commonwealth v. Lo, 428 Mass. 45, 53–54 (1998), citing Commonwealth v. Haley, 413 Mass. 770, 773 (1992). For substantially the same reasons stated by the judge in his well-reasoned and detailed memoranda denying the motions, the defendant failed to meet his burden to prove ineffective assistance, and for those reasons, the judge did not abuse his discretion by denying the motions.
We also see no cause to disturb the judge's decision to resolve the ineffective assistance claims without an evidentiary hearing. Commonwealth v. Smith, 449 Mass. 12, 24 (2007). The judge acted well within his discretion when he determined, based upon the affidavits submitted, that the defendant made an inadequate showing with respect to each of the alleged instances of ineffective assistance of counsel. See Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). See also Commonwealth v. Denis, 442 Mass. 617, 629 (2004) (motions and supporting materials must contain “sufficient credible information to cast doubt on the issue”). The defendant points to no substantial evidence or additional testimony he would have introduced at an evidentiary hearing to supplement the affidavits reviewed by the judge that would have affected the judge's determination of counsel's ineffectiveness. Commonwealth v. DeVincent, 421 Mass. 64, 68–69 (1995). There was no abuse of discretion in denying the defendant's motions without a hearing. See ibid., citing Commonwealth v. McMaster, 21 Mass.App.Ct. 722, 735 n. 6 (1986).
Judgment affirmed.
Orders denying motions for new trial affirmed.