Opinion
12-P-1607
05-22-2015
COMMONWEALTH v. SHAWN DUNCAN.
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 is not a citizen of the United States and is currently facing deportation, among other immigration consequences, as a result of his conviction of distribution of cocaine in violation of G. L. c. 94C, § 32A(a). He filed a motion for a new trial alleging ineffective assistance of counsel based on his lawyer's failure to (1) advise him of all immigration consequences of a conviction with sufficient particularity, (2) explore a plea resolution that might have avoided immigration consequences, and (3) pursue a defense strategy based on the alleged inadequacy of the investigation which led to his arrest. He also argues that trial counsel should not have stipulated to the admission of a certificate of analysis establishing the weight and chemical composition of the cocaine.
The defendant was convicted following a jury trial in the District Court. He was also charged, in two separate complaints, with two counts of possession with intent to distribute a class B substance and two counts of conspiracy to violate drug laws. Nolle prosequi was filed as to all of those charges and they are not before us.
The motion judge, who was also the trial judge, held an evidentiary hearing at which the defendant and Lieutenant Jerry Adams of the Nantucket police department testified. Trial counsel attended the hearing and was available to be called as a witness but neither party put him on the stand. Instead, by agreement of the parties, the judge considered counsel's affidavit in lieu of his testimony. Following the hearing, the judge issued a written memorandum of decision in which he denied the new trial motion. The judge concluded that "[t]he defendant was convicted after a fair trial with competent counsel" and that "[a]t all times the parties were aware of the defendant's immigration issues." He observed that trial counsel's efforts on behalf of the defendant were in fact successful insofar as they resulted in the entry of a nolle prosequi on similar offenses charged in two separate complaints. A conviction on either one of those charges also would have had severe immigration consequences.
The judge also found that while the defendant was interested in a plea to a reduced charge, the Commonwealth was not, and that trial counsel's stipulation to the drug certificate "was not a last minute decision but one made as part of a conscious defense strategy." Finally, while the judge did not explicitly address the defendant's assertion that trial counsel provided ineffective assistance in failing to pursue a defense based on inadequate police investigation, it is apparent from the judge's characterization of trial counsel's performance that he rejected this ground as a basis for a new trial as well.
We review the denial of a motion for new trial for abuse of discretion. See Commonwealth v. Marinho, 464 Mass. 115, 123 (2013) (Marinho). The defendant has the burden of proof. Ibid. Where, as here, the defendant seeks a new trial on the ground of ineffective assistance of counsel the defendant is required to show that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer," and that, as a result of the deficient performance, the defendant likely was deprived of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We conclude that, as to each of the defendant's claims, he has not met his burden under Saferian, and therefore the judge did not abuse his discretion in denying the defendant's motion for new trial. Although we are not persuaded that the defendant has shown that counsel's performance was deficient in any respect, we reach our conclusion on the ground that the defendant failed to show that counsel's allegedly poor performance deprived him of an otherwise available, substantial defense. Put another way, the defendant has failed to show that he was prejudiced by counsel's performance. See Marinho, 464 Mass. at 123, 128-129.
1. Failure to advise the defendant of all potential immigration consequences of conviction. The defendant claims that counsel informed him that there would be no immigration consequences if he received a sentence of less than 365 days. At the hearing on his motion for new trial the defendant testified that counsel "told me if I get 306 -- anything less than 365 days, Immigration cannot -- you know, they can't do nothing to me." The defendant also points to the fact that trial counsel requested a sentence of 364 days and posits that the only reason to do so would have been to avoid immigration consequences. The judge, however, was entitled to reject the defendant's claims. See Commonwealth v. Coffman, 84 Mass. App. Ct. 33, 38 (2013). That he did so here is not surprising given that the judge noted at the sentencing hearing that the defendant's conviction would "certainly" have immigration consequences.
2. Failure to explore a plea resolution. To meet his burden of showing prejudice on account of counsel's alleged failure to negotiate a plea, "the defendant must show a reasonable probability that the result of a plea would have been more favorable than the outcome of the trial. In particular, the defendant must demonstrate a reasonable probability that the prosecution would have made an offer, that the defendant would have accepted it, and that the court would have approved it." Marinho, 464 Mass. at 129 (citations omitted). Here, the defendant's claim fails because there is no evidence that the Commonwealth would have made an offer of a plea, much less one that would have avoided any immigration consequences. Indeed, Lieutenant Adams testified that the prosecution was aware of the defendant's status and that while counsel attempted to negotiate a plea that would keep the defendant in the country, at no time was the Commonwealth willing to reduce the charge. In sum, the absence of any evidence that the prosecutor would have offered a favorable plea bargain is fatal to the defendant's claim.
3. Counsel's stipulation to the admissibility of the drug certificate. The defendant's claim that he was prejudiced by counsel's stipulation to the admission of the drug certificate, thereby waiving his right to confront the chemist who prepared the certificate, is unavailing. We agree with the judge that declining to confront the chemist was a reasonable tactical decision in that it avoided drawing attention to the fact that the substance was cocaine and instead focused attention on the defense strategy, which was to establish that the undercover officer lacked credibility and harbored a personal bias towards the defendant. In any event, the defendant has not presented any basis upon which the validity of the chemical analysis of the cocaine could be challenged.
4. Failure to challenge the investigation. The defendant's final claim is that counsel should have pursued a defense strategy based on "insufficient police investigation." He contends that had counsel solicited testimony regarding "the typical procedures" relating to drug examinations and the "usual details of a controlled buy," such questioning would have persuaded the judge to give the jury a so-called Bowden instruction, which counsel had requested. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). We are not persuaded. While the defendant alleges personal biases on the part of the undercover officer, he does not point to any specific shortcomings in the investigation itself. In sum, the success of a trial strategy based on poor police work is based on speculation and therefore fails to meet the test under Saferian. See Marinho, 464 Mass. at 129.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 22, 2015.