Opinion
14-P-1234
03-03-2016
COMMONWEALTH v. GARY D. EVANS.
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
Following a jury trial in Superior Court in 1998, the defendant was convicted of aggravated rape, burglary and assault on an occupant of a dwelling, and assault by means of a dangerous weapon on a person over sixty years of age. On February 11, 2009, in a decision pursuant to rule 1:28, a panel of this court vacated the judgment and ordered the indictment on the defendant's assault conviction dismissed as duplicative, but affirmed the judgments regarding the rape and the burglary. 73 Mass. App. Ct. 1120 (2009). In 2012, the defendant, acting pro se, filed several motions including a "motion for a new probable cause to arrest hearing." That motion was denied, prompting this appeal. We affirm.
The defendant also purports to appeal from the orders denying his "motion for a new suppression of identification hearing" and his subsequent motion for reconsideration. Because the defendant has not briefed arguments on these orders, we do not consider them. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Background. Prior to trial, an evidentiary hearing was held on the defendant's motion to suppress his statements to the police. Among other things, the defendant argued that the police lacked probable cause to arrest him because the victim's identification was defective. At the hearing, Detective Moses testified that he applied for and received an arrest warrant for the defendant. The detective supported his request with the photographic array the victim used to identify the defendant, a three-page summary of the victim's recorded interview, and the statement of Michael Carter concerning the defendant's whereabouts the night of the incident. The suppression judge denied the motion to suppress. In pertinent part, he ruled that there was probable cause to arrest the defendant based on the identification of the defendant by the victim and by a victim of a similar attack in the area.
Discussion. The defendant argues that the motion judge erred in denying his motion for a new probable cause to arrest hearing. Specifically, he contends that probable cause for his arrest was lacking because the Commonwealth misled the magistrate by presenting only a summary of the victim's interview rather than the complete transcript, which the defendant claims demonstrated that the victim did not see her attacker.
We note that the defendant's brief makes only bald assertions of error unsupported by legal argument and authority. It therefore fails to rise to the level of appellate argument mandated by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Howe v. Tarvezian, 73 Mass. App. Ct. 10, 12 (2008). Nevertheless, we have examined the record and addressed the arguments that warrant discussion. Zora v. State Ethics Commn., 415 Mass. 640, 642 n.3 (1993). We decline to address his arguments regarding ineffective assistance of counsel and a claimed Brady violation, see Brady v. Maryland, 373 U.S. 83 (1963).
The defendant also argues that the detective did not present to the magistrate the statement of Marianne Nelson, who the defendant contends provided a more exact account of his whereabouts the night of the incident. The claim, not part of his motion for a new probable cause to arrest hearing, is not properly before us and we need not consider it. Commonwealth v. Stokes, 460 Mass. 311, 316 (2011).
Pursuant to an order by a single justice of the Supreme Judicial Court, we treat the defendant's motion as a rule 30 motion for new trial. See Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001). We review a motion judge's decision to allow or to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "A motion for a new trial . . . 'will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error.'" Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Tennison, 440 Mass. 553, 566 (2003).
In an order allowing the defendant's motion for writ of mandamus, a single justice of the Supreme Judicial Court ordered the assembly of the record despite the defendant's failure to file a timely notice of appeal and failure to file the motions pursuant to rule 30. That order directs that the motions be treated as rule 30 motions for new trial.
The judge's denial of the defendant's motion was neither error nor manifestly unjust. The defendant has failed to make a "substantial preliminary showing that [the detective made] a false statement knowingly and intentionally, or with reckless disregard for the truth" in order to obtain the arrest warrant. Franks v. Delaware, 438 U.S. 154, 155-156 (1978). While, contrary to the summary, the victim did not state in her interview that she was "99 percent sure" the defendant was her attacker, she did identify the defendant. See Commonwealth v. Corriveau, 396 Mass. 319, 335 (1985) (details "of so little significance in the context of the entire affidavit . . . cannot reasonably be considered to be misleading or to constitute misrepresentation"). Except for this variance, the summary significantly tracks the victim's statements. The combination of the victim's summarized statement, Carter's statement, and the photographic array sufficed to establish probable cause. See Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992) ("[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the [suspect] has committed . . . an offense'" [citation omitted]).
Even assuming, arguendo, that the arrest warrant against the defendant was improper, "[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." Commonwealth v. Jacobsen, 419 Mass. 269, 275 (1995), quoting from United States v. Crews, 445 U.S. 463, 474 (1980). "Because the defendant went to trial and was found guilty, there is no basis for a claim of prejudice resulting from a pretrial determination of probable cause [for his arrest]." Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 109-110 (2013). The motion judge did not err or abuse her broad discretion when she denied the defendant's motion for a new probable cause to arrest hearing.
Order denying motion for new probable cause to arrest hearing affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 3, 2016.