Opinion
14-P-660
06-17-2015
COMMONWEALTH v. JUSTIN K. GAOUETTE.
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
On February 6, 2004, a jury convicted the defendant, Justin K. Gaouette, of murder in the second degree and other related charges. On March 5, 2004, the defendant filed a notice of appeal and on June 28, 2006, this court issued a written decision affirming the defendant's convictions. Commonwealth v. Gaouette, 66 Mass. App. Ct. 633 (2006). On June 24, 2013, the defendant filed a motion for new trial on the ground of ineffective assistance of counsel, and requested an evidentiary hearing. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001) (rule 30[b]). After a nonevidentiary hearing, the motion judge denied the defendant's motion. After reviewing the defendant's timely appeal, we affirm the denial of his motion for a new trial.
His other charges include armed assault with intent to murder, assault and battery by means of a dangerous weapon, firearms offenses, and receiving stolen property.
Discussion. A lower court's decision to deny a defendant's motion for a new trial, "and thus to conclude justice was done at trial," will not be overturned unless a review of the defendant's case demonstrates that "the decision, if not reversed, will result in 'manifest injustice.'" Fogarty v. Commonwealth, 406 Mass. 103, 110 (1989) (citation omitted). In his rule 30(b) motion, the defendant alleges ineffective assistance of counsel on the basis that his trial counsel failed to (1) advise him as to the possibility of "good time" on a plea offer or (2) request a defense of another jury instruction. When evaluating a claim of ineffective assistance of counsel, the reviewing court asks "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).
1. Plea offer. In his affidavit in support of the defendant's motion, the defendant's trial counsel avers that the prosecutor at trial made an offer for the defendant to plead guilty to manslaughter with a sentence of eighteen to twenty years. Defense counsel informed the defendant of this plea offer but did not "tell him or explain to him that on a sentence of manslaughter he would be able to earn good time such that he would be parole eligible at fourteen years and eight months and that it would be possible for him to max out at sixteen years without ever having to deal with the parole board at all."
As stated above, in order to make a successful ineffective assistance claim, a defendant must satisfy both the performance and prejudice prongs of the Saferian standard. Even if we were to conclude that the defendant had met his burden in demonstrating the ineffectiveness of counsel's performance by failing to explain discretionary "earned good time," the defendant's claim would falter on the issue of prejudice. In the current case, "[h]aving to stand trial, not choosing to waive it, is the prejudice alleged." Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). Yet, the motion judge did not "credit Gaouette's self-serving affidavit that he would have accepted the plea offer had he known of the availability of good time credits." Rather, the motion judge concluded that it appeared that the defendant proceeded "to trial based on a belief that the shooting was justified in self-defense." The judge further found that the defendant's claim that he would have taken the plea was "undermined by the fact that he inexplicably waited eight years to raise the issue." Additionally, he noted that once in prison, the defendant would have undoubtedly learned of good time jail credits. It is axiomatic that "the judge may decide a rule 30(b) motion based solely on affidavits; may discredit untrustworthy affidavits; and need only proceed to evidentiary hearing where a substantial issue is raised [by the motion or affidavits] and is supported by a substantial evidentiary showing." Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) (citation omitted). Therefore, we affirm the motion judge's decision as the defendant has failed to meet his burden on the prejudice prong of the Saferian standard.
We note that the Massachusetts "truth in sentencing" law, St. 1993, c. 432, §§ 10 & 21, applicable to crimes committed after June 30, 1994, eliminated statutory good time credits granted pursuant to G. L. c. 127, § 129, for all State and county sentences. Neither party, nor the judge addressed this issue.
2. Defense of another jury instruction. As originally stated in Commonwealth v. Martin, 369 Mass. 640, 649 (1976), "[a]n actor is justified in using force against another to protect a third person when (a) a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself." Though the parties agree that the defendant was entitled to a defense of another jury instruction, the defendant's trial counsel failed to request such an instruction. In his affidavit, trial counsel stated that this failure was not a strategic decision. As such, our Saferian analysis is again focused on whether the defendant has demonstrated adequate prejudice due to the ineffectiveness of his counsel.
In the instant case, the jury were properly instructed on self-defense as a complete justification for the shooting and on the use of excessive force in self-defense, which reduces murder to voluntary manslaughter. As the motion judge determined, "[a]s the jury failed to view the defendant's actions as justifiable for his own defense, there is no basis to conclude that the jury would have considered those same actions justified when undertaken for the defense of another in the same circumstances." Commonwealth v. Green, 55 Mass. App. Ct. 376, 381 & n.7 (2002). The motion judge further emphasized that under the facts of this case, it is unlikely that the jury rejected self-defense on the basis of the requirement to retreat where the confrontation was prearranged, the defendant arrived at the confrontation armed with a gun, and the victim and his brothers quickly converged on the car in which the defendant and his girl friend were sitting, leaving the defendant little or no opportunity for retreat once the confrontation he demanded began. Thus, we conclude that the defendant has failed to demonstrate prejudice stemming from the lack of a defense of another instruction.
Conclusion. For the above stated reasons, we affirm the order, entered March 7, 2014, denying the defendant's motion for new trial.
So ordered.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: June 17, 2015.