Opinion
13-P-1144
07-17-2015
COMMONWEALTH v. BRIAN D. GROMOSHAK (and nine companion cases).
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 defendants, Brian Gromoshak and Demetrio Garcia, were convicted after a joint trial of armed robbery, assault and battery by means of a dangerous weapon, breaking and entering in the daytime with intent to commit a felony, and larceny over $250. In addition, Gromoshak was convicted of two counts of intimidation of a witness. On appeal, the defendants both argue that the informal immunization of the robbery victim created a substantial risk of a miscarriage of justice and that they were denied the effective assistance of counsel in various respects. Garcia also argues that his motion in limine to suppress an out-of-court identification was erroneously denied and Gromoshak contends that certain evidence was "derivative" of evidence that had been suppressed and, as a result, should not have been admitted at trial. Finally, the defendants also claim that their convictions of larceny over $250 are duplicative of the convictions of armed robbery. Because we agree that the convictions are duplicative, we vacate the convictions of larceny over $250, and remand for resentencing on the remaining convictions. In all other respects we affirm.
The Commonwealth concedes that larceny over $250 is a lesser included offense of armed robbery. See Commonwealth v. Johnson, 379 Mass. 177, 181 (1979).
Background. We summarize the facts the jury could have found reserving certain details for our discussion of the issues. The victim, Alishan Haigazian, an amateur musician who worked various jobs and also sold marijuana, was robbed of approximately three pounds of marijuana and $7,000 by two men he identified as the defendants. Haigazian knew Gromoshak, to whom he had sold marijuana in the past, and he identified Garcia from a photographic array. During the course of the robbery, the defendants punched Haigazian and threatened to kill him -- by knife point -- if he told anyone. Haigazian testified that he was terrified, so much so, he claimed, that he did not call the police until three days later when he discovered that the tires of his car had been slashed. At this point, Haigazian explained, he became more afraid and contacted the police.
Discussion. 1. The victim's testimony. Haigazian testified at trial pursuant to an informal grant of immunity. As Haigazian described it, after speaking with the Commonwealth it was his understanding that the Commonwealth was principally interested in developing its case against the defendants and he did not "expect" to be prosecuted for having sold marijuana. The defendants argue that the Commonwealth should have requested formal immunity under G. L. c. 233, § 20E, and that the failure to do so prejudiced them because the Commonwealth was permitted to circumvent the corroboration requirement set forth in § 20I. They also claim that they were entitled to have the jury instructed on the use of immunized testimony, including the requirement of corroboration, and the fact that such testimony should be weighed with great care. See Commonwealth v. Ciampa, 406 Mass. 257, 266 (1989). Neither defendant preserved these issues by objecting to Haigazian's testimony, requesting an instruction along the lines suggested in their briefs, or making a postcharge objection to the judge's instructions. Accordingly, we review to determine whether the error, if any, created a substantial risk of a miscarriage of justice. Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 256 (2011), citing Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). There was no error.
G. L. c. 233, § 20E, sets forth the procedure for granting immunity.
G. L. c. 233, § 20I, inserted by St. 1970, ch. 408, provides that "[n]o defendant in any criminal proceeding shall be convicted solely on the testimony of, or the evidence produced by, a person granted immunity under the provisions of section twenty E."
To begin with, we are not aware of any case which obligates prosecutors to apply for formal immunity under G. L. c. 233, § 20E, nor does either defendant point us to one. While both the Commonwealth and Haigazian faced some risk in proceeding without formal immunity, the statute does not apply. See Commonwealth v. Knowlton, 50 Mass. App. Ct. 266, 270 (2000). As such, the requirement of corroboration under § 20I has no bearing in this case, as the Supreme Judicial Court made clear in Commonwealth v. Thomas, 439 Mass. 362, 371-372 (2003) ("[T]here is no constitutional requirement that the testimony of an immunized witness be corroborated, regardless of how the witness was immunized"). Next, although the judge did not specifically refer to the victim's nonprosecution agreement, he gave a lengthy and thorough instruction on credibility. In addition, the jury was aware of the informal agreement as Haigazian's testimony was subject to extensive cross-examination by defense counsel, who both questioned Haigazian on this subject. In these circumstances, the absence of an instruction on evaluating immunized testimony did not create a substantial risk of a miscarriage of justice.
In any event, there was ample evidence which corroborated Haigazian's testimony, including testimony from Timonthy Hajian, a friend of Haigazian's who arrived at Haigazian's home soon after the incident and testified, among other things, about Haigazian's state immediately after and in the days following the incident and his prior relationship with Gromoshak. Additional corroborating evidence was provided by Sandra Marshall, with whom Garcia was in a romantic relationship at the time of the incident. Marshall testified about, inter alia, the friendship between Garcia and Gromoshak and that Garcia had entrusted her with cash, which he informed her was stolen, for safekeeping.
2. Garcia's claims. a. Denial of motion to suppress identification evidence. Prior to trial, the defendants filed motions to suppress evidence, including two plastic bags of marijuana, six plastic baggies containing marijuana, a cell phone, a digital scale, one plastic bag containing three yellow pills, marijuana plants, paperwork, and $5,000 in cash, that were seized from Gromoshak's home during the execution of a search warrant. Following a nonevidentiary hearing, that motion was allowed on the ground that the affidavit upon which the search warrant was based failed to establish probable cause to search for marijuana, currency, or records. Specifically, the motion judge concluded that the affidavit failed to explain why there was probable cause to believe drugs or money would be found at the defendant's residence. Garcia then moved to suppress an out-of-court identification made by the victim from a photographic array and an anticipated in-court identification on the ground that both identifications were the fruit of the illegal search. The motion judge who was also the trial judge denied the motion. He concluded, based on uncontested facts, that the police had developed information completely independent from information which derived from the search that pointed to Garcia as a suspect and, therefore, the photographic identification was not tainted. We agree.
As the Commonwealth notes in its brief, the police had independent information that pointed to Garcia as one of the perpetrators of the crime. Indeed, both the victim and two confidential informants gave the police information which lead to Garcia's identification as a suspect. There is no support in the record from which we can conclude that there was a connection between the suppressed evidence and the confidential informant. Without such support, this claim has no merit. As such, we agree with the motion judge that the identifications were not derivative of the illegal search and, accordingly, that the motion to suppress those identifications was properly denied.
b. Ineffective assistance of counsel. Garcia also contends that he was denied effective assistance of counsel on the ground that the photographic array from which the victim identified him was unduly suggestive and therefore counsel should have moved to suppress the out-of-court identification. We review Garcia's claim under the familiar two-pronged test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where, as here, a defendant claims that counsel was ineffective for failing to file a motion to suppress, "the defendant must show that the motion to suppress would have presented a viable claim and that 'there was a reasonable possibility that the verdict would have been different without the excludable evidence.'" Commonwealth v. Segovia, 53 Mass. App. Ct. 184, 190 (2001), quoting from Commonwealth v. Pena, 31 Mass. App. Ct. 201, 205 (1991). We need not address whether a motion to suppress would have presented a viable claim (although we do not think such a motion would have succeeded) because the defendant cannot demonstrate that the verdict would have been different without the evidence in question. It suffices to note that, even if the photographic array was unduly suggestive, the victim's in-court identification was properly admitted (as already discussed, supra) thereby rendering the out-of-court identification cumulative.
Garcia's claim that counsel was ineffective for not moving to exclude incriminating testimony from his girlfriend on the basis that the police learned of the girlfriend's identity as a result of the illegal search is similarly unavailing, as the police were led to the girlfriend (to whom Garcia gave his share of the robbery proceeds for safekeeping) by a confidential informant.
We note that Gromoshak makes a similar argument that is equally untenable, and as a result requires no discussion.
3. Conclusion. The judgments on the indictments charging larceny over $250 are vacated, the verdicts are set aside, and the indictments are to be dismissed. The judgments of conviction on the remaining indictments are affirmed, but the sentences on those convictions are vacated and the matter is remanded for such sentencing as the judge deems appropriate. See Commonwealth v. Ruggerio, 32 Mass. App. Ct. 964, 966 (1992).
Typically, "[t]he appropriate remedy for the imposition of duplicative convictions is to vacate both the conviction and sentence on the lesser included offense and to affirm the conviction on the more serious offense." Commonwealth v. Johnson, 75 Mass. App. Ct. 903, 904 (2009) (citations omitted). Remanding for resentencing on the remaining convictions is an appropriate remedy, however, where (as here) the sentence for the vacated conviction runs concurrently with the sentence(s) for the affirmed convictions. See Commonwealth v. Ruggerio, supra.
So ordered.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 17, 2015.