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Commonwealth v. Humphries

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 23, 2012
11-P-536 (Mass. Apr. 23, 2012)

Opinion

11-P-536

04-23-2012

COMMONWEALTH v. DELANIE HUMPHRIES.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this appeal from his convictions and from the denial of his new trial motion, the defendant contends that (1) the motion judge erred in denying his claim that newly discovered evidence casts doubt on the justice of the convictions, (2) his trial attorney rendered ineffective assistance of counsel, (3) his firearm convictions must be reversed because the Commonwealth failed to prove that his coventurer (Rashayn Holley) lacked lawful authority to carry the firearm and the ammunition, (4) the failure to provide supplemental jury instructions regarding the definition of a firearm was an error that gives rise to a substantial risk of a miscarriage of justice, and (5) certain statements in the prosecutor's closing argument require reversal. We affirm.

1. New trial motion. We agree substantially with the thoughtful and well-reasoned memorandum of the motion judge, who was also the trial judge, that the defendant failed to establish that the evidence underlying his new trial motion was newly discovered, material, and credible so as to cast real doubt on the justice of the defendant's convictions. See Commonwealth v. Pike, 431 Mass. 212, 218 (2000). We agree with the judge that the defendant's submissions failed utterly to establish that the evidence relied upon was unknown to the defendant or his counsel, and not discoverable through reasonable pretrial diligence.

Even were that not so, the judge did not err in concluding that the documentation was uncorroborated, of dubious origin and accuracy, likely inadmissible, and did not cast doubt on the justice of the defendant's convictions. See Commonwealth v. Weichell, 446 Mass. 785, 798-799 (2006). Nor was the claimed evidence weighty, credible, and pertinent to fundamental issues in the case. See Commonwealth v. Brown, 378 Mass. 165, 171 (1979). We discern no error in the judge's assessment that the 'critical evidence against the defendant was the testimony of Shoante Bottom . . . and [Julio Fuentes] who testified without equivocation that he had witnessed the event from an unobstructed vantage on his front porch.'

2. Ineffective assistance of counsel. We reject the defendant's contention, made for the first time on direct appeal, that his trial counsel was ineffective in failing to discover the so-called 'newly discovered' evidence prior to trial. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) (ineffective assistance claim made on trial record alone is weakest form of such challenge because it is bereft of explanation for trial counsel's actions and suggestive of strategy contrived in hindsight). Even were we to assume that, on a more developed record, the defendant would be able to establish that his counsel actually failed to discover the evidence, and that the failure to do so was manifestly unreasonable, the defendant's claim would fail for a more fundamental reason: given the eyewitness testimony of Bottom and Fuentes, the claimed evidence did not deprive the defendant of an available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Commonwealth v. Hudson, 446 Mass. 709, 725 (2006). Moreover, as noted by the judge, trial counsel pursued a considered strategy of keeping the evidence narrowly focused on the night of the shooting without the distractions or potential prejudice that might arise were the jury to be made aware of criminal activity occurring before or after that evening. See Commonwealth v. Glover, 459 Mass. 836, 843 (2011).

3. Evidence regarding Holley's lawful authority to carry firearm and ammunition. There is no merit to the contention that the defendant was denied due process of law because the Commonwealth did not produce evidence that Holley lacked lawful authority to carry the firearm and the ammunition used in the shooting. A defendant may be convicted as a joint venturer in a firearm offense so long as 'the elements of a joint venture are met and there is sufficient evidence to support a conclusion that the defendant knew his joint venturer was armed.' Commonwealth v. Gonzalez, 68 Mass. App. Ct. 91, 93 (2007). See Commonwealth v. Powell, 459 Mass. 572, 582 (2011).

4. Lack of supplemental jury instruction. No substantial risk of a miscarriage of justice arises from the judge's failure to include a supplemental jury instruction invoking the language of G. L. c. 140, § 121. Even had counsel requested such an instruction, which he did not, such an instruction was not warranted on the evidence presented at trial. Absent any basis in the evidence for concluding that the weapon fired by Holley was a covert weapon that resembled a key chain, pen, cigarette lighter, cigarette package, or other weapon described in that statute, the failure to give such an instruction is not error. See Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 461 (2004) (error is prerequisite to substantial risk analysis).

5. Prosecutor's closing argument. For substantially the reasons set forth in the Commonwealth's brief at pages 44 through 49, the unobjected-to statements in the prosecutor's closing argument did not misstate the evidence, unfairly invoke juror sympathy, or mislead the jury.

Judgments affirmed.

Order denying motion for new trial affirmed.

By the Court (Grasso, Mills & Trainor, JJ.),


Summaries of

Commonwealth v. Humphries

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 23, 2012
11-P-536 (Mass. Apr. 23, 2012)
Case details for

Commonwealth v. Humphries

Case Details

Full title:COMMONWEALTH v. DELANIE HUMPHRIES.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 23, 2012

Citations

11-P-536 (Mass. Apr. 23, 2012)