Opinion
No. 13–P–1388.
06-20-2016
COMMONWEALTH v. David JOSSELYN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of two counts of armed robbery, G.L. c. 265, § 17, armed assault with intent to rob, G.L. c. 265, § 18(c), unlawful possession of a firearm, G.L. c. 269, § 10(a), and unlawful discharge of a firearm, G.L. c. 269, § 12E, in connection with a series of robberies committed on the morning of September 22, 1996. The convictions were affirmed by a panel of this court in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Josselyn, 56 Mass.App.Ct. 1101 (2002). The defendant's request for further appellate review was denied. See Commonwealth v. Josselyn, 439 Mass. 1102 (2003).
The defendant subsequently pleaded guilty to three indictments charging him with being a habitual career criminal. The defendant is serving life sentences on the armed robbery and habitual criminal convictions.
In 2009, the defendant filed a pro se motion for a new trial based on ineffective assistance of counsel and an alleged violation of his right to due process stemming from his claim that witnesses who testified for the Commonwealth saw him escorted to and from the court room in shackles. The motion was denied by the trial judge, as were the defendant's requests for an evidentiary hearing and appointment of counsel. The defendant did not appeal. In 2013, the defendant filed a second, nearly identical pro se motion for a new trial and again requested an evidentiary hearing. Before us is the defendant's appeal from the denial of his second new trial motion. We affirm.
Counsel was appointed to represent the defendant on appeal.
Background. The jury could have found the following facts. On the morning of September 22, 1996, the defendant purchased a candy bar at an Osco drug store in Westford and, as the cashier attempted to retrieve change from her register, he pointed a gun at her and demanded that she “give [him] the cash.” Because she had already closed the drawer, the defendant fled the store without any money.
Shortly thereafter, the defendant entered a nearby Sunoco food mart and fired his gun across the counter between two employees. He demanded money, and one of the cashiers removed the drawer from the register and set it on the counter. The defendant took the money and fled.
Later that morning, the defendant entered a Home Depot store and approached the cash register with a plexiglass cutting tool. He gave the cashier five dollars to pay for it but when the cashier opened the register to retrieve change the defendant pointed a gun at him and took all of the money. As the defendant was leaving the store, the cashier told another employee about the robbery, and that employee then followed the defendant to the parking lot and saw him drive away. The second employee recorded the vehicle's license plate number and provided it to the police. The investigation quickly led to the defendant, who was arrested the next day. The police executed a search warrant at the defendant's residence and recovered a blue baseball hat and a gun. One of the victims, the cashier from Osco, identified the hat and the gun as those used in the robbery.
All the victims of the robberies testified at trial, but only two (one Sunoco employee and one Home Depot employee) made an in-court identification of the defendant as the perpetrator, and of those two witnesses, the Sunoco employee had previously identified the defendant from a photographic array. There also was forensic evidence that inculpated the defendant. The defendant's fingerprints were recovered from the cutting tool the robber attempted to purchase at the Home Depot, and an expert ballistician testified that the bullet retrieved from the Sunoco food mart was fired from the gun removed from the defendant's home during the execution of the search warrant. The defendant's theory of the case was misidentification.
1. First motion for a new trial. In his first motion for a new trial, the defendant alleged that the Commonwealth's identification witnesses saw him in shackles, resulting in a violation of his right to due process. He also claimed that his trial counsel was ineffective for failing to raise the due process issue at trial and for failing to file a motion to sever the indictments. He further claimed his attorney was ineffective for failing (1) to highlight inconsistencies in the identification testimony in his closing argument, (2) to request that portions of the testimony be read to the jury, and (3) to adequately define the Commonwealth's burden of proof.
The motion was supported by affidavits from the defendant and his wife, who attended the trial. In his affidavit, the defendant stated that during his trial he “was escorted ... out into a lobby” and “that the witnesses were all watching the parade that was the [d]efendant in the very case in which they were to testify.” The wife's affidavit corroborated the defendant's allegation.
In denying the motion, the judge rejected both affidavits as self-serving and noted that the absence of an affidavit from trial counsel weakened the defendant's arguments. She wrote:
“This court rejects as not credible the self-serving affidavits filed by the defendant and his wife in support of the defendant's motion for a new trial.... The defendant's motion is weakened by the absence of an affidavit from the defendant's trial counsel, coupled with failure to explain its absence.... Furthermore, although the defendant and his wife claim to have themselves made the observations set forth in their affidavits, the defendant waited more than eleven years to raise the issue without explanation for the delay, substantially weakening the affiants' credibility.”
The judge added that “[n]one of the issues raised by the defendant warrant an evidentiary hearing, and none entitle the defendant to a new trial.” As we have noted, the defendant did not appeal from the denial of the motion.
2. Second motion for a new trial. In his second motion for a new trial, the defendant filed a new affidavit in which he elaborated upon his assertion that certain witnesses had seen him in shackles. The defendant now alleged that he “was paraded in front of the witnesses prior to their testimon[y] and in-court identifications for two days, four to six times per day.” He also included a copy of the docket sheet from the trial, which indicated the court room where the trial took place, and an affidavit from a private investigator who stated that she spoke with a court officer whom the defendant claims escorted him to and from the court room during his trial. The investigator stated that the court officer did not remember the defendant and did not remember a period of time in which construction and a broken elevator caused defendants to be escorted past witnesses into the court room as the defendant claimed. The investigator averred that the court officer denied the possibility that the defendant was escorted past witnesses because “the court officers would never walk an inmate through the lobby for that very reason.” In denying the second new trial motion, the judge concluded, “[n]ot only is there no reason the ‘newly disclosed’ evidence could not have been made available to the court in connection with the previously filed motion, but the alleged docket sheet cas [ts] no doubt on the justice of the conviction.”
Discussion. Before addressing the merits of the defendant's appeal, we must determine whether, as the Commonwealth argues, the principles of direct estoppel operate as a bar to litigation of the claims raised in the defendant's second new trial motion. See Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005) (defendant is barred from seeking review of claims “actually litigated” and decided against him). The defendant argues that, although his second new trial motion raises the same claims that were raised in the first motion, he is not estopped from relitigating those claims because the second motion for a new trial is based in part on newly discovered evidence. This argument is unavailing. As the trial judge correctly concluded, the supplemental evidence submitted by the defendant in support of his second new trial motion, a docket sheet and the affidavit of a private investigator, do not constitute newly discovered evidence. See Commonwealth v. Sullivan, 469 Mass. 340, 350 n.6 (2014) (“Newly discovered evidence is evidence that was unknown to the defendant or counsel and not reasonably discoverable by them at the time of trial”). Here, the defendant's second new trial motion raises issues that were actually litigated and decided against him when his first motion for a new trial was denied. The defendant did not appeal from the denial of that motion and, as a result, the doctrine of direct estoppel bars relitigation of the defendant's due process and ineffective assistance of counsel claims. See Commonwealth v. Coutu, 88 Mass.App.Ct. 686, 699 (2015). In any event, even if we were to conclude otherwise, the defendant is not entitled to a new trial for the reasons we briefly address below.
A motion for new trial lies within the sound discretion of the judge, who may grant the motion only if it appears that “justice may not have been done.” Commonwealth v. Pring–Wilson, 448 Mass. 718, 732 (2007), quoting from Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Although not required to do so in the circumstances presented, we have conducted a careful review of the record and conclude that the judge did not abuse her discretion.
The defendant claims that his due process rights were violated when he was allegedly “paraded” in front of witnesses while wearing shackles. Assuming arguendo that the incident occurred, the record does not support the conclusion that the two in-court identifications were rendered impermissibly suggestive and, therefore, the defendant is not entitled to a new trial on this ground.
The defendant's claim that he received ineffective assistance of counsel is similarly unavailing. Having already determined that the alleged due process violation does not warrant a new trial, it follows that the defendant was not deprived of a substantial defense by counsel's failure to raise the issue.
The defendant next claims that trial counsel was ineffective because he did not file a motion to sever the indictments with which he was charged. “It is not ineffective assistance of counsel when trial counsel declines to file a motion with minimal chance of success.” Commonwealth v. Bol Choeurn, 446 Mass. 510, 520 (2006), quoting from Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). Here, the motion to sever was not likely to succeed because “joinder is appropriate where the offenses ‘constitute a single line of conduct, grow out of essentially one transaction, and would be proved by substantially the same evidence.’ “ Commonwealth v. Montanez, 410 Mass. 290, 303 (1991), quoting from Commonwealth v. Gallison, 383 Mass. 659, 671 (1981). The three criminal acts, having taken place in a short span of time and essentially in the same manner, were appropriately joined and the defendant's motion to sever was unlikely to prevail.
Finally, the defendant has not alleged any shortcomings in trial counsel's closing argument that rises to the level of ineffective assistance. “With hindsight, one can always craft a more eloquent and forceful closing argument. However, ‘the guaranty of the right to counsel is not an assurance to defendants of brilliant representation or one free of mistakes.’ “ Commonwealth v. lnis, 442 Mass. 617, 627–628 (2004), quoting from Commonwealth v.. Arriaga, 438 Mass. 556, 582–583 (2003).
The defendant's remaining claims have not been overlooked. They do not require discussion. It is within the judge's sound discretion to determine whether an evidentiary hearing is necessary and that discretion was not abused here. Nor did the judge abuse her discretion in declining to appoint counsel for the defendant to represent him in his motion for a new trial. See Commonwealth v. Conceicao, supra at 262. See also Mass.R.Crim.P. 30(c)(5), as appearing in 435 Mass. 1501 (2001).
Order denying second motion for new trial affirmed.