Opinion
No. 95-0350.
June 30, 2009.
INTRODUCTION
The defendant, Jack Marcelini (Marcelini), moves for release from unlawful restraint or a new trial pursuant to Mass. R. Crim. P. 30 (a) and (b) claiming ineffective assistance of counsel. Because Mr. Marcelini has failed to raise a substantial issue that his counsel's behavior was measurably below that which might be expected from an ordinary fallible lawyer so as to deprive him of an otherwise available, substantial ground of defense, where DNA testing on his pants would have been of marginal importance at his trial given the evidence against him, and where the other claims have already been decided adversely to Mr. Marcelini by the Appeals Court, Mr. Marcelini's motion for release from unlawful restraint or a new trial is denied without a hearing, as is his motion for post-conviction discovery and for appointment of counsel.
BACKGROUND
On May 28, 1996, a jury found Mr. Marcelini guilty of several charges stemming from his role in two home invasions that caused the death of a seven year old child, Eva Rojas (Eva), and resulted in injuries to the third floor apartment occupants, Delia Diaz (mother of Eva) (Ms. Diaz) and Victor Rojas (father of Eva) (Mr. Rojas), and the first floor apartment occupant, Felix Rojas, on September 11, 1994.
At the trial, Mr. Rojas testified that three assailants invaded his third floor apartment, and bound, gagged and beat him with a bat. He also testified that they tied up and gagged his girlfriend, Mr. Diaz, and their daughter, Eva. Eva died from suffocation as a result of the assailants' taping her mouth shut. Victor Rojas recognized the voice of one of the assailants to be that of Mr. Marcelini, who lived on the second floor of the building right below him. Mr. Marcelini's girlfriend, Felicia Blidgen, testified that she had heard Mr. Marcelini and others planning the robbery of the building, and heard Mr. Marcelini discussing the plan again on the day of the home invasions, September 11, 1994. Other evidence suggested that Mr. Marcelini not only participated in both the first and third floor apartment invasions, but played an integral part in the planning of the home invasion, acting as a leader of the joint venture to rob the two apartments. There was evidence that Mr. Marcelini provided the other assailants with access to the building, and suggested that Mr. Marcelini was the person who shot the occupant of the first floor apartment, Mr. Rojas, multiple times.
Evidence of human blood was found on the pants Mr. Marcelini wore the night of the home invasions. Mr. Marcelini testified that his dogs got into a fight, and rubbed up against him while police interviewed him on the night of the home invasions. He explained that the blood on his pants was from his dogs' wounds from the dog fight. Mr. Marcelini's trial attorney cross examined the chemist who tested the blood stains and had opined that the stain was human blood. Through cross-examination, counsel established that the chemist did not test for the presence of canine blood, because she was not instructed to do so by police. She testified that she did not determine the exact source of the human blood because the testing would have been exhaustive and used too much of the sample. The chemist also testified that the blood stain was not consistent with being rubbed on Mr. Marcelini's pants, but was the result of a medium velocity impact splatter that could only be caused by force.
Mr. Marcelini was found guilty of the involuntary manslaughter of Eva; armed assault in a dwelling; three counts of burglary; four counts of stealing by confining or putting in fear; and three counts of assault and battery with a dangerous weapon. The court (Botsford, J.) sentenced Mr. Marcelini to not more than twenty years and not less than thirteen years four months on the involuntary manslaughter charge, and imposed concurrent sentences for his other convictions relative to the home invasion of the third floor apartment. The court imposed a consecutive sentence, to run on or after, of not more than eighteen years and not less than twelve years for the charges of armed assault of Felix Rojas and for stealing by confining or putting Felix Rojas in fear, reasoning that the invasion of the first floor apartment was a distinct and separate criminal episode from the invasion of the third floor apartment.
On April 2, 1999, the court (Botsford, J.) denied Mr. Marcelini's motion for a new trial on the grounds of newly discovered evidence and the prosecution's failure to disclose exculpatory evidence. The court also rejected Mr. Marcelini's contention that the imposition of separate sentences for involuntary manslaughter and armed assault and stealing by confining or putting Felix Rojas in fear violated his federal and state constitutional rights.
On April 17, 2001, the Appeals Court decided Mr. Marcelini's appeal, vacating the judgments of conviction of two of the three burglary charges as duplicative of his conviction on the first charge of burglary, and affirming the other judgments of conviction. The Appeals Court upheld various decisions of the trial judge, including her denial of defense counsel's request to conduct the voir dire of prospective jurors; her refusal to give the defendant permission to attend the view; her rulings on several evidentiary matters; and her denial of the defendant's motion for a new trial. The Appeals Court also upheld the judge's decision not to give a Bowden instruction, and emphasized that there was no evidence in the record to indicate that the judge precluded defense counsel from arguing to the jury that favorable inferences could be drawn from the police's failure to conduct tests on the blood to determine if it was from a dog or dogs. The Court noted that even if the blood found on the defendant's pants was of canine origin, that finding would not have mitigated the chemist's finding of human blood on the pants. The Appeals Court rejected Mr. Marcelini's contention that the trial judge erred in imposing consecutive sentences, and ruled that she properly considered the offenses relative to the third floor apartment invasion as independent of the defendant's conviction of involuntary manslaughter. Mr. Marcelini now moves for a new trial or release from incarceration on the grounds of ineffective assistance of counsel, post-conviction discovery, appointment of counsel, and preservation of evidence.
DISCUSSION
THE STANDARD
A person who is imprisoned may at any time request the trial judge to release him or to correct the sentence being served, or request a new trial if justice has not been served. Mass. R. Crim. P. 30 (a), (b). A judge may rule on a motion for a new trial without a hearing if "no substantial issue is raised by the motion or affidavits." Commonwealth v. Wallis, 440 Mass. 589, 596 (2003), quoting Mass. R. Crim. P. 30 (c)(3). Whether a motion for a new trial requires an evidentiary hearing is left "to the sound discretion of the trial judge," Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995), and the defendant "must make a sufficient factual showing to warrant a hearing." Commonwealth v. Raymond, 450 Mass. 729, 733-734 (2008), citing Commonwealth v. Britto, 433 Mass. 596, 608 (2001).
In determining whether a substantial issue is raised by the motion and affidavits, the court looks to the seriousness of the issue and the adequacy of the defendant's factual showing on the issue. Commonwealth v. Denis, 442 Mass. 617, 629 (2004), citing Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). A claim of ineffective assistance of counsel qualifies as a serious issue "of constitutional importance." Id., citing Commonwealth v. Licata, 412 Mass. 654, 661 (1992). The court's focus is whether Mr. Marcelini has made a sufficient factual showing of the ineffective assistance of his counsel to warrant an evidentiary hearing. Id. (defendant made inadequate showing where he failed to identify which witness should have been interviewed and how additional investigation would have benefitted his defense). Materials "filed by a defendant need not prove the issue raised therein," but "must at least contain sufficient credible information to cast doubt" on the attorney's performance. Id.; see also Commonwealth v. Smith, 449 Mass. 12, 24 (2007) (deferring to discretion of trial judge not to hold hearing on ineffective assistance claim where defendant's affidavit contained only self serving assertions).
MR. MARCELINI'S CLAIMS
Mr. Marcelini maintains that his attorney failed to conduct independent DNA tests on the pants he wore on the night of the crimes, and failed to argue on appeal that the trial judge misstated facts in imposing consecutive sentences for the involuntary manslaughter charge and armed assault and stealing by confining charges. To prevail on his ineffective assistance of counsel claim, Mr. Marcelini bears the burden of establishing "more than mere error or mistake on the part of counsel. Rather, a defendant must demonstrate a `serious incompetency, inefficiency, or inattention of counsel-behavior 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. Egardo, 426 Mass. 48, 52 (1997), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Courts have interpreted "an otherwise available, substantial ground of defense" to require a "showing that better work might have accomplished something material for the defense." Id., quoting Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Where a defendant challenges tactical decisions of his counsel, he must demonstrate that the decision was "manifestly unreasonable." Commonwealth v. White, 409 Mass. 266, 273 (1991), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
THE BLOODY PANTS
As to his first contention that his attorney was ineffective for failing to conduct independent DNA tests on his pants, Mr. Marcelini argues that the tests would have revealed dog blood, not human blood. On Mr. Marcelini's direct appeal, however, the Appeals Court stated in the context of upholding the trial judge's decision not to issue a Bowden instruction, that "even if the tests had proved affirmative for canine blood, it would not have mitigated the chemist's finding of human blood on the defendant's pants." Commonwealth v. Marcelini, 51 Mass. App. Ct. 1006 (2001). As to Mr. Marcelini's contention that his counsel was ineffective in failing to test the pants, the issue has essentially been ruled on by the Appeals Court; Mr. Marcelini does not raise a substantial issue that his counsel's failure to independently test the pants for canine blood fell below the standard of an ordinary fallible attorney, and that the testing "might have accomplished something material for the defense." Satterfield, 373 Mass. at 115. To the extent that the issue is open to decision by this court, this court agrees; Mr. Marcelini's theory that his counsel was ineffective because he failed to test for canine blood is unpersuasive, and an evidentiary hearing on the issue would be futile. Goodreau, 442 Mass. at 348-349 ("If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing . . . will accomplish nothing.").
Mr. Marcelini also contends that his attorney erred in his failure to independently test the pants to identify whether the human blood found was that of the victims'. On the issue of whether Mr. Marcelini's trial counsel rendered ineffective assistance, the court has the motion itself, a letter dated August 10, 1999 from Mr. Marcelini to his attorney, and an excerpt of defense counsel's direct examination of Mr. Marcelini and cross-examination of the DNA chemist at trial. Mr. Marcelini's statements in the motion are not sworn, not signed under the pains of perjury, are self-serving, and are insufficient to raise a substantial issue and warrant an evidentiary hearing on the motion. Commonwealth v. Scoggins, 439 Mass. 571, 578 (2003) (defendant's self-serving assertions not enough to establish substantial issue); see also Commonwealth v. Rebello, 450 Mass. 118, 130 (2007) (motion judge has the right to discount defendant's statement as self-serving and deny motion for new trial without hearing); Commonwealth v. Alvarez, 62 Mass. App. Ct. 866, 870, rev. denied, 443 Mass. 1106 (2005) (finding no substantial issue raised where court only had the defendant's self-serving statements regarding trial counsel's strategy and no affidavit from trial counsel).
The absence of an affidavit from Mr. Marcelini's trial counsel outlining his strategy for not independently conducting tests on the pants is telling, and the court is left only with defendant's unsupported assertions. See Commonwealth v. Lynch, 439 Mass. 532, 539 n. 2, cert. denied, 540 U.S. 1059 (2003) ("it [is] significant that no affidavit from trial counsel was submitted in connection" with the motion for a new trial); Alvarez, 62 Mass. App. Ct. at 870; Commonwealth v. Vasquez, 55 Mass. App. Ct. 523, 533 (2002) ("Conspicuously absent in these circumstances is an affidavit from defense trial counsel."); Commonwealth v. Savage, 51 Mass. App. Ct. 500, 505 n. 6 (2001) (same).
Defense counsel's direct examination of Mr. Marcelini and cross examination of the chemist who conducted the DNA testing reveal, to some extent, his strategy in addressing the prosecution's failure to conduct testing on the pants to determine the exact source of the human blood. During direct examination of Mr. Marcelini, his attorney established that Mr. Marcelini's dogs got into a fight, and rubbed blood on his pants. During cross examination of the DNA chemist, counsel established that the chemist did not run tests for the presence of canine blood or the exact source of the human blood. When he probed as to why the chemist did not conduct testing to identify the exact source of human blood, the chemist explained that testing would have been exhaustive and would have used up too much of the sample.
Defense counsel's cross examination of the chemist shows that his strategy was, at least in part, to attack the quality of the prosecution's investigation and testing of the DNA evidence. Defense counsel's strategy "not to challenge the Commonwealth's DNA evidence was not manifestly unreasonable," and Mr. Marcelini has not demonstrated how independent testing of the pants would have "aided the defense beyond what defense counsel was able to accomplish through cross-examination." Commonwealth v. Morgan, 453 Mass. 54, 64 (2009) (affirming judge's decision not to hold evidentiary hearing where defendant did not demonstrate that counsel's failure to challenge prosecution's DNA evidence was unreasonable). Mr. Marcelini does not raise a substantial issue that his counsel's failure to test for the exact source of blood fell below the standards of an ordinary fallible lawyer.
The court recognizes that DNA testing was far less prevalent at the time of Mr. Marcelini's trial in 1996.
Even if a DNA test were to reveal that the blood on Mr. Marcelini's pants was not the victims', Mr. Marcelini has not demonstrated that this would have been material to his defense in light of the ample other evidence presented at trial. Cf. Commonwealth v. Conley, 43 Mass. App. Ct. 385, 395 (1997) (where government's entire case depended on victims' testimony, DNA tests revealing presence of defendant and victims' blood on knife would have destroyed victim's testimony and simultaneously destroyed government's case). There was testimony that Mr. Marcelini was a leader of the joint venture, participated in the planning of the home invasions, and likely was the joint venturer who shot Felix Rojas. Victor Rojas identified Mr. Marcelini as one of the assailants who broke into his third floor apartment, placing Mr. Marcelini at the scene. Mr. Marcelini has not demonstrated that test results revealing that the blood was not the victims' would have made a difference in the jury's deliberations in light of the other overwhelming evidence presented at trial.
There is no credible information casting doubt on defense counsel's decision not to conduct independent testing on the pants. Denis, 442 Mass. at 629 (citations omitted). The adequacy of Mr. Marcelini's factual showing that his counsel's failure to identify the exact source of blood on his pants amounted to ineffective assistance of counsel is "meager," and does not raise a substantial issue so as to require a hearing. Savage, 51 Mass. App. Ct. at 505.
THE CLAIM OF FAILURE TO ARGUE THE JUDGE'S "MISSTATEMENTS"
As to Mr. Marcelini's second argument that his appellate counsel was ineffective, Mr. Marcelini has made no factual showing that the trial judge "misstated facts" in her order denying a new trial and memorandum of sentencing, or that the failure to argue on appeal that the judge "misstated facts" was a serious incompetency of his counsel, depriving him of an otherwise available, substantial ground of defense. The Appeals Court addressed Mr. Marcelini's contention that the trial judge erred in imposing consecutive sentences for the involuntary manslaughter charge, and the armed assault and stealing by confining or putting Felix Rojas in fear charges. Commonwealth v. Marcelini, 51 Mass. App. Ct. 1006 (2001). Mr. Marcelini has made no credible factual showing, by affidavit or otherwise, to cast doubt on the propriety of his appellate counsel's failure to dispute the trial judge's findings of fact. Denis, 442 Mass. at 629 (citations omitted); Fogarty v. Commonwealth, 406 Mass. 103, 111 (1989) (rejecting ineffective assistance of counsel claim and upholding denial of evidentiary hearing where defendant presented claim lacking factual foundation). He has made "no showing that he was denied the effective assistance of counsel under the appropriate standards," and has not demonstrated that his counsel's tactical judgment not to object to the trial judge's finding of facts was manifestly unreasonable. DeVincent, 421 Mass. at 67-68.
Even if Mr. Marcelini demonstrated that his counsel's decision was manifestly unreasonable, which this court finds he has not, there is no indication that his argument would have influenced the Appeals Court's decision to affirm the consecutive sentences. The Appeals Court upheld the consecutive sentences because the offenses, contrary to Mr. Marcelini's assertions, were independent and distinct, and were not predicate felonies for the indictment charging him with murder on which he was found guilty of involuntary manslaughter. The erroneous findings alleged by Mr. Marcelini would not alter the state of the evidence; that the involuntary manslaughter offense and the armed assault and stealing by confining or putting one in fear offenses occurred in different apartments, and represented distinct criminal episodes. The Appeals Court upheld the consecutive sentences on this basis, and Mr. Marcelini's unsubstantiated speculations fail to demonstrate that better work on the part of his counsel (if such were possible) would have been material to their decision. Satterfield, 373 Mass. at 115.
Self-serving statements by Mr. Marcelini, notably not asserted by affidavit, are insufficient, on their own, to raise a substantial issue to warrant an evidentiary hearing. Scoggins, 439 Mass. at 578 (self-serving assertions not enough to establish substantial issue). Mr. Marcelini's motion for a new trial on the basis of ineffective assistance of appellate counsel, filed eight years after his appeal and unaccompanied by affidavits or other credible information in support of his claim, falls short in raising a substantial issue as to whether his counsel rendered ineffective assistance on appeal to warrant an evidentiary hearing. Commonwealth v. Glacken, 451 Mass. 163, 170 (2008) (Trial judge properly rejected defendant's assertions, seven years after his conviction, as late and self-serving).
Mr. Marcelini's motions for post-conviction discovery and appointment of counsel will be denied. Mass. R. Crim. P. 30 (c)(4); Mass. R. Crim. P. 30(c)(5). As to his motion for discovery, Mr. Marcelini has failed to submit an affidavit in support of his motion for discovery as required by Mass. R. Crim. Pro. 30(c)(4), and does not make a prima facie showing that the discovery "is reasonably likely to uncover evidence that might warrant granting a new trial." Commonwealth v. Daniel, 445 Mass. 392, 407 (2005). It is within the court's discretion to appoint counsel, and it declines to do so here where the motion does not raise a colorable claim. Commonwealth v. Conceicao, 388 Mass. 255, 261-262 (1983) (discussing judge's discretion in appointing counsel). Given that counsel's independent testing of Mr. Marcelini's pants and objection on appeal to the trial judge's findings would not have made a difference or accomplished something material for the defense, "the issues presented by the defendant [are] not . . . of such complexity or difficulty that counsel is necessary." Id.
The document entitled "Affidavit of Jack Mr. Marcelini, Pro Se Pursuant to Rule 30 (c)(4) Discovery Subdivision (c) (3)," unaccompanied by a discovery motion and attached as an exhibit to his motion for a new trial, does not qualify as an affidavit for the purposes of this rule. Mr. Marcelini did not sign the affidavit under the pains and penalties of perjury, and it does not qualify as a sworn affidavit submitted pursuant to Mass. R. Crim. P. 30(c). See Commonwealth v. Francis, 432 Mass. 353, 372 n. 16 (2000) (upholding trial judge's decision to discredit witness's written statement as an "affidavit" in motion for new trial where it was not signed under pains and penalties of perjury).
As to the motion for preservation of evidence, the Commonwealth will be required to report on whether any such items still exist.
ORDER
The defendant Jack Marcelini's motions for a new trial and release from unlawful restraint (paper #66), post-conviction discovery (see unnumbered "Affidavit of Jack Marcelini, Pro Se Pursuant to Rule 30(c)(4) Discovery Subdivision (c)(3)") and appointment of counsel (paper #65) are DENIED.
As to the defendant Jack Marcelini's motion to preserve evidence (paper #64) the Commonwealth is ORDERED to submit a written report to the court as to whether any items responsive to the motion still exist and, if it wishes, its position on the motion, all within thirty days. The Commonwealth shall serve the defendant with a copy of the report and any other filings.