Opinion
14-P-120
02-17-2017
COMMONWEALTH v. Rafael MCKNIGHT-GOMES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following an eight-day jury trial in the Superior Court, the defendant was convicted of home invasion. The defendant's motion for new trial and subsequent motion for reconsideration were both denied. The defendant appeals from his conviction and from the orders denying his motions for new trial and reconsideration. He contends that the prosecutor's closing argument was improper, exculpatory evidence was withheld, his trial counsel was constitutionally ineffective, and there were multiple errors pertaining to jury instructions and eyewitness identifications. We discern no cause to disturb the judgment or the orders; accordingly, we affirm, addressing the defendant's claims in turn.
1. Joint venture . The defendant argues that the trial judge erred when giving the joint venture instruction because he did not specifically require the jury to find either that the defendant was armed or that he knew his coventurers were armed. The defendant did not object to the instruction at trial; we accordingly review the defendant's claim for a substantial risk of a miscarriage of justice. See Commonwealth v. Bolling , 462 Mass. 440, 452 (2012) ; Commonwealth v. Britt , 465 Mass. 87, 99 n.10 (2013).
In this case, the defendant's theory of defense at trial was misidentification. The defendant did not contend that an armed home invasion did not occur or challenge the description of the invasion furnished by the prosecution witnesses. Accordingly, (assuming that the defendant was correctly identified as a participant in the incident) the defendant's knowledge of the weapon was not a live issue at trial. Moreover, there was ample evidence to establish that the defendant had a gun or knew that his coventurers had guns.
The jury could have reasonably found that the defendant acted as a principal in the joint venture of home invasion by crediting the testimony of witnesses who placed the defendant at the scene and saw him enter the living room holding a gun. The jury also heard testimony that the coventurers were prompted to return to the party, brandishing guns and wearing masks, after learning that a friend was assaulted; three out of the five coventurers had weapons; and, immediately before the coventurers entered the apartment, one coventurer leaned toward the defendant and immediately afterwards brandished a gun inches from the defendant, indicating that the defendant either had the gun first or was so near the coventurer's gun as to assure his knowledge of it. In such circumstances, we are satisfied that the judge's failure to instruct the jury on knowledge of a weapon did not mislead the jury; the issue was not contested and there was ample evidence for the Commonwealth to have met its burden on this element. As such, the omission did not create a substantial risk of a miscarriage of justice.
2. Defense witness . The defendant contends that the trial judge abused his discretion by refusing to allow a proposed defense expert witness to testify on eyewitness identification. "[E]xpert testimony concerning the reliability of eyewitness identification is not admissible as of right, but is left to the discretion of the trial judge." Commonwealth v. Watson , 455 Mass. 246, 257 (2009). The admissibility of this type of expert testimony depends on the circumstances of the witness's identification, see Commonwealth v. Santoli , 424 Mass. 837, 844 (1997), and whether the identification is corroborated by other evidence. See Commonwealth v. Bly , 448 Mass. 473, 495 (2007). In the present case, there were multiple eyewitnesses who had met the defendant before the home invasion, and at least one eyewitness who had known the defendant since they were approximately four years old. The trial judge did not abuse his discretion in excluding the testimony of the expert witness, as this was "not a case in which there was a single eyewitness and little or no evidence to corroborate the identification." Commonwealth v. DiBenedetto , 427 Mass. 414, 420 (1998).
3. Police testimony . The defendant contends that reversal is required because the Commonwealth did not produce Detective Derby's notes from the photographic arrays, Detective Derby's testimony was inconsistent with that of the other witnesses, and Detective Derby's testimony about out-of-court identifications was hearsay. This claim is meritless.
There was no error as Detective Derby's observations and the results from the photographic arrays were relayed to Detective Foley and incorporated into his comprehensive police report, which was turned over to the defendant. See Commonwealth v. Schand , 420 Mass. 783, 789-790 (1995) ; Commonwealth v. Collazo , 34 Mass. App. Ct. 79, 86 (1993).
The inconsistencies between the testimony of Detective Derby and the witnesses at the party is an issue of witness credibility for the jury to decide; "they may accept or reject, in whole or in part, the testimony presented to them." Commonwealth v. Clary , 388 Mass. 583, 589 (1983) (quotation omitted).
Finally, any out-of-court identifications relayed by Detective Derby were not hearsay. "Prior extrajudicial identifications may be admissible as substantive evidence even if the identifying witness fails to make an in-court identification." Commonwealth v. Morgan , 30 Mass. App. Ct. 685, 690 (1991). "[W]here the jury are confronted with disputed testimony concerning identification, they can determine whose version to believe—the witness who claims not to remember or disavows the prior identification ..., or the observer who testifies that the witness made a particular prior identification." Commonwealth v. Cong Duc Le , 444 Mass. 431, 439-440 (2005).
4. Eyewitness testimony issues . The defendant contends that the trial judge gave inadequate instructions on identification in light of the Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices (July 25, 2013), which was provisionally adopted in Commonwealth v. Gomes , 470 Mass. 352, 379-388 (2015) (Appendix). Additionally, the defendant contends that the in-court identifications were unconstitutional, by reason that they were not based on "good reason." Commonwealth v. Collins , 470 Mass. 255, 265 (2014). These claims are meritless. The provisional instruction for eyewitness evidence and the new rules on in-court identification do not apply retroactively. See Commonwealth v. Crayton , 470 Mass. 228, 241-242 (2014) ; Commonwealth v. Collins , supra ; Commonwealth v. Gomes , supra at 354.
5. Closing argument . The defendant also contends that the prosecutor misstated the evidence four times during the closing argument and gave an erroneous joint venture instruction. The defendant did not object to the prosecutor's closing argument; therefore, we consider whether the prosecutor's argument was improper and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman , 352 Mass. 556, 563-564 (1967). When "considered in the context of the prosecutor's entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial," Commonwealth v. Fitzgerald , 376 Mass. 402, 416 (1978), we are satisfied that the prosecutor's closing argument did not create a substantial risk of a miscarriage of justice.
Immediately before the closing arguments, the trial judge appropriately instructed the jury that they were to deliberate only on the evidence before them and that the closing arguments were not evidence. See Commonwealth v. Pope , 406 Mass. 581, 588 (1990). In his closing argument, the prosecutor drew inferences from the testimony at trial regarding a coventurer possessing a gun, the ease with which witnesses identified the defendant, and a witness's ability to recognize the defendant as they were not strangers. "[P]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Drayton , 386 Mass. 39, 52 (1982). "The inferences suggested by the prosecutor need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Dinkins , 415 Mass. 715, 725 (1993). The jury reasonably could have made the inferences the prosecutor suggested, and his claims were based on the testimony at trial. Even if the prosecutor's statements about the law of joint venture were erroneous, the prosecutor acknowledged in his closing argument that the trial judge would instruct the jury on the law. Any misstatement by the prosecutor did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Sleeper , 435 Mass. 581, 596 (2002).
6. Internal Affairs report . The defendant claims that he was prejudiced by the Commonwealth's failure to disclose an Internal Affairs Report (report) concerning Detective Foley, which he argues is exculpatory evidence. When a defendant makes a general request for all exculpatory evidence, "the prosecutor must disclose only that evidence which is in fact material." Commonwealth v. Wilson , 381 Mass. 90, 109 (1980). "Material evidence is that evidence which on a consideration of the entire record ... creates a reasonable doubt that did not otherwise exist." Id . at 107 (quotations omitted). Here, the report is unrelated to the defendant's case.
Detective Foley was disciplined by the Boston police department for allegedly making false statements during an investigation of a murder that occurred approximately fifteen years before the present case. The defendant fails to show how the report "casts real doubt on the justice of [his] conviction," Commonwealth v. Weichell , 446 Mass. 785, 798 (2006) (quotation omitted), or is connected in any manner to the criminal charge at issue. Additionally, the defendant makes no showing of how the alleged misconduct was relevant to prove that, as a witness, Detective Foley was biased against him or had a motive to lie in this case. See Commonwealth v. Weichel , 403 Mass. 103, 106 (1988). The defendant is not entitled to relief, as the report does not bear on the question of the defendant's guilt.
Since the evidence was not exculpatory, the defendant's only other use for the report would have been to impeach Detective Foley's general credibility. The defendant has a right to cross-examine a witness for the purposes of showing bias, prejudice, or a motive to lie, as it relates to the present case. Commonwealth v. Michel , 367 Mass. 454, 459 (1975) ; Commonwealth v. Joyce , 382 Mass. 222, 231 (1981). However, the loss of an opportunity for impeachment does not furnish grounds for relief, particularly where the testimony of the witness is not central to the case. Cf. Commonwealth v. Sasville , 35 Mass. App. Ct. 15, 26 (1993) ("Where destroyed evidence is determined to be material, it is nevertheless unlikely that the prejudice to the defendant would be high where there is additional sufficient evidence upon which to convict him").
7. Ineffective assistance of counsel . We have already disposed of some of the issues the defendant raises as part of his ineffective assistance claim and need not discuss them again. We consider the remaining issues to determine "[1] 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, [2] whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
(a) Jury voir dire . The defendant contends that trial counsel was ineffective by failing either to move for a mistrial or to request voir dire of additional jurors when two jurors admitted that they knew trial witnesses. Trial counsel was not ineffective for failing to make a motion or request that would have been futile, see Commonwealth v. Vieux , 41 Mass. App. Ct. 526, 527 (1996), or had minimal chances of success. See Commonwealth v. Conceicao , 388 Mass. 255, 264 (1983). The trial judge had already taken measures to mitigate any potential prejudice created by these jurors by dismissing one of the two jurors, determining that the other juror could remain fair and impartial, and concluding that the remaining jurors were not exposed to extraneous information. See Commonwealth v. Amran , 471 Mass. 354, 358 (2015).
(b) Grand jury minutes . The defendant claims that trial counsel was ineffective for failing to introduce a witness's grand jury testimony after she was unable to testify at trial. The defendant contends that this witness's testimony would have added doubt as to whether he was misidentified. The witness's grand jury testimony established that she was in a vehicle with some of the coventurers who made admissions; the defendant was not in the vehicle at that time. The decision not to introduce this evidence did not prejudice the defendant as the testimony was not exculpatory. See Commonwealth v. Saferian , supra at 96-97. The witness never testified that the defendant was not involved in the home invasion and his absence from the car does not absolve him of guilt.
(c) Defense strategy . The defendant argues that his trial counsel was ineffective by failing to pursue an additional justification defense; i.e., that a home invasion did not occur because the coventurers were trying to rescue a friend who had been assaulted rather than commit a felony inside the house. Trial counsel's decision not to pursue an additional justification defense did not rest on "manifestly unreasonable judgment." Commonwealth v. Dodgson , 80 Mass. App. Ct. 307, 316 (2011) (quotation omitted). If trial counsel had pursued an additional justification defense, this could have vitiated the mistaken identity and alibi defense defenses. See Commonwealth v. Pagan , 35 Mass. App. Ct. 788, 791 (1994).
We discern no error of law or abuse of discretion in the conclusion by the motion judge that the materials submitted in support of the defendant's motion for new trial did not raise a substantial issue warranting an evidentiary hearing. See Commonwealth v. Goodreau , 442 Mass. 341, 348-349 (2004).
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Judgment affirmed .
Orders denying motion for new trial and motion for reconsideration affirmed .