Opinion
11-P-507
12-28-2012
COMMONWEALTH v. RICHARD MELENDEZ.
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
The defendant appeals from the denial of his motion for a new trial without an evidentiary hearing. The defendant contends that his trial counsel was ineffective because he (1) failed to investigate the defendant's claims that the Commonwealth tricked the defendant into making incriminating telephone calls from prison and (2) failed to file a motion to suppress the recordings of those calls.
Standard of review. 'The burden of proving entitlement to a new trial based on ineffective assistance of counsel rests on the defendant.' Commonwealth v. Watson, 455 Mass. 246, 256 (2009). Granted 'only in extraordinary circumstances,' Commonwealth v. Comita, 441 Mass. 86, 93 (2004), a motion for a new trial 'is addressed to the sound discretion of the judge,' Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002). Discussion. The defendant claims that his trial counsel was ineffective for failing to investigate whether corrections officers deceived him into making incriminating statements by not warning him that the calls would be recorded, thereby violating his constitutional rights against self-incrimination. '[T]he constitutional rights of an adult pretrial detainee, such as the defendant, are not violated when the sheriff provides copies of the detainee's recorded telephone calls in response to a subpoena, provided that all parties have notice that the calls are subject to monitoring and recording, and the monitoring and recording is justified by legitimate penological interests.' Commonwealth v. Hart, 455 Mass. 230, 244 (2009). Each call placed by the defendant from MCI-Concord was preceded by a message informing all parties that the call was being recorded. After hearing that disclaimer, the defendant voluntarily continued with each phone call, which invalidates his claim of constitutional violations. See Hart, supra. With no other evidence of deception or involuntariness, trial counsel's decision to not further investigate the claims was a tactical one that was not manifestly unreasonable when made. See Watson, supra.
Whether to hold an evidentiary hearing is also within the judge's discretion. Thurston, 53 Mass. App. Ct. at 551. The judge may decide the motion based solely on the affidavits, and 'she is not required to credit an affidavit even if it is undisputed.' Ibid.
Next, the defendant contends that trial counsel was ineffective for not moving to suppress the recorded telephone calls. '[T]o prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.' Comita, supra at 91. The defendant cannot meet this burden because, as discussed above, recording and disclosing the phone calls did not violate the defendant's constitutional rights. Filing a motion to suppress would have been futile, and thus the defendant was not deprived of effective assistance of counsel.
Analyzing his performance under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the defendant's trial counsel was not ineffective. The judge did not abuse his discretion in denying the defendant's motion for a new trial without an evidentiary hearing.
Order denying motion for new trial affirmed.
By the Court (Kafker, Cohen & Trainor, JJ.),