Opinion
11-P-751
04-13-2012
COMMONWEALTH v. PEDRO MIRANDA MENDEZ
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
This is the defendant's latest appeal related to his convictions for a 1995 robbery in Lowell. He asserts error in the Superior Court judge's denial of his second motion for a new trial. His arguments were either previously rejected by this court, or not raised below, and we therefore affirm.
The defendant first urges reversal based on the grounds that the warrantless search of his apartment was unconstitutional. As this court previously ruled, '[t]he officer had probable cause to believe that the defendant had recently committed a crime of violence and was armed. This information, coupled with the defendant's repeated glances at the nearby cupboard, gave the officer reason to be concerned for his safety.' Commonwealth v. Mendez, 56 Mass. App. Ct. 1111 (2002). See Commonwealth v. DiToro, 51 Mass. App. Ct. 191, 195 (2001) (discussing requirements for exigency exception to warrant requirement).
Next, the defendant argues that his convictions were fatally flawed because of the seeming contradiction between an acquittal on the charge of possession of a firearm and convictions for other armed offenses. This issue was also previously disposed of by this court when we stated that, 'the verdicts are not necessarily inconsistent . . . [and] even if a verdict is inconsistent, it is not necessarily erroneous. Commonwealth v. Clements, 51 Mass. App. Ct. 508, 523 (2001), S. C., 436 Mass. 190 (2002).' Mendez, supra.
Finally, the defendant contends that he received ineffective assistance of counsel when his attorney failed to move for a required finding of not guilty, based on the same inconsistent verdict argument, following the jury verdict. 'Both the Supreme Judicial Court and this court have long and consistently observed that claims of ineffective assistance of counsel, at least in the first instance, should be advanced in the context of a motion for a new trial.' Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999). The defendant, having made two motions for a new trial, had every opportunity to make an ineffective assistance argument and failed to do so. The issue is not properly before this court.
While the defendant's ineffective assistance argument on appeal does not appear to be even an indirect challenge to the sufficiency of the evidence, we note that the record reveals sufficient evidence for the conviction under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 678-679 (1979). See Commonwealth v. Grandison, 433 Mass. 135, 140 n.8 (2001).
Even if the ineffective assistance claim were properly before the court, this argument lacks merit. '[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.' Commonwealth v. Sherry, 386 Mass. 682, 698 (1982), quoting from Commonwealth v. Scott, 355 Mass. 471, 475 (1969). Trial counsel's failure to argue against this well-settled law with the facts in question was not conduct 'measurably below that which might be expected from an ordinary fallible lawyer.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
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Order dated April 4, 2011, denying motion for new trial affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),