Opinion
20-P-839
03-03-2022
COMMONWEALTH v. Steven C. MILLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Steven C. Miller, was convicted after a jury trial in the District Court in 2013 of one count of assault and battery on a police officer and one count of resisting arrest. He filed a motion for a new trial in 2016, primarily alleging ineffective assistance of defense counsel, which he supplemented in 2019 with a claim that defense counsel labored under a conflict of interest. The trial judge denied the new trial motion after a nonevidentiary hearing, and the defendant appealed. We affirm.
The defendant filed a timely notice of appeal after the trial but never acted on it. A single justice of this court deemed the defendant's January 20, 2020, notice of appeal to be timely as to the February 14, 2019, denial of his new trial motion. Only the denial of the new trial motion is before us.
Discussion. 1. Motion to suppress. The defendant argues that his motion to suppress the police officers’ observations of his conduct, statements, and demeanor after they entered his home should have been allowed, and that defense counsel provided ineffective assistance in arguing the motion. "To prevail on a claim of ineffective assistance of counsel based on grounds not raised in a motion to suppress, the defendant must show that the motion to suppress would have been successful." Commonwealth v. Banville, 457 Mass. 530, 534 (2010). The defendant's claim fails because the motion to suppress was properly denied.
There is no merit to the defendant's suggestion that his daughter did not have authority to allow the police to enter their shared home. The daughter told the police, who had arrived at the house in response to a domestic disturbance, that she had lived there all her life, that the defendant had thrown her out earlier in the day, and that she needed to get back in to retrieve some items. She also had a key. The police reasonably believed that she had the authority to allow them to enter. See Illinois v. Rodriguez, 497 U.S. 177, 188 (1990) ; Commonwealth v. Dejarnette, 75 Mass. App. Ct. 88, 96 (2009).
The defendant's reliance on Georgia v. Randolph, 547 U.S. 103 (2006), is misplaced. The defendant fails "to distinguish two different issues: when the police may enter without committing a trespass, and when the police may enter to search for evidence." Id. at 118. While the daughter's consent may not have been sufficient to allow the police to search the house over the defendant's express refusal, the police were not present to conduct a search, nor did they conduct one. Indeed, Randolph specifically reserved the authority of the police responding to a domestic dispute "to give a complaining tenant the opportunity to collect belongings and get out safely." Id.
2. Trial. The defendant contends that defense counsel's efforts to represent him at trial fell short in numerous ways. Because defense counsel's conduct was consistent with a reasonable -- and partly successful -- defense strategy, we conclude that the defendant has not carried his burden of demonstrating ineffective assistance.
a. Standard of review. "Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant." Commonwealth v. Montez, 450 Mass. 736, 755 (2008). To prevail, "the defendant bears the substantial burden of demonstrating both that (1) the conduct of his counsel fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and (2) this conduct ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where "the defendant's claim of ineffective assistance is based on a tactical or strategic decision, we apply the more rigorous standard that, to be ineffective, the attorney's decision must have been manifestly unreasonable when made," Commonwealth v. Velez, 487 Mass. 533, 540 (2021), making "every effort ... to eliminate the distorting effects of hindsight," id., quoting Commonwealth v. Holland, 476 Mass. 801, 812 (2017).
b. Jury instructions. The defendant contends that defense counsel was ineffective for failing to seek instructions on specific unanimity with respect to the charge of assault and battery on Officer Leitner and on self-defense.
"An instruction on specific unanimity is warranted ‘when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged. There, in order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident.’ " Commonwealth v. Shea, 467 Mass. 788, 798 (2014), quoting Commonwealth v. Santos, 440 Mass. 281, 284–285 (2003). Such an instruction was not warranted here, because the two possible batteries -- there was testimony that the defendant first shoved, then punched, Leitner -- occurred within moments of each other. See Shea, supra, quoting Santos, supra at 285 ("[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required").
Viewed in the light most favorable to the defendant, an instruction on self-defense would have been warranted if requested. "However, a judge has no obligation to instruct when neither party requests, because doing so may ‘interfere[ ] with the defendants’ right to present their chosen defenses.’ " Commonwealth v. Waller, 486 Mass. 72, 75 (2020), quoting Commonwealth v. Norris, 462 Mass. 131, 144 (2012). Based on defense counsel's cross-examination of the police officers, the defendant's direct testimony, and defense counsel's closing argument, we infer that the decision not to request a self-defense instruction was an intentional trial tactic. See Commonwealth v. Kolenovic, 471 Mass. 664, 674–675 (2015) ("The manifestly unreasonable test ... is essentially a search for rationality in counsel's strategic decisions, ... not whether counsel could have made alternative choices").
The theory of the defense was that the defendant did not deliberately shove, punch, or kick any of the officers and did not resist the arrest. Rather, the defendant testified that as the officers were pursuing him into a narrow upstairs hallway to prevent him from entering a bedroom, he turned and Leitner "walked right into [him]." The defendant instinctively pushed Leitner back, at which point Leitner told him he was under arrest and grabbed his shirt, while another officer pushed him to the ground, causing his face to smash into the floor and his nose to start bleeding. The defendant tried to lift his face from the floor so he could breathe. Defense counsel's decision to argue that "there was incidental contact" between the defendant and Leitner, and that the defendant did not punch anyone, would have been inconsistent with an assertion that the defendant resorted to force necessary and appropriate to defend himself from attack. Counsel's decision not to argue self-defense, accordingly, was not manifestly unreasonable. See, e.g., Waller, 486 Mass. at 76.
c. Failures to lodge objections. Defense counsel's failure to object when each officer testified that as soon as the defendant pushed Leitner, he had committed a crime, did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 686 (2002) ("when the claim of ineffectiveness is predicated, as it is here, on counsel's failure to object to something that occurred at trial, the standard for evaluating the ineffectiveness claim is not significantly different from the substantial risk standard that is applicable to our review of the underlying, unpreserved error"). While "[n]o witness, including a police witness, may testify as to a defendant's guilt or innocence," Commonwealth v. Hamilton, 459 Mass. 422, 439 (2011), the resisting arrest charge required the Commonwealth to prove that the officers intended to arrest the defendant and that the defendant understood he was being arrested, see Commonwealth v. Quintos Q., 457 Mass. 107, 109 (2010). And, of course, officers may not effect an arrest unless they have probable cause to believe that a crime has been or is being committed. See Commonwealth v. Suters, 90 Mass. App. Ct. 449, 459 (2016) (act of pushing door into police officer established probable cause to arrest). Thus, the officers’ collective opinion that the defendant had committed a crime was implicit in their decision to arrest him, and their testimony to that effect was not unfairly prejudicial. See, e.g., Hamilton, supra. See also, e.g., Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 389-390 (2017).
It was also a reasonable tactical decision. The officers’ lockstep testimony that the incidental contact at the top of the stairs justified their actions played into the defense strategy that the officers were overly aggressive and that their claimed officer safety justification was not credible. In this regard, defense counsel's cross-examination of Leitner was telling:
Q.: "And he pushed you?"
A.: "Yes."
Q.: "And then it was all over from there? There was a crime?"
A.: "Yes."
Q.: "Assault and battery on a police officer?"
A.: "Yes, sir."
Q.: "And that's what started it all right there?"
A.: "Yes."
The jury instruction on resisting arrest adequately conveyed that the resisting had to occur after the arrest. The instruction was correct, and an objection would not have accomplished anything material for the defense.
The defendant also asserts that defense counsel was ineffective for failing to object to a list of statements that, the defendant now claims, amounted to inadmissible and prejudicial hearsay. "Any lawyer combing the record can try the case better." Commonwealth v. Carlos, 38 Mass. App. Ct. 929, 932 (1995). For the reasons stated at pages twenty-seven through thirty of the Commonwealth's brief, many of these statements were not in fact hearsay, and the rest were cumulative of evidence that was properly admitted and did not otherwise create a substantial risk of a miscarriage of justice.
Nor did defense counsel's failure to impeach Officer Dicker with his testimony from the suppression hearing amount to ineffective assistance. "In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). The inconsistent testimony on which the defendant focuses went to collateral issues, and the failure to raise these matters did not deprive the defendant of a substantial defense.
Finally, the defendant faults counsel for not objecting to certain of the prosecutor's statements in closing argument. We discern nothing objectionable -- the closing argument was properly based on the evidence and the fair inferences that could be drawn from it. See Mass. G. Evid. § 1113(b)(2) (2021). Although the defendant's daughter did not specifically testify that she wanted the police to accompany her into the house "for her safety," that desire could reasonably be inferred from the fact that the defendant locked her out of the house, the police were called, she handed the officers the key, and they accompanied her into the house when the defendant failed to come to the door. The prosecutor's statement that the defendant was angry and "smelled like alcohol" was based on the officers’ direct observations, not on hearsay. By arguing that the officers’ actions were based on a concern for their safety, whereas the defendant took no responsibility for his, the prosecutor was not appealing to sympathy or shifting the burden; he was properly arguing why the jury should find the officers’ version of events credible and disbelieve the defendant's self-serving testimony.
3. Conflict of interest. Affidavits of the defendant and his daughter, submitted with the supplement to his new trial motion, averred that defense counsel told the defendant that he had a nephew on the Watertown police force and another in the Watertown fire department, and, therefore, counsel did not want to "push too hard." The defendant argues that counsel labored under an actual conflict of interest, automatically entitling him to a new trial. See Commonwealth v. Stote, 456 Mass. 213, 217 (2010).
The trial judge's denial of the motion indicates that he did not find the defendants’ affidavits credible. See, e.g., Commonwealth v. Dubois, 451 Mass. 20, 29 (2008). Even if true, however, the representations in the defendants’ affidavits do not amount to an actual conflict. There is nothing inherent in having a nephew on the police force -- much less in the fire department -- that would cause an impartial observer to doubt a defense attorney's ability to defend his client against charges involving other members of the same force. See, e.g., Stote, 456 Mass. at 218-221. Indeed, defense counsel vigorously cross-examined all the police witnesses and cogently argued that they overreacted because they were angered by the defendant's verbal defiance. To the extent defense counsel did not aggressively attack the officers on the stand, this was a prudent strategy in a case in which his client was accused of aggressively attacking police officers.
4. Incomplete transcript. The trial judge did not err in declining to grant the defendant a new trial because parts of the proceedings were inaudible and not transcribed. The defendant made no effort to reconstruct the record, nor any showing that the missing parts of the transcript supported any viable appellate issue. See, e.g., Bart B., 424 Mass. at 916 ; Commonwealth v. Woods, 419 Mass. 366, 371 (1995) ; Commonwealth v. Pudder, 41 Mass. App. Ct. 930, 931-932 (1996). This is not a case in which the defendant was denied his due process right to a meaningful appeal because a transcript was unavailable and reconstruction of the record was impossible. See Commonwealth v. Harris, 376 Mass. 74, 78 (1978).
Order entered February 14, 2019, denying motion for a new trial affirmed.