Opinion
No. 15–P–148.
11-18-2016
COMMONWEALTH v. Jose MORALES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jose Morales, appeals from his convictions of carrying a firearm without a license, possession of ammunition without a firearm identification card, and possession of a firearm within 500 feet of a dwelling in violation of G.L. c. 269, § 10(a) and § 10(h), and G.L. c. 131, § 58 , respectively. He also appeals from the denial of his motion for a new trial. For the reasons set forth below, we affirm.
General Laws c. 131, § 58, inserted by St.1967, c. 802, § 1, provides that:
"A person shall not discharge any firearm or release any arrow upon or across any state or hard surfaced highway, or within one hundred and fifty feet, of any such highway, or possess a loaded firearm or hunt by any means on the land of another within five hundred feet of any dwelling in use, except as authorized by the owner or occupant thereof."
At trial, both parties treated this offense as "discharging a firearm" within 500 feet of a dwelling, rather than possession of a loaded firearm as the complaint alleges. The judge instructed the jury on discharging a firearm. The defendant argues that this error deprived him of his due process rights by omitting elements of the crime charged, without noting specifically what element was missing. This error does not create a substantial risk of a miscarriage of justice. The judge instructed the jury that they had to find that "the Defendant discharged a firearm" in order to find him guilty on this count. Discharging a firearm necessarily requires possession of a loaded firearm. As the jury also necessarily found that the evidence supported findings of the other elements of the offense, there was no risk of a miscarriage of justice.
Background. The jury could have found the following facts based on the evidence presented at trial. On the night of August 28, 2010, the defendant attended a party at his friend's apartment, located on Chatham Street in the city of Lynn. At around 4:00 A.M. on the morning of August 29, the defendant was in the stairwell of the apartment building, talking to his girl friend on his cellular telephone. Other partygoers were in the driveway outside, and the defendant heard an argument occurring. While in the stairwell, an unknown male approached the defendant and pointed a gun at him. Words were exchanged between them, and the gunman then left. The defendant went outside, where people were still arguing. At some point, several people began shooting guns. The defendant found himself with a gun in his hand, which he pointed into the air and fired two or three shots. During the shooting, Rebecca Denbow, a party guest who was also outside, was hit by a bullet in the leg. The defendant and another party guest then fled from the scene by jumping over a metal fence and running down an alley behind the apartment building. As he ran, the defendant hid the gun under a plastic barrel outside a nearby liquor store. Shortly thereafter, the defendant and the other guest were apprehended nearby by police, because they matched the description of two men leaving the scene as reported by a neighbor, who had heard the shooting and called the police.
Later that morning, Detective Pohle of the Lynn police department interviewed the defendant at the police station. The defendant admitted that he had a gun, but denied that he brought it to the party, stating the he did not remember how he had obtained the gun because he had been drinking and smoking that night. He admitted to firing the gun in the air in order to scare off the man who had threatened him and the other men outside. He stated that he ran from the scene and hid the gun because he was scared.
At trial, in his opening statement, defense counsel admitted that the defendant possessed and fired a gun. The sole defense was that the defendant was defending himself and others from the gunfire directed at them. Defense counsel requested jury instructions on necessity and self-defense. The judge refused to give the self-defense instruction, but did give the necessity instruction. The defendant was convicted on all three counts. He then filed a motion for a new trial, accompanied by affidavits from two trial witnesses, his trial counsel, and an expert on firearms. The judge denied the motion, and this consolidated appeal followed.
Discussion. On his direct appeal, the defendant alleges errors by the trial judge in admitting evidence of Denbow's gunshot injury, and in improperly charging the jury with a crime for which he was not on trial.
On his appeal from the denial of his motion for a new trial, the defendant argues that his trial counsel provided ineffective assistance in three ways: (1) by failing to seek a "defense of others" jury instruction; (2) by failing to conduct a more thorough investigation into the bullet recovered from Denbow's leg and failing to object to the Commonwealth's evidence on that subject; and (3) by failing to object to the Commonwealth's expert witness on his allegedly inconsistent testimony. He also claims that the judge erred in failing to hold an evidentiary hearing on his motion for a new trial. We address each issue in turn.
1. Alleged errors by the trial judge. Rulings on the admission of evidence are reviewed under an abuse of discretion standard. Commonwealth v. Pytou Heang, 458 Mass. 827, 851–852 (2011). There was no error in the judge's evidentiary rulings. Evidence of Denbow's gunshot wounds had probative value and did not unduly prejudice the defendant. The judge reasoned that evidence of the shooting "giv[es] the jury context with regard to the allegations," specifically "[t]he police response and any statements that may be introduced by way of the interview of the Defendant." There was no abuse of discretion to allow its admission. See Commonwealth v. Hernandez, 473 Mass. 379, 394 (2015) ("The prosecution [is] entitled to present as full a picture as possible of the events surrounding the incident itself, as long as the probative value of the evidence presented is not substantially outweighed by any prejudice to the defendant") (quotations omitted).
See note 1, supra, discussing the instruction on the elements of G.L. c. 131, § 58.
2. Claims of ineffective assistance of counsel. Ineffective assistance of counsel claims are governed by the familiar Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where it is alleged that counsel was ineffective for failing to present an available ground of defense, that "defense is ‘substantial’ for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented." Commonwealth v. Millien, 474 Mass. 417, 432–433 (2016).
In this case, it was not ineffective for the defendant's trial counsel not to request a defense of others instruction. Given the defendant's admissions to police that he possessed the gun and fired it, his trial counsel's only reasonable strategy at trial was to argue that he was justified in doing so. To further this defense, she requested jury instructions regarding the defenses of necessity and self-defense. The trial judge denied the self-defense instruction, stating the evidence did not support such an instruction, as the defendant was not charged with any assaultive conduct towards a person. See Commonwealth v. Garuti, 23 Mass.App.Ct. 561, 564 (1987). In giving an instruction on the defense of necessity, the judge appropriately authorized the jury to consider the defendant's claim that he possessed and fired a gun to protect others from life-threatening injuries. See Commonwealth v.. Leno, 415 Mass. 835, 839 (1993).
It was also not ineffective for the defendant's trial counsel to rely on the opinion of her expert in formulating her trial strategy. The decision whether to utilize expert testimony is generally a matter of trial strategy. Commonwealth v. Rosado, 434 Mass. 197, 200–201, cert. denied, 534 U.S. 963 (2001). Prior to trial, defense counsel retained the services of a ballistics expert in order to analyze the bullet recovered from Denbow's leg. The expert reviewed the bullet evidence, including the report from Trooper Cote (the Commonwealth's expert) and reported to defense counsel that "his findings were similar to those of the Commonwealth." As a result, her trial strategy was to argue that the defendant acted out of necessity. See Commonwealth v. Lindsey, 396 Mass. 840, 841 n. 2, 845 (1985). Reasonable trial tactics "do not amount to ineffective assistance unless manifestly unreasonable when undertaken." Commonwealth v. Haley, 413 Mass. 770, 778 (1992) (quotation omitted).
Similarly, it was not ineffective for the defendant's trial counsel not to object to Trooper Cote's testimony. As noted above, there was no reason for defense counsel to believe that Trooper Cote's testimony was untruthful or misleading, as her own expert had come to similar conclusions. It also should be noted that the affidavit of a ballistics expert offered in support of the defendant's motion for a new trial lacks foundational support, as it is based largely on a Wikipedia entry. "When the arguably reasoned tactical or strategic judgments of a lawyer are questioned, we do not ‘second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty.’ " Commonwealth v. Johnson, 435 Mass. 113, 133 (2001), quoting from Commonwealth v. Stone, 366 Mass. 506, 517 (1974). Furthermore, the failure to object to the testimony had no impact on the defense, as the source of the bullet in Denbow's leg was not an ultimate issue at trial. See Commonwealth v. Hynes, 40 Mass.App.Ct. 927, 930 (1996) (rejecting claim of ineffective assistance for failure to present evidence that would not have affected defense).
The judge did not err in denying the defendant's motion for a new trial without holding an evidentiary hearing. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (1996). "[T]he question whether to hold an evidentiary hearing is left largely to the sound discretion of the judge." Commonwealth v. Smith, 459 Mass. 538, 556 (2011) (quotation omitted). When deciding whether to hold an evidentiary hearing on a motion for a new trial, the judge must consider "both the seriousness of the issue itself and the adequacy of the defendant's showing on that issue." Commonwealth v. Marrero, 459 Mass. 235, 240 (2011) (quotations omitted). Here, the defendant has failed to make an adequate showing. Nothing in the affidavits of Denbow and Arme adds to their trial testimony, and the new defense expert's affidavit was detailed enough to assure the judge that nothing further would have been gained by having him repeat his testimony at a hearing.
Judgments affirmed.
Order denying motion for new trial affirmed.