Opinion
No. 10–P–663.
2013-05-23
COMMONWEALTH v. TAHARGA MOTT.
By the Court (RAPOZA, C.J., CYPHER, KANTROWITZ, CARHART & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of assault and battery causing serious bodily injury, G.L. c. 265, § 13A( b )(i), and attempt to commit a crime (larceny), G.L. c. 274, § 6.
On appeal, he argues that the trial judge: (1) wrongly denied his motion for a new trial based on ineffective assistance of counsel; and (2) abused his discretion in limiting the scope of evidence as to that motion. He also claims that the Commonwealth presented insufficient evidence to support the conviction of attempted larceny.
A not guilty verdict was returned on the charge of unarmed robbery, G.L. c. 265, § 19( b ).
The defendant's appeals from his conviction and from the denial of his motion for a new trial were consolidated.
1. Ineffective assistance of counsel. The defendant argues that trial counsel's failure to file a motion to suppress
and a motion in limine to preclude impeachment with prior convictions deprived him of his Federal and State constitutional right to effective assistance of counsel. In the analysis of a claim of ineffective assistance of counsel, we apply the familiar standard set out in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant must establish that counsel's representation fell “measurably below that which might be expected from an ordinary fallible lawyer” and that, as a result, he was deprived of “an otherwise available, substantial ground of defence.” Ibid. We see no abuse of discretion in the judge's denial of the motion for a new trial on this ground. See Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). a. Motion to suppress. The defendant claims that the police violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights when, acting without a warrant, they entered the homeless shelter where he was staying for the night and transported him to the crime scene where he was identified by an eyewitness as the perpetrator. He also claims that the police subjected him to an unnecessarily suggestive showup in violation of his rights under the Sixth Amendment to the United States Constitution. Trial counsel, exercising his strategic prerogative, declined to file a motion to suppress the above evidence for lack of merit.
The defendant frames this issue slightly differently in his brief than in the motion for a new trial. He asserts in his brief that counsel was ineffective for failing to file a “motion to dismiss” based on the police entry into his “home.” We see no advantage in this change in nomenclature as we address the underlying legal principle rather than the label.
To establish his entitlement to the constitutional protections from an unreasonable search, the defendant must show that a search in the constitutional sense has occurred. A search triggering these protections occurs when “police conduct has intruded on a constitutionally protected reasonable expectation of privacy.” Commonwealth v. Montanez, 410 Mass. 290, 301 (1991), citing California v. Ciraolo, 476 U.S. 207, 211 (1986). The defendant has the burden to demonstrate a subjective expectation of privacy in the place searched, and that such expectation is one that society would recognize as reasonable. Commonwealth v. Montanez, supra. The defendant failed to meet his burden. His affidavit in support of the motion for a new trial did not assert a subjective expectation of privacy in either the shelter generally or in the dormitory room where he was observed by the police. Nor did he offer sufficient evidence to warrant the motion judge in concluding that such an expectation would have been reasonable.
The motion judge's findings describe a facility where shelter residents are granted the right of occupancy on a nightly basis in exchange for restrictions on privacy and freedom of movement. Shelter residents are not allowed to come and go as they please and they must obey the shelter's conduct rules. They must sign in and out and they must arrive by a certain time to be admitted. None of the shelter residents are issued keys to the facility or to their dormitory room. Shelter residents share sleeping quarters in an open dormitory room outfitted with approximately twenty-five cots or beds. The shelter entrance was open to accommodate members of the public seeking a bed for the night and to provide access to those persons already in residence.
Upon arriving at the shelter, the police entered the lobby area from which they observed the defendant in plain view through an open door. The defendant was removing an article of clothing, but he made no effort to shield himself from persons entering the lobby from the street. Any person, including police officers, entering the facility from the street would have had an unobstructed view of the defendant in his dormitory room. On this record, the defendant had no reasonable expectation of privacy in either his shared dormitory room or in the facility generally.
The defendant's argument is not advanced by his reliance on Commonwealth v. Porter P., 456 Mass. 254, 256, 260–261 (2010). Although the court recognized an expectation of privacy in a shelter setting, the facts are distinguishable. Constitutionally speaking, in Porter P., the defendant's room within the shelter was his home, as the court found he had a possessory interest in the space, the right to live there on a temporary basis as provided by the shelter's agreement with the Department of Transitional Assistance, and, subject to shelter regulations, the right to exclude others by locking the door. Here, where the defendant had no such rights suggesting a reasonable expectation of privacy, the police conduct did not constitute a search.
We also agree with the motion judge that the police did not effect an unlawful seizure in requesting the defendant accompany them to the scene of the crime for a showup. Where the defendant assented to the police officers' request, the police did not exceed the scope of a stop permissible under Terry v. Ohio, 392 U.S. 1 (1968). We likewise agree that the one-on-one identification was not unnecessarily suggestive. The motion judge's conclusion that the police had good reason to transport the defendant back to the scene for the showup comports with the applicable principles of law and is supported by the record. Commonwealth v. Amaral, 81 Mass.App.Ct. 143, 148–149 (2012), and cases cited.
b. Motion in limine. The defendant next argues that trial counsel's failure to file a motion in limine to exclude his prior convictions caused him undue prejudice.
Trial counsel conceded in an affidavit that he was remiss in failing to file a motion in limine regarding the prior convictions. The judge nevertheless ruled that regardless of any deficiency on the part of trial counsel, the omission was not prejudicial.
The jury acquitted the defendant of unarmed robbery, demonstrating that they were not influenced by the evidence of the prior convictions. The defendant minimizes the import of the jury's verdict. He suggests that because the Commonwealth presented no evidence that he took property from the victim, the jury simply did their job. Of course, that is precisely the point. The jury's verdict, based on the evidence rather than on their impression of the defendant's character, demonstrates fairness to the defendant. We add that the judge properly instructed the jury on the use of prior convictions and presume that the jury followed those instructions. Commonwealth v. Pope, 406 Mass. 581, 588 (1990).
2. Evidentiary matters. The defendant claims that the motion judge abused his discretion in failing to hold an evidentiary hearing to take trial counsel's testimony, and in denying the defendant's motion to expand the record to include business records from the shelter. The claims are without merit.
On a motion for a new trial, we defer to the sound discretion of the motion judge in deciding whether to hold an evidentiary hearing, particularly when the motion judge was the trial judge in the matter. Commonwealth v. DeVincent, 421 Mass. 64, 67, 69 (1995). Here, any further opportunity to explain counsel's reasoning would not have aided the defense. See Commonwealth v. Daigle, 379 Mass. 541, 544 (1980) (“When the arguably reasoned tactical or strategic judgments of a lawyer are called into question, we do not ‘second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty’ ”), quoting from Commonwealth v. Rondeau, 378 Mass. 408, 412 (1979). The defendant's attack on the motion judge's decision to exclude the late-proffered business record is utterly groundless. The motion judge can hardly be faulted for declining to reopen the evidence to allow counsel to cure her error in omitting the business record from her proffer.
3. Sufficiency of the evidence. We review a claim of sufficiency of the evidence under the oft-repeated Latimore standard, viewing the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). The defendant's challenge to the jury's verdict is that the evidence was insufficient to establish a specific intent to steal. More specifically, he claims that proof of a specific intent to steal was lacking in the absence of evidence that the perpetrator was thwarted in his completion of the crime. A witness to the crime testified that the defendant entered the victim's vehicle and rummaged through it, stopping only when he was told that the police were on the way. If the jury believed this testimony, as they must have, they could have inferred that the defendant's intent was to steal from the vehicle, and that he failed to complete the crime only because of the warning that the police had been called. On this record, the evidence was sufficient to prove the defendant guilty of attempted larceny beyond a reasonable doubt. See Commonwealth v. Charlton, 81 Mass.App.Ct. 294, 303 (2012).
Judgment affirmed.
Order denying motion for new trial affirmed.