Opinion
20-P-1116
01-21-2022
COMMONWEALTH v. Joell PEREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was adjudicated a youthful offender for carrying a firearm without a license in violation of G. L. c. 269, § 10 (a ), and five counts of attempted assault and battery by discharging a firearm, in violation of G. L. c. 265, § 15F. These adjudications stemmed from an early afternoon shooting, captured on a surveillance video, between two groups. On appeal, the defendant argues that (1) there was insufficient evidence to support his adjudications; (2) the prosecutor misstated the evidence during closing argument; (3) the judge provided incorrect instructions on the elements of attempted assault and battery with a firearm; and (4) trial counsel made errors that amounted to ineffective assistance of counsel. We affirm.
Discussion. 1. Sufficiency of the evidence. We summarize the evidence under the familiar standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 666-677 (1979).
The shooting occurred when Ryan Cook ("Cook") was confronted on the street in front of his house by a group of people that included the defendant (defendant's group), which viewed Cook as a "rat" because he had provided information to law enforcement about a murder. The defendant's group exchanged words with Cook and his family members who gathered around him. A member of the defendant's group (not the defendant) approached Cook and his family from the other side of the street, wielding a knife. Cook's cousin then fired a shot into the air, followed by return fire from the defendant's group. Five bullets struck Cook's family's house.
The jury saw surveillance video footage of the incident from cameras on the outside of the Cook home. The video showed that immediately after Cook's cousin appeared with a gun, the defendant was across the street, facing Cook and his family outside their house. The defendant removed his hands from his front pockets, squared off momentarily, and continued to face the Cook family as he side-stepped away. He was the last of the defendant's group to leave the frame of the video. Simultaneously, Cook and his family ducked and retreated into their driveway; Cook's mother suddenly fell to the ground, and trial testimony established that, at the time, she yelled that she had been shot.
The defendant challenges the sufficiency of the evidence to support his adjudication of delinquency and maintains that the trial judge should have granted his motion for a required finding that he was not delinquent. We review this claim, considering the evidence introduced at trial in the light most favorable to the Commonwealth, to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, Latimore, 378 Mass. at 677-678, bearing in mind that guilt may be established by circumstantial evidence "and that the inferences a jury may draw from the evidence ‘need only be reasonable and possible and need not be necessary or inescapable.’ " Commonwealth v. Linton, 456 Mass. 534, 544 (2010), quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007).
The evidence, particularly the surveillance footage, allowed the jury to find beyond a reasonable doubt that the defendant fired a gun at Cook and his family. Based on the evidence, it was reasonable for the jury to infer that the defendant arrived at Cook's home with an armed group that intended to fight with Cook, and that, in pulling his hand from his pocket while facing Cook and his family, who ducked, ran, or fell to the ground, the defendant was firing a gun at the family. Contrary to the defendant's claim, there was no requirement that an eyewitness testify that the defendant fired a gun. To the extent there was any inconsistency between the sequence of events shown on the video and the witness's description of those events, the jury were entitled to resolve that inconsistency, which they did. See Lao, 443 Mass. at 779 ("If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province"). Accordingly, the judge did not err in denying the defendant's motion for required findings that he was not delinquent.
2. Closing argument. The defendant maintains that the prosecutor's closing argument was improper because it misstated the evidence. Because the defendant did not object at trial, we review this claim to determine whether there was error, and if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016). We discern no error.
The contested statements -- "[Cook], when the gunshot starts going off, had his back turned," and "[n]obody could ID [the defendant] because their backs were turned" -- were supported by three witnesses’ testimony that they were either facing or walking toward the driveway when the gunshots at issue were fired from the street, behind them. See Commonwealth v. Coren, 437 Mass. 723, 730 (2002), citing Commonwealth v. Good, 409 Mass. 612, 623 (1991) ("Prosecutors must limit the scope of their arguments to facts in evidence and inferences that may be reasonably drawn from the evidence"). If, as the defendant claims, those statements can be perceived as contrary to the video evidence, it does not mean that the statements were not fairly grounded in the evidence, rather it means that any inconsistences were for the jury to resolve. There was no error, and no substantial risk of a miscarriage of justice.
3. Jury Instructions. The defendant argues that the trial judge's instruction on intent was erroneous. Again, absent an objection at trial, we review for error and, if we find it, ask whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). "We evaluate [the challenged] jury instructions as a whole and interpret them as would a reasonable juror." Id.
A defendant adjudication for attempted assault and battery by discharging a firearm requires proof that "the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so." See Commonwealth v. Melton, 436 Mass. 291, 295 (2002). The Commonwealth must also prove that the attempted battery was committed "by means of discharging a firearm." G. L. c. 265, § 15F. Here, the jury were instructed that in order to convict, "the Commonwealth must convince you ... beyond a reasonable doubt of the following elements: first, that the [d]efendant took an overt act towards committing a touching, namely shooting at a group of individuals, however slight, which was part of carrying out the touching and came reasonably close to carrying out the touching; second, that the [d]efendant intended to engage in the shooting at a group of individuals; and third, that the attempted touching was committed by discharging a firearm."
Taken as a whole, these instructions "clearly and correctly conveyed" that it was the Commonwealth's burden to prove that the defendant intentionally took an overt act towards accomplishing a touching. Commonwealth v. Randolph, 438 Mass. 290, 303 (2002). The defendant contends that the instruction should have explained to the jury that the Commonwealth was required to prove an intent to commit a battery, not an intent to commit the shooting, because it is easier to prove an intent to commit a shooting than a battery. We are not persuaded. The instruction was tailored to reflect that the alleged touching in this case was firing a gun, intentionally, at a group of individuals, and it did not deviate from the substance of the model instruction. See Instruction 4.120 of the Criminal Model Jury Instructions for Use in the District Court (2014). There was no error.
4. Ineffective assistance of counsel. Finally, the defendant contends that a new trial is required because counsel was ineffective for failing to: (i) show the surveillance video to the defendant before trial; (ii) call an expert witness to testify that the video did not show a firearm in the defendant's hand; (iii) adequately cross-examine Commonwealth witnesses; (iv) provide an adequate closing argument; (v) object to the prosecutor's closing; (vi) object to the jury instruction; and (vii) request a self-defense instruction.
A successful claim for ineffective assistance of counsel requires a showing that (a) counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer"; and (b) such conduct deprived the defendant of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We give deference to counsel's tactical decisions unless they are "manifestly unreasonable." Commonwealth v. White, 409 Mass. 266, 273 (1991), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
On this record, the defendant cannot make the required showing. Because he has not moved for a new trial, we have no affidavit from counsel detailing counsel's decision-making process. The absence of such an affidavit need not doom an ineffective assistance claim on direct appeal if "the factual basis for the claim appears indisputably on the trial record." Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994) But this is not such a case. The defendant's claim of ineffective assistance is best left for resolution in the trial court. See Commonwealth v. Zinser, 446 Mass. 807, 810 (2006) (preferred method for raising claim of ineffective assistance is motion for a new trial).
To the extent the record provides hints as to the likelihood of the defendant's success on such a claim, we note that decisions about whether to call an expert witness, the scope of cross-examination, and whether and when to object to closing arguments or request an instruction, are "tactical or strategic decisions" which we view "with some deference." White, 409 Mass. at 272. Even if counsel failed to show the surveillance video to the defendant through mistake or inadvertence, rather than making a strategic decision not to do so, and even if this representation fell measurably below that expected from an ordinary fallible lawyer, we fail to see the prejudice. Nor does the defendant explain how better work might have accomplished something material for the defense. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The trial record does not support the defendant's claim that counsel's alleged failure deprived the defendant of the ability to fully assist his attorney in preparing a vigorous defense.
The record is devoid of explanation as to why the defendant apparently had not seen the video before trial.
Judgments affirmed.