Opinion
No. 10–P–1870.
2013-04-17
COMMONWEALTH v. Adilson R. RODRIGUES.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in Superior Court of three counts of assault by means of a dangerous weapon, unlawful possession of a firearm, unlawful possession of ammunition without a firearm identification card, unlawful possession of a loaded firearm, assault and battery on a pregnant person, threatening to commit a crime, and three counts of witness intimidation. We consolidated his direct appeal with his appeal from the denial of his motion for a new trial. On appeal, the defendant argues that his trial counsel provided ineffective assistance by failing to request a jury instruction on defense of another and by failing to challenge the Commonwealth's withholding of exculpatory evidence. The defendant also asserts that (1) the evidence presented at trial was insufficient to convict him as a principal, (2) the convictions of unlawful possession of a loaded firearm and unlawful possession of ammunition were duplicative, and (3) the Commonwealth failed to prove that the weapon the defendant used was a firearm. We address the defendant's claims seriatim. 1. Ineffective assistance claims. a. Jury instruction on defense of another. The defendant asserts that his trial counsel provided ineffective assistance by failing to request a jury instruction regarding defense of another.
Ineffective assistance of counsel requires “behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” which “likely deprived the defendant of an otherwise available, substantial ground of defen[s]e.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant must demonstrate that “better work might have accomplished something material for the defense.” Commonwealth v.. Satterfield, 373 Mass. 109, 115 (1977).
Defense counsel testified that he did not request a defense of another instruction because that theory would have undermined the defendant's primary defense that he did not touch the victim. The motion judge, who was also the trial judge, determined that this decision did not constitute ineffective assistance.
The defendant asserts that the judge erred in concluding that the instruction would have contradicted the defendant's “core” defense at trial, because his alibi defense was not related to the assault charges. Although it appears that the judge may have confused the defendant's theories with respect to the assault and firearms charges, this error does not avail the defendant. For the reasons explained above, the judge was correct that the instruction would have weakened the defendant's actual defense theory, namely that he did not make physical contact with Rodrigues.
At trial, the defendant testified that he intervened to break up the fight between the victim and the defendant's girlfriend, but he did not make any contact with the victim. Thus, his core defense was that he did not use any force, however slight. An instruction on defense of another, conversely, would have asked the jury to determine that the defendant used justifiable force to protect his girlfriend. See Commonwealth v. Barbosa, 463 Mass. 116, 135 (2012) (defense of another requires that a person use “force against another ... to protect a third person”). The instruction would have been tantamount to arguing to the jury in the alternative, an approach familiar to those with legal training, but a potential source of bafflement to the average layperson, one that can undermine a defendant's credibility. We must therefore consider whether counsel's decision, set forth in his affidavit, was “so manifestly unreasonable as to be protected by the labels of ‘trial strategy’ or ‘trial tactics.”’ Commonwealth v. Smith, 459 Mass. 538, 554 (2011).
Analysis of trial strategy necessarily is case specific. This case is most closely factually analogous to Commonwealth v. Norris, 462 Mass. 131 (2012), also involving codefendants and also featuring a defendant's strategy to distance himself from a dispute involving a companion. We conclude, as did the Supreme Judicial Court in Norris, that “advancing a theory of defense that was contradicted, or at least not supported by, the defendant's own words might have invited the jury to disbelieve [the defendant] and thereby undermine [the defendant's] central claim.” Id. at 142-143. Defense counsel's decision not to request the instruction was a reasonable strategy in light of the defendant's account of the events.
We consider the defendant's reliance on Commonwealth v. Miranda, 77 Mass.App.Ct. 76 (2010), and Commonwealth v. Eberle, 81 Mass.App.Ct. 235 (2012), unavailing. These cases involved the denial of requested instructions; in other words, they presented the frustration by a trial judge of a defense strategy (which also happened to be the converse of that pursued here).
b. “ Exculpatory” videotape evidence. The defendant also faults his trial counsel for failing to pursue a videotape that the Commonwealth allegedly failed to preserve.
We agree with the trial judge that defense counsel's decision, also strategic, not to pursue the videotape did not constitute ineffective assistance. The videotape at issue showed two black men drive into the Golden Circle housing complex and exit a vehicle without guns in their hands. Because of the poor quality of the videotape, it was not possible to identify either man. Defense counsel testified that he made the strategic decision not to pursue introduction of the tape because he thought the tape would contradict the defendant's primary alibi defense. The defendant maintained that he was never at Golden Circle on the night of the shooting. Defense counsel believed the videotape would be prejudicial to the extent it depicted two black men, one of whom the jury could perceive to be the defendant. Unlike the ballistic test results in Commonwealth v. Sanford, 460 Mass. 441 (2011), defense counsel considered the tape to have potential inculpatory, but no exculpatory, value. Further, defense counsel testified that his research led him to conclude that, given the lack of exculpatory potential, he had no viable basis to accuse the Commonwealth of bad faith in connection with the unavailability of the tape by the time of trial. We cannot conclude that defense counsel's decision not to make an issue of the missing tape was “manifestly unreasonable” under these circumstances.
In lieu of an affidavit, defense counsel testified at the hearing on the motion for new trial, thereby providing the defendant with the opportunity to cross-examine him.
2. Direct appeal claims. a. Insufficient evidence that defendant was a principal. The defendant asserts that there was insufficient evidence that he participated in the shooting.
There was ample evidence presented at trial from which the jury could have concluded that the defendant participated in the shooting. One witness testified that she saw the defendant's car drive into the complex and park next to her own vehicle. She stated that the defendant and a second unidentified man got out of the vehicle. As she was running away from the scene, she heard gunshots. A second witness also testified that he saw the defendant's car drive into the complex. He saw the defendant and the other man standing side by side with their hands pointed just after he heard the first gunshot. As that witness attempted to drive away, he saw the defendant and the other man running behind his car and shooting. We conclude that there was ample evidence to convict the defendant on the indictments charging assault by means of a dangerous weapon and on the various firearm charges.
b. Duplicative firearm convictions. The defendant asserts, and the Commonwealth concedes, that unlawful possession of ammunition without a firearm identification card is a lesser included offense of unlawful possession of a loaded firearm. We agree. See Commonwealth v. Johnson, 461 Mass. 44, 54 (2011). Although the sentences on the convictions of assault by means of a dangerous weapon, unlawful possession of a firearm, and threatening to commit a crime were to run concurrently with the sentence for unlawful possession of ammunition, we do not know whether the judge took the latter conviction into account in sentencing. Accordingly, the case is remanded for resentencing. See Commonwealth v. Ruggerio, 32 Mass.App.Ct. 964, 966 (1992).
c. Insufficient evidence of a firearm. Finally, we address the defendant's claim that the Commonwealth failed to prove that the weapon he used in the shooting at Golden Circle was a firearm. This argument lacks merit. We conclude that there was ample evidence to support the firearm conviction substantially for the reasons stated in the Commonwealth's brief at 35–36.
Conclusion. The judgment on the indictment charging unlawful possession of ammunition without a firearm identification card is vacated, the verdict is set aside, and the indictment is to be dismissed. The judgments of conviction on the indictments charging assault by means of a dangerous weapon, unlawful possession of a firearm, unlawful possession of a loaded firearm, assault and battery on a pregnant person, threatening to commit a crime, and witness intimidation are affirmed, the sentences are vacated, and the matter is remanded to the Superior Court for resentencing. The order denying the motion for new trial is affirmed.
So ordered.