Opinion
13-P-617
03-19-2015
COMMONWEALTH v. RICARDO ROLON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of armed robbery while masked, G. L. c. 265, § 17, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b), and from the denial of his motion for new trial. He claims primarily that the trial judge's jury instructions regarding eyewitness identifications were deficient and that trial counsel was ineffective in challenging the defendant's identification by the victims of the robbery and of the assault. We affirm the convictions.
The trial judge gave defense counsel's requested instruction on honest but mistaken identifications and part of the requested instruction on cross-racial identification. The judge declined defense counsel's request for an instruction stating, "Scientific studies have shown that it is more difficult to identify members of a different race or ethnicity than members of one's own."
The judge's instructions on eyewitness identification were careful, comprehensive, and correct. With respect to cross-racial identification he specifically instructed, "You may consider this fact and whether identification of the defendant by a person of a different race from his race may be less reliable than an identification by a person as the same race as his."
We are mindful that the Supreme Judicial Court has recently instructed trial judges to give, in trials that begin after January 12, 2015, relevant portions of a provisional model jury instruction regarding eyewitness identifications. Commonwealth v. Gomes, 470 Mass. 352, 376 (2015). The provisional instruction includes language similar to that which defense counsel requested: "research has shown that people of all races may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race." Id. at 382. The trial judge was not required to give this instruction at the defendant's trial in November, 2012, however. "We intend the new instruction to have no retroactive application." Id. at 376. We find no error in the jury instructions on eyewitness identification, let alone any risk of a miscarriage of justice.
Nor was trial counsel ineffective for failing to call an expert witness to testify in this regard. Counsel reasonably believed that any request for funds to hire an expert would have been denied, and that the judge would not permit such an expert to testify. "[E]xpert testimony concerning the reliability of eyewitness identification is not admissible as of right, but is left to the discretion of the trial judge." Commonwealth v. Watson, 455 Mass. 246, 257 (2009). In his endorsement denying the motion for new trial, the judge concluded "that in the unique circumstances of this case, where the [robbery] victim knew [the defendant] and recognized him by his voice as well as his appearance, that the victim's ability to make an identification of the defendant could be assessed by the jury without help from an expert on eye-witness identification." See id. at 258-259 (noting that "in ruling on the defendant's motion for a new trial, the judge was not persuaded that [expert testimony on identification] necessarily would have been admitted," and affirming denial of new trial motion based on claim that defense counsel was ineffective for failing to seek funds for expert).
As in Commonwealth v. Watson, supra at 257-258, defense counsel vigorously attacked the victims' identifications of the defendant. He introduced the theme of honest but mistaken identification in the first sentence of his opening statement. He established during cross-examination of the assault victim how little time this witness had to view the defendant's face; that the witness was scared, "in shock," and "praying" during the incident; and that his assailant pointed a gun at him, ordered, "Don't look at me," and the witness obeyed. The witness also testified on cross-examination that he selected the photograph of someone other than the defendant out of a six-photograph array, which defense counsel introduced in evidence. In addition, defense counsel elicited testimony through the chief investigating officer that three other eyewitnesses were unable to select the defendant's photograph from an array.
His cross-examination of the robbery victim also stressed her inability to get a good look at the robber, how scared she was, and her admission that she had some doubt about the accuracy of her identification of the defendant. Defense counsel then effectively marshalled these points in summation. Finally, as discussed above, he requested and vigorously argued for cautionary instructions on eyewitness identification consistent with the defense.
Accordingly, the trial judge did not err in denying the new trial motion based on ineffective assistance without an evidentiary hearing. Trial counsel's efforts put the Commonwealth's evidence through meaningful adversarial testing. The defendant's claims of substandard performance, including the decision not to attempt to introduce expert testimony discussed above, did not raise any errors or omissions that fell "measurably below that which might be expected from an ordinary fallible lawyer" or that caused the loss of a substantial defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "Invariably the lawyer who refights a campaign on the written record finds ways to fight it better. . . . The purpose of the right to counsel . . . is, however, something less than a guarantee of a perfect defense; rather it is to insure a fair trial." Commonwealth v. McGann, 20 Mass. App. Ct. 59, 61 (1985).
One other allegation of ineffective assistance warrants comment. The defendant argues that trial counsel was ineffective for failing to object to the in-court identification made by the assault victim, who failed to select the defendant's photograph from the array. Although such an objection would have had a reasonable prospect of success if the defendant's trial had taken place after December 17, 2014, the date that the Supreme Judicial Court issued Commonwealth v. Collins, 470 Mass. 255, 266 (2014) (creating a rule for future cases governing admissibility of in-court identifications "where an eyewitness to a crime has not made an unequivocal positive identification of the defendant before trial"), counsel's lack of clairvoyance does not amount to ineffective assistance. As in Collins, "defense counsel was not ineffective for failing to make an objection that would have been futile under the prevailing case law." Id. at 261.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 19, 2015.