Opinion
10-P-606
11-01-2011
COMMONWEALTH v. ARISTEDES RUIZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 3, 1999, a Superior Court jury convicted the defendant, Aristedes Ruiz, of trafficking in 200 grams or more of cocaine, and trafficking in one hundred grams or more of heroin. The judgments were affirmed by this court, see Commonwealth v. Ruiz, 57 Mass. App. Ct. 1108 (2003), and a petition for further appellate review was denied, see 439 Mass. 1105 (2003).
The defendant filed numerous motions for postconviction relief including a motion for a new trial. On May 11, 2005, after the appointment of current counsel, the defendant withdrew his previous motion for a new trial and replaced it with two other motions for a new trial. One motion requested a new trial based on newly discovered evidence; the other requested a new trial based on ineffective assistance of counsel. The defendant also requested that the judge conduct evidentiary hearings on each motion. The motion judge, who was not the trial judge, denied the motions, and, with the exception of one issue, did not hold evidentiary hearings.
On appeal, the defendant claims that the motion judge committed error in denying his motion for a new trial based on newly discovered evidence because she failed to conduct an evidentiary hearing. The defendant also claims the motion judge committed error in denying his motion for a new trial based on ineffective assistance of counsel.
Background. As a result of information from a confidential informant (C.I.), the police conducted surveillance of an apartment in the Mattapan section of Boston. Two individuals, one Donnie Berry and the defendant, occupied the apartment. Several controlled buys were made by the C.I. from both individuals over the course of the fourteen-month investigation. Based upon this investigation, the police obtained a search warrant.
On April 17, 1998, the police were in the area of the apartment preparing to execute the search warrant. They observed two individuals leave the apartment, one of whom was the defendant. He entered a vehicle and drove away, but stopped for some reason about 200 to 300 yards from the apartment. At that point, the police arrested the defendant and executed the search warrant at the apartment. Some of the drugs were found behind a wall.
Berry was also a subject of an indictment for trafficking in cocaine and in heroin as a result of the execution of the search warrant. His case was dismissed based in part on the failure of the prosecutor to inform the grand jury of the defendant's role in the same events.
Discussion. A. Newly discovered evidence. In his motion for a new trial based on newly discovered evidence, the defendant claims that Berry possesses exculpatory evidence and if he were compelled to testify, he would state that the defendant did not live in the apartment, was not aware of drugs secreted behind the wall, and was innocent of all the charges. A series of documents accompanied the motion, including an affidavit from one John Eason, who stated that he knew both Berry and the defendant, and that the defendant did not live at the apartment that was the subject of the search warrant, but at another apartment in Mattapan with his wife and his child. Eason stated that he recently had spoken with Berry, who admitted that he was living at the apartment at the time of the search and that the defendant was innocent.
Berry's alleged statement that the defendant did not live at the apartment did not contradict the Commonwealth's evidence at trial.
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'A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction.' Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The motion judge ruled that the evidence was newly discovered because Berry's whereabouts were unknown at the time of trial. Nevertheless, she concluded that the evidence did not raise real doubt as to the justice of the defendant's conviction. We agree.
'A defendant . . . bears the burden of demonstrating that any newly discovered evidence is admissible.' Commonwealth v. Weichell, 446 Mass. 785, 799 (2006), citing Commonwealth v. Lopez, 433 Mass. 406, 416 (2001). Eason's statements relating Berry's statements to him were inadmissible hearsay. We also note that there was no affidavit from Berry himself, nor has the defendant represented that he attempted to obtain an affidavit from Berry. The motion judge also observed that the Commonwealth did not try the case on the theory that the defendant owned or lived at the searched apartment. Rather, the Commonwealth claimed that the defendant was a drug dealer, Berry was a runner for him, and that the apartment was used to store the drugs.
We also reject the defendant's claim that the motion judge committed error by not conducting an evidentiary hearing on this motion. 'Whether to conduct an evidentiary hearing falls within the discretion of the motion judge.' Commonwealth v. Raymond, 450 Mass. 729, 733 (2008). In order to warrant an evidentiary hearing, the defendant must make a sufficient showing of a substantial issue. Commonwealth v. Britto, 433 Mass. 596, 608 (2001), citing Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). Here, the defendant failed to make the necessary factual showing of a substantial issue.
B. Ineffective assistance of counsel. The defendant claims that his trial counsel was constitutionally ineffective for, among other things, not attacking the 'integrity of the search warrant.' In support of his second motion for a new trial, the defendant requested a evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The motion judge issued a series of orders for the production of certain Boston police department documents relating to the controlled buys described in the affidavit supporting the application for the search warrant. After review of the documents, the motion judge conducted an evidentiary hearing regarding any possible discrepancies between the police documents concerning the controlled buys and the information contained in the affidavit.
Three Boston police officers testified at the motion hearing in regard to the controlled buys. After the hearing, the motion judge ruled that there were three independent controlled buys involving the defendant in the searched apartment. Because only a single controlled buy is necessary to establish probable cause to support a search warrant, the motion judge ruled that the search warrant was valid. Therefore, we agree that trial counsel was not ineffective for failing to challenge the integrity of the search warrant. See Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996).
The motion judge did not address other specific claims of ineffective assistance of counsel in her findings but did rule that counsel was not ineffective, thus impliedly rejecting those claims of error. After reading the defendant's brief, we agree with the Commonwealth that the defendant's claims have no merit.
Order entered November 10, 2008, denying motions for a new trial affirmed.
By the Court (Mills, Smith & Wolohojian, JJ.),