Opinion
15-P-1002
02-14-2017
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 17, 1997, the defendant, Carlos Siniscalchi, was convicted of murder in the second degree on the theory of felony-murder. He was also convicted of the underlying felony of armed robbery, as well as breaking and entering in the nighttime, and unlawful possession of a firearm. The charges stemmed from an armed robbery of a fast food restaurant in West Springfield, during which an employee was killed. We affirmed the convictions in an unpublished memorandum and order issued pursuant our rule 1:28. See Commonwealth v. Siniscalchi , 48 Mass. App. Ct. 1121 (2000). Since then, the defendant filed two motions for a new trial, one in 2002 and another in 2007, both of which were denied by the trial judge. The defendant did not appeal from the denial of his first new trial motion. On appeal from the denial of his second new trial motion, the order was affirmed. See Commonwealth v. Siniscalchi , 71 Mass. App. Ct. 1105 (2008). In May, 2015, the defendant filed his third motion for a new trial. The trial judge's denial of that motion is the subject of this appeal.
The armed robbery conviction was vacated and the indictment dismissed as duplicative.
Background . The underlying facts are set forth in this court's prior decisions and need not be repeated in detail. It suffices to note the following: Over the course of a week in early August, 1995, the defendant, then twenty-one years old, and his friend Emmanuel Baldinakis planned a robbery of a Kentucky Fried Chicken restaurant in West Springfield. Another friend, seventeen year old Emmanuel Mavredakis, joined them when they executed the plan, on August 11, 1995. Late that night, the defendant gave Baldinakis a gun and drove the group to the restaurant. After waiting for the supervisor to turn out the lights and leave, Baldinakis and Mavredakis broke into the restaurant while the defendant waited in the car. Baldinakis and Mavredakis were inside when the supervisor unexpectedly returned, whereupon Mavredakis (who at some point had been given the gun) shot him several times, killing him.
They entered using a key that Baldinakis had from when he previously worked at the restaurant.
Discussion . The defendant advanced four arguments in support of his third motion for a new trial. He claimed that (1) evidence, in particular the firearm used in the murder, seized pursuant to a search warrant should have been suppressed because it was obtained in violation of Mavredakis's constitutional rights; (2) the life sentence imposed on the murder in the second degree conviction is unlawful, (3) the jury were improperly permitted to consider the consequences of their verdict; and (4) he is entitled to a new trial in order to present evidence on Mavredakis's developmental status as a juvenile, which, the defendant claims, bears on his own conviction of murder in the second degree.
Motions for a new trial may be granted if it appears that justice may not have been done. Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The "motion ... is addressed to the sound discretion of the judge ... whose disposition will not be upset unless shown not only to have been an abuse of that discretion but also to have produced a manifestly unjust result." Commonwealth v. Bowen , 63 Mass. App. Ct. 579, 583-584 (2005) (quotation omitted). Special deference is due to the motion judge's ruling where, as here, she was also the trial judge. Commonwealth v. Cowels , 470 Mass. 607, 615 (2015).
As a preliminary matter, we agree with the Commonwealth that the defendant is estopped from raising claims that he has already raised in his direct appeal and in his first two motions for a new trial. See Commonwealth v. Sowell , 34 Mass. App. Ct. 229, 230 (1993). With respect to the issues he raises for the first time in his third motion for a new trial, they are waived. See Commonwealth v. Roberts , 472 Mass. 355, 359 (2015). We are not persuaded by the defendant's claim that the grounds on which his third new trial motion is based could not reasonably have been raised earlier, nor do we discern a basis to apply any of the exceptions to the waiver doctrine. Our review as to all issues, including those cast as errors due to ineffective assistance of counsel, is for a substantial risk of a miscarriage of justice. See Commonwealth v. Azar , 435 Mass. 675, 685 (2002) ; Commonwealth v. Randolph , 438 Mass. 290, 295-296 (2002).
1. Suppression of evidence . In a separate trial, Mavredakis was convicted, among other offenses, of murder in the first degree. The convictions were reversed by the Supreme Judicial Court because the Commonwealth, in obtaining a warrant to search Mavredakis's home, relied on inculpatory statements obtained from Mavredakis in violation of his rights under art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Mavredakis , 430 Mass. 848, 849 (2000). Specifically, while the police were questioning Mavredakis at the station, they did not inform him that an attorney had attempted to contact him. Id . at 855-862. The defendant argues that he, too, should have standing to challenge the search warrant based on the violation of Mavredakis's constitutional rights.
This argument fails if only because the defendant's theory of standing, commonly called "target standing," is not available here. To begin with, the privilege against self-incrimination is a personal right which generally cannot be asserted by a third party. See Commonwealth v. Vacher , 469 Mass. 425, 438 (2015). More fundamentally, the defendant has not shown that the conduct of the police was "distinctly egregious" such that it is appropriate to confer target standing. Commonwealth v. Santiago , 470 Mass. 574, 578 (2015). And, lastly, the defendant has utterly failed to show, as required, that a motion to suppress likely would have met with success but for the alleged ineffective assistance of counsel. See Commonwealth v. Comita , 441 Mass. 86, 91 (2004).
The defendant did not establish that he, and not Mavredakis, was the real target of the police investigation, or that he had an expectation of privacy in the area that was searched or a possessory interest in the items seized.
Although not controlling, we observe that a motion to suppress filed by Mavredakis on remand was denied on the ground that the search warrant application established probable cause without Mavredakis's statements.
2. The lawfulness of the defendant's life sentence . As best we can understand, the defendant claims, first, that he should have been charged with being an accessory before the fact under G. L. c. 274, § 2. Second, he contends that had he been so charged, and if Mavredakis, who was seventeen at the time of the murder, had been tried as a juvenile, the maximum potential sentence either of them could have received was twenty years. This argument is flawed in many respects. We need not dwell on any of them because at the time the offenses were committed, Mavredakis was not a juvenile. He was seventeen years old, Mavredakis , 430 Mass. at 855 n.12, and therefore an adult under the law at the time. See G. L. c. 119, § 74, as in effect prior to St. 2013, c. 84, §§ 25, 26.
It is unclear if the defendant argues that he should have been tried under this statute or if he erroneously believes he was charged under the statute. In either event, his argument fails.
Had Mavredakis been tried as a juvenile, his maximum potential sentence would have been a twenty-year term of commitment. See G. L. c. 119, § 72, as in effect prior to St. 1996, c. 200, § 13. Because aiders and accessories before the fact must be punished "in the manner provided for the punishment of the principal felon," G. L. c. 274, § 2, as appearing in St. 1973, c. 529, § 1, the defendant, under the theory he espouses, would be subject to the same maximum sentence.
3. Felony-murder instructions . The defendant also contends that the judge erred in instructing the jury that the felony of armed robbery is inherently dangerous and punishable by a life term. He claims that, in doing so, the judge permitted the jury to consider the consequences of their verdict. The only error here inured to the defendant's benefit: the judge told the jury that the felony of armed robbery would support a felony-murder conviction in the second degree, whereas she should have instructed the jury that armed robbery would support a felony-murder conviction in the first degree. Armed robbery is among those felonies the Supreme Judicial Court has deemed to be "inherently dangerous," and, as such, a murder committed during the course of an armed robbery is adequate to support a conviction of murder in the first degree. Commonwealth v. Waldington , 467 Mass. 192, 208-209 (2014). The defendant does not claim that the instruction was erroneous in any other respect. There was no substantial risk of a miscarriage of justice.
Leaving this specific error aside, it was not erroneous, as a general matter, for the judge to instruct the jury as to the possible sentences that could be imposed for the underlying felony. That information was necessary for the jury to determine whether a felony-murder conviction would be in the first or second degree. See Commonwealth v. Garner , 59 Mass. App. Ct. 350, 357 n.7(2003).
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4. Evidence of Mavredakis's immaturity . Lastly, the defendant argues that because Mavredakis, the shooter, was seventeen years old, he, the defendant, should have been entitled to present evidence about juvenile brain development, and specifically, Mavredakis's developmental status at the time of the offense. The defendant's argument relies heavily on a recent decision of the United States Supreme Court, which held it unconstitutional for a juvenile to receive a life sentence without the possibility of parole. See Miller v. Alabama , 132 S. Ct. 2455, 2460 (2012). In reaching that conclusion, the Court considered at length the fundamental differences between the juvenile and adult mind, including children's "lack of maturity and an underdeveloped sense of responsibility," which leads to "recklessness, impulsivity, and heedless risk-taking." Id . at 2458 (quotation omitted). Based on that reasoning, the defendant contends that he should have been allowed to present evidence on Mavredakis's brain development and his mind as a seventeen year old.
This claim requires little discussion. Even if the defendant had presented such evidence, it would have no bearing on his own participation in the crime. Felony-murder is based, in part, on a person's decision to participate in an "inherently dangerous" felony or one that "reflects [a] conscious disregard for the risk to human life." Commonwealth v. Garner , 59 Mass. App. Ct. 350, 357 (2003). The evidence established that the defendant and Baldinakis spent approximately one week planning an armed robbery, and that the defendant was instrumental in supplying the gun, an inherently dangerous weapon. More to the point, once Mavredakis joined the group, his status as a seventeen year old, with an alleged penchant for recklessness, only heightened the risk that the plan would go awry, such as by Mavredakis ending up with the gun and killing somebody. The defendant's decision to execute the plan, notwithstanding being joined by an allegedly impulsive or reckless seventeen year old, only reinforces the conclusion that he acted with a conscious disregard for the risk to human life.
Order dated June 10, 2015, denying motion for new trial affirmed .