Opinion
18-P-1707
11-22-2019
COMMONWEALTH v. Sampurna THAPA-CHHETRI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of carrying a firearm without a license and possession of ammunition without a firearm identification card. The convictions were based on evidence that the defendant, during the course of a disagreement with a taxicab driver (driver), displayed a firearm to the driver by banging it against the partition dividing the front and back seats of the taxicab. Ultimately, the firearm was recovered by police after the driver reported that the defendant had discarded it in bushes after exiting the taxicab. The defendant appeals from the judgments, claiming that the prosecutor's closing argument was improper, that the judge should have held a hearing regarding the voluntariness of the defendant's statements, and that the convictions violated his Second Amendment to the United States Constitution and equal protection rights. The defendant also appeals from the orders denying his motions for reconsideration, funds, postconviction discovery (third request), and new trial, claiming that the judge committed error in denying those motions. We affirm.
Discussion. 1. Postconviction discovery. The defendant's second motion for postconviction discovery, made pursuant to G. L. c. 278A, sought production of the driver's fingerprints for analysis and comparison with the latent fingerprint recovered from the firearm. We review the denial of such a motion de novo. Commonwealth v. Wade, 467 Mass. 496, 505-506 (2014). A motion seeking scientific testing pursuant to G. L. c. 278A must include information that the evidence or biological material had not been subjected to the requested analysis for at least one of five enumerated reasons: (1) the requested analysis had not been developed at the time of the conviction, (2) the results of the requested analysis were not then admissible, (3) the defendant and his attorney were not aware of and did not have reason to be aware of the existence of the evidence at the time of the conviction, (4) if the evidence was known at the time of the conviction and admissible, a reasonably effective attorney would have sought the analysis and either the attorney failed to do so or the judge denied the request, or (5) the evidence was otherwise unavailable at the time of the conviction. G. L. c. 278A, § 3 (b ) (5).
Here the defendant failed to establish any of the enumerated criteria. At the time of his conviction, fingerprint analysis was a developed forensic science and its results were admissible in court. The defendant at that time could have sought the driver's fingerprints for comparison pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979). See Lenardis v. Commonwealth, 452 Mass. 1001, 1001 (2008) ; Jansen, petitioner, 444 Mass. 112, 116-119 (2005). Nonetheless, as we discuss below, there were sound strategic reasons to avoid such fingerprint comparison. Accordingly, the defendant's motion for reconsideration of the order denying his second motion for postconviction discovery was properly denied.
The defendant's third motion for postconviction discovery, made pursuant to Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001), requested a subpoena to the Boston Police Department (BPD) for the driver's fingerprint records. In the alternative, the defendant requested that the driver submit to fingerprinting to create an exemplar. We review the judge's order denying the defendant's motion for postconviction discovery under rule 30 (c) for abuse of discretion. See Commonwealth v. Camacho, 472 Mass. 587, 598 (2015).
The defendant claims that the driver's fingerprint record constitutes newly discovered evidence because the BPD began fingerprinting all taxicab drivers after the defendant's trial. The record before us does not establish that the requested fingerprint record is, in fact, contained within the BPD data base.
Here, the judge concluded that the defendant was not entitled to the requested discovery because, among other reasons, there was no evidence that the driver ever touched the firearm, the trooper's mishandling of the firearm likely destroyed any fingerprints on the firearm, and the defendant argued at trial that the absence of fingerprint testing created a reasonable doubt of the defendant's guilt. We agree that, for these reasons, the defendant failed to make a sufficient showing that the discovery requested was reasonably likely to uncover evidence that might warrant granting a new trial. See Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). Thus, the denial of the third motion for postconviction discovery was within the judge's broad discretion.
2. Motion for new trial. A "judge ... may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We "examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We extend special deference to the motion judge where, as in this case, she was also the trial judge. See id.
a. Newly discovered evidence. "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." Grace, 397 Mass. at 305. To qualify as newly discovered evidence, the evidence must have been "unknown to the defendant or trial counsel and not reasonably discoverable at the time of trial." Commonwealth v. Cowels, 470 Mass. 607, 616 (2015), quoting Commonwealth v. Shuman, 445 Mass. 268, 271 (2005).
The defendant claims that the driver's fingerprints in the BPD data base are newly discovered evidence. We disagree. Even assuming that the defendant could show that the driver's fingerprints are now included in a data base maintained by the BPD, he has not shown that the driver's fingerprints were not reasonably discoverable at the time of trial. As set forth above, the defendant could have sought production of the driver's fingerprints at the time of trial pursuant to Mass. R. Crim. P. 17 (a) (2). Accordingly, the possible existence of the driver's fingerprints in a new data base is not newly discovered evidence.
b. Ineffective assistance. "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). "A lawyer's ‘arguably reasoned tactical or strategic judgments,’ do not amount to ineffective assistance of counsel unless they are ‘manifestly unreasonable’ when made" (citations omitted). Commonwealth v. Ortega, 441 Mass. 170, 175 (2004).
The defendant first claims that trial counsel was ineffective for failing to seek the driver's fingerprints for comparison to the latent fingerprint found on the gun. We are not persuaded. The defendant relied on the absence of fingerprint evidence at trial to argue to the jury that the police investigation was flawed and that deficiencies in the investigation should create a reasonable doubt of the defendant's guilt. Further testing of the firearm by the defense may well have undercut that argument. In these circumstances, we see no abuse of discretion in the judge's conclusion that the decision not to seek further fingerprint analysis was "a clear strategic decision." Here, that strategic decision was not manifestly unreasonable.
We note that the defendant's claim of ineffective assistance was "conspicuously marred by failing to include an affidavit from ... [trial] counsel." Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 553-554 (2002).
The defendant also claims that trial counsel's advice that the defendant should not testify at trial was ineffective assistance. We disagree. The defendant claims that he would have testified that he saw the driver in possession of the firearm on the night of his arrest. Such testimony would have been directly inconsistent with evidence that the defendant told the trooper that "[h]e had no knowledge of the weapon," and would have allowed the prosecutor to impeach the defendant with his prior inconsistent statement. On these facts, advising the defendant not to testify was a sound strategic decision.
3. Closing argument. The defendant claims that the prosecutor engaged in improper argument by (a) impermissibly vouching for a witness, (b) arguing a fact that was not in evidence, and (c) referring to inadmissible character testimony. Because the defendant did not object on any of these bases at trial, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Fowler, 431 Mass. 30, 41 n.19 (2000).
a. Vouching. "Improper vouching occurs if ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.’ " Commonwealth v. Felder, 455 Mass. 359, 368 (2009), quoting Ortega, 441 Mass. at 181. Here, when considered in context, the prosecutor's argument that the driver testified "believably," although inartfully phrased, was not an expression of the prosecutor's personal opinion, but a response to the defendant's attack on the driver's credibility. See Commonwealth v. Smith, 450 Mass. 395, 408 (2008), quoting Commonwealth v. Chavis, 415 Mass. 703, 713 (1993) ("A prosecutor is permitted to ‘make a fair response to an attack on the credibility of a government witness’ ").
b. Fact not in evidence. In his closing argument, the prosecutor stated, "It is hard to recover [fingerprints] on certain surfaces. It is more difficult when the night is cold, as it was on that night." This fact, the defendant claims, was not in evidence. We disagree. On direct examination Trooper Crump testified that weather could be a factor affecting whether fingerprints are left on a surface. The evidence showed that the firearm was recovered at night in April. The prosecutor's statement that the cold affected the transfer of the defendant's fingerprints was a permissible inference from this evidence. See Commonwealth v. Drayton, 386 Mass. 39, 52 (1982) ("prosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it").
c. Character evidence. The defendant claims that in the opening statement and again in closing argument, the prosecutor improperly referenced the defendant's sexual advances toward a female passenger in the taxicab. Specifically, he argues that such statements constitute inadmissible character evidence and warrant a new trial. We disagree. The driver testified that the defendant appeared intoxicated and was trying to touch his female companion who was resisting. The prosecutor's comment that the defendant was "trying ... to take this young lady home" was a reasonable inference from the evidence and, considered in context, was more a comment on the defendant's state of mind than his character. See Commonwealth v. Squailia, 429 Mass. 101, 105-106 (1999).
Finally, the jury were correctly instructed that their decision must be based on the evidence, that the arguments of counsel were not evidence, and that they should not be swayed by prejudice or sympathy. We presume the jury followed those instructions. See Commonwealth v. Gonzalez, 465 Mass. 672, 681 (2013). For all of these reasons, we discern no error in the prosecutor's argument, much less a substantial risk of a miscarriage of justice.
4. Voluntariness of statements. The defendant claims for the first time on appeal that he was so drunk that his statements to the trooper were involuntary. He argues that the judge erred in failing to hold a hearing to determine the voluntariness of those statements. However, because the defendant failed to raise the issue of the voluntariness of his statements, the judge was not required to conduct a hearing unless there was a substantial claim of involuntariness. See Commonwealth v. Pavao, 46 Mass. App. Ct. 271, 273-274 (1999). Here, although there was some evidence that the defendant was under the influence of alcohol, it did not rise to the level of a substantial claim of involuntariness.
We also discern no error in the judge's failure to, sua sponte, instruct the jury to disregard the defendant's statements unless the jury found that "the Commonwealth proved beyond a reasonable doubt that the statements were voluntary." Commonwealth v. Murphy, 426 Mass. 395, 399 (1998). Such an instruction is required only where the voluntariness of the defendant's statements is a "live issue" at trial." Pavao, 46 Mass. App. Ct. at 274. Here it was not.
The defendant also claims that his convictions violate his Second Amendment and equal protection rights. We decline to consider constitutional issues raised for the first time on appeal. See Commonwealth v. Guzman, 469 Mass. 492, 500 (2014). Were we to reach the merits of these constitutional claims, we would reject them, essentially for the reasons set forth in the Commonwealth's brief.
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Judgments affirmed.
Order denying motions for reconsideration, funds, postconviction discovery (third request), and new trial affirmed.