Opinion
No. 12–P–892.
2013-06-21
COMMONWEALTH v. Artem VASKANYAN.
By the Court (COHEN, GREEN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2001, a Superior Court jury convicted the defendant of various offenses arising from an armed home invasion in Springfield. While his direct appeal was pending, the defendant filed a motion for new trial, which was denied after a hearing by the trial judge. We consolidated the two matters and affirmed the convictions and the order denying the motion for new trial in an unpublished memorandum and order issued pursuant to our rule 1:28. See Commonwealth v. Vaskanyan, 78 Mass.App.Ct. 1103 (2010). Thereafter, with new appellate counsel, the defendant filed a second motion for new trial, claiming that (1) the judge erred by refusing to provide jury instructions on identification as requested by trial counsel, and (2) the prosecutor improperly used prior inconsistent testimony to refresh the memory of a witness and then compounded the error by suggesting in her closing argument that the jury should consider that testimony for purposes other than evaluating the witness's credibility. The defendant also alleged that trial counsel was ineffective in any failure to preserve the second issue, and that the defendant's first appellate counsel (who was not trial counsel) was ineffective in failing to raise these two issues in either the defendant's direct appeal or the first motion for new trial. That motion was likewise denied by the trial judge. With regard to the alleged trial errors, we agree with the Commonwealth that both claims of error have been waived because they were known and available to the defendant at the time of his direct appeal and the first motion for new trial. See Commonwealth v. Watson, 409 Mass. 110, 110 (1991). Although a judge may, in the exercise of her discretion, allow a defendant to raise an issue which could have been raised in earlier proceedings, the Supreme Judicial Court has “recommended restricting the exercise of that power to ‘those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.’ “ Id. at 112, quoting from Commonwealth v. Harrington, 379 Mass. 446, 449 (1980). Here, as the motion was summarily denied, it is apparent that the judge determined this was not an extraordinary case. That decision, in our view, did not result in “manifest injustice.” Commonwealth v. Watson, supra at 115.
We now turn to the defendant's ineffective assistance of counsel claims. Claims of error that have been waived due to omissions by defense counsel are reviewed under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Kilburn, 438 Mass. 356, 360 (2003). A brief summary of the evidence presented to the jury will suffice to put our discussion of this issue in context.
On Halloween night in 1999, three men posing as trick-or-treaters forced their way into the home of Ahmet Akin. During the ensuing robbery, Akin was beaten and shot while trying to protect his daughter, Fulia. The intruders wore masks and, as a result, neither victim was able to describe the robbers or identify them. Ultimately, one of the men, Alexi Koba, confessed and identified the defendant and Maksim Lutskov as his accomplices. Koba testified at trial for the Commonwealth and provided significant details as to the planning and execution of the robbery. Another witness, Alexander Arkapov, testified before the grand jury that the defendant had been present in his apartment, which he shared with Lutskov, on the night of the robbery. He also stated that he saw the defendant and the others putting on Halloween costumes. At trial, however, Arkapov failed to recall his grand jury testimony and claimed that he was too drunk that night to remember anything. Reluctantly, Arkapov identified the defendant in court as “[a] friend,” but maintained that he was unsure whether he saw the defendant at his apartment on the evening of October 31, 1999.
1. Identification. Defense counsel requested that the judge give an instruction on identification and objected when the judge declined to do so. The judge explained that the instruction was unnecessary because the victims had not made an identification. Although counsel had requested a general instruction on identification, the defendant now claims that the judge erred because there was a possibility that, due to his intoxication, Arkapov misidentified the defendant.
Assuming without deciding that an instruction on the topic of identification should have been given to the jury, the error did not create a substantial risk of a miscarriage of justice. The defendant was identified as one of the robbers by Koba, who admitted that he committed the crime with the defendant (and Lutskov), whom he knew well. Thus, the critical question for the jury was whether Koba was telling the truth about the defendant's participation in the crime. Indeed, the primary defense at trial was to discredit Koba. Similarly, as to Arkapov's testimony, the issue before the jury was whether Arkapov was telling the truth when he claimed that he could not remember whether the defendant had been at his apartment on the night of the robbery. See Commonwealth v. Pressley, 390 Mass. 617, 619 (1983) (“There may be cases in which the parties are so well known to each other” that an identification instruction is unnecessary). In sum, because identification was not a central issue in the case, the absence of an instruction on identification did not create a substantial risk of a miscarriage of justice.
2. Arkapov's grand jury testimony. We are not persuaded by the defendant's argument that the prosecutor misused Arkapov's prior testimony before the grand jury to refresh his memory. Even if we were to conclude otherwise, any error was sufficiently neutralized by the judge's final charge to the jury. The judge correctly explained that prior inconsistent statements of a witness are relevant only for purposes of assessing the witness's credibility. See Commonwealth v. Wallace, 460 Mass. 118, 120 n. 2 (2011).
As to the prosecutor's remarks in closing argument about Arkapov's testimony, we conclude that any error did not create a substantial risk of a miscarriage of justice. As noted, the judge gave an accurate limiting instruction on the use of prior inconsistent statements. This instruction, coupled with the judge's instruction about arguments of counsel, served to eliminate any risk of a miscarriage of justice. See Commonwealth v. Choeurn, 446 Mass. 510, 523 (2006).
Order denying second motion for new trial affirmed.