Opinion
No. 15–P–699.
10-25-2016
COMMONWEALTH v. Demetric WADDY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Demetric Waddy, appeals from the denial of his motion for a new trial claiming ineffective assistance of counsel. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). He alleges that his trial attorney failed to hire an expert to contest the victim's eyewitness identification and thereby denied him a substantial ground of defense. We disagree and affirm.
Background. The case against the defendant was tried to a jury together with cases against Catava Gee and Issiah Williams. The jury could have credited the following facts. The victim, Mark Watts, had used crack cocaine, among other narcotics, habitually for thirty years. On December 4, 2009, the victim was on the final day of a three-day binge during which he also drank alcohol and smoked marijuana that may have been laced with opiates. He had just smoked crack cocaine and was driving his car in Springfield in search of more drugs, when he saw Gee, who he recognized from previous encounters, on Terrance Street. Gee gestured or called to him, the victim stopped to speak with her, and she offered to share her drugs if the victim would give a ride to her and her two “brothers,” who were standing nearby. The victim agreed. He recognized the smaller of the two men as the defendant, whom he had interacted with on more than one previous occasion. The victim drove them to Gee's apartment and the four went inside.
Williams was found not guilty at trial. Gee was convicted on all charges against her.
Gee then became violent, punched the victim on the side of the head, and asked him, “Where's it at, Mark?” The victim believed she was seeking either money, drugs, or bank cards, none of which the victim had on him. The larger man restrained the victim in a bear hug while the smaller man locked the door and stabbed him with a screwdriver. Gee obtained a kitchen knife, sliced the victim's face, ripped off his clothes, and stabbed him in the rectum as he attempted to crawl to the door while the smaller man was blocking his way. Gee took the victim's car keys and his wallet. The victim then crawled outside and to the nearest adjoining duplex, his cries for help prompting a neighbor to call the police. As he lay bleeding and naked outside, he heard Gee and the two men go to his car, trigger the car alarm, and drive the car away.
Police found the victim on the front steps of a residence nearby. An officer located a knife covered in wet blood inches from the victim's feet. Detectives photographed the scene, including blood smeared on the ground outside, on the stairwell, and on the walls of Gee's apartment; they also recovered mail addressed to Gee, as well as the victim's clothes, shoes, and his wallet and its contents. Due to his injuries, the victim was not able to provide information to the police in the immediate aftermath of the attack. When released from Baystate Medical Center around December 14, 2009, the victim was bedridden and prescribed opiate pain medication, and had bleeding in his brain. At the time of trial, his face was still scarred and he still needed a colostomy bag due to injuries sustained during the attack.
On December 18, 2009, Detective Trent Duda met the victim at his home and administered a photographic array including Gee and six or seven others. The victim selected Gee's photograph from the array. The detective believed the victim was not impaired in any way, and that he was alert and able to answer questions appropriately. The victim also testified that he was “not mentally impaired” in any way, although he was under the influence of numerous medications related to his medical conditions. After identifying Gee, the victim described the two male attackers as both black, one large and older near fifty years old, and one smaller and younger near thirty years old.
On December 28, 2009, the victim went to the police station to view a database of 4,398 photographs of “black males between the age of thirty and fifty.” Each photograph was numbered, and appeared on the screen ten at a time while the victim sat at a computer terminal to observe them. The victim testified that he was not tired or “blurry eyed” while viewing the photographs. He admitted that he was under the influence of morphine as well as other painkillers at that time, but he did the best he could to accurately identify his assailants. Detective Duda formed the impression that the victim was alert, focused, and able to communicate clearly during this visit to the police station. After one to two hours, the victim selected a photograph of the second male who he had described earlier as the older man. He then selected a photograph of the defendant, stating that he was “100 percent sure” that the defendant was the younger man. The victim also signed a statement, which indicated that he had “seen the two black guys before on the streets but [had] never hung out with them.”
A grand jury was convened on February 10, 2010, at which the victim and Detective Duda testified. In front of the grand jury, the victim testified that he had been one hundred percent sure that the defendant was the younger male who stabbed him with the screwdriver. He also testified that he had recognized the defendant as someone he had seen before near the Belmont and Orange Street areas in 2006 and 2007, but not since then. The victim's December 28 statement was also read aloud to the grand jury.
On February 11, 2010, the defendant was indicted in Superior Court on charges of armed robbery, armed assault with intent to murder, assault and battery by means of a dangerous weapon causing serious bodily injury, assault and battery by means of a dangerous weapon, simple assault and battery, and larceny of a motor vehicle.
The case against the defendant and Williams was based solely on the victim's identification of their photographs. At trial in October, 2010, the main defense was one of mistaken and/or impaired identification. Counsel for the defendant rigorously attacked the victim's ability to recall the December 4, 2009, attack while he was impaired by cocaine and other substances. The defense also questioned his ability to accurately select the defendant's photograph on December 28 while he was impaired by morphine, oxycodone, and other prescription medications. The defendant was convicted of armed robbery, assault and battery by means of a dangerous weapon, and simple assault and battery. His convictions were affirmed on direct appeal to this court in an unpublished decision pursuant to our rule 1:28. See Commonwealth v. Waddy, 81 Mass.App.Ct. 1132 (2012).
The police who processed the crime scene did not collect blood samples or fingerprints, nor did they perform deoxyribonucleic acid testing on the bloody clothes. A latent fingerprint found on the owner's manual located on the floor of the victim's stolen car was identified as the victim's. A palm print lifted from the vehicle's passenger side window frame was matched to Gee. Other prints from the vehicle did not match Williams or the defendant.
In October, 2014, the defendant filed a motion for a new trial, alleging several bases for ineffective assistance of counsel, including his trial attorney's failure to involve an expert on eyewitness memory. The motion judge denied the defendant's motion without an evidentiary hearing. The motion judge found, in relevant part, that the victim's ability to recall despite his impairment was fully and fairly explored at trial, and that trial counsel was not ineffective for failing to hire an expert because the defendant was not a stranger to the victim. The motion judge also denied the defendant's subsequent motion for reconsideration on the same grounds.
The motion for a new trial also contained several other arguments not renewed on this appeal.
Discussion. As a preliminary matter, the Commonwealth argues that the defendant's arguments are waived because he failed to argue on direct appeal the issue of defense counsel's failure to call an eyewitness identification expert. “[O]ur courts strongly disfavor raising claims of ineffective assistance of counsel on direct appeal .” Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). The narrow exception is “when the factual basis of the claim appears indisputably in the trial record.” Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994). See, e.g., Commonwealth v. Filoma, 79 Mass.App.Ct. 16, 23–24 (2011) (court may reach ineffective assistance claim raised on direct appeal where resolution is readily apparent on record). We do not think the trial record was so clear that the defendant should be faulted for not raising his ineffectiveness claim on direct appeal, and therefore proceed to consider the merits of the motion for a new trial.
We review under the familiar Saferian standard. Commonwealth v. Saferian, 366 Mass. 89 (1974). A defendant asserting ineffective assistance of counsel must show that the attorney's conduct fell “measurably below that which might be expected from an ordinary fallible lawyer” and that his conduct “likely deprived the defendant of an otherwise available, substantial ground of defence.” Id. at 96.
In assessing whether an expert witness would have contributed in a material way to the defense, the first issue we must address is the validity of the motion judge's finding that “the defendant was not a stranger to the victim.” The victim testified that he saw the defendant “more than once” before the crime and “had a conversation” with him near Orange Street. The victim also testified that when he saw the defendant and Williams, he immediately recognized the defendant. Under these circumstances, the motion judge's finding was not clearly erroneous. See Commonwealth v. Jones, 9 Mass.App.Ct. 83, 88 n. 9 (1980) ; Commonwealth v. Russell, 19 Mass.App.Ct. 940, 941–942 (1985).
The circumstances of this out-of-court identification are also significant in that the victim testified that he was not nervous about being in the defendant's company before the attack inside Gee's apartment commenced. There was no evidence that there was any environmental factor that interfered with the victim's opportunity to observe the defendant on the street before the group entered Gee's apartment.
The defendant argues that an expert witness on eyewitness identification procedures would have educated the jury about scientific principles which influence the reliability of identifications, including “estimator variables” and “systemic variables.” We do not agree that such testimony “might have accomplished something material for the defense” in this case, see Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977), because the factual underpinnings of these principles were fully explored at trial even though this case was tried prior to the publication of the Supreme Judicial Court Study Group Report on Eyewitness Evidence: Report and Recommendations to the Justices (July 25, 2013) and the seminal decisions in Commonwealth v. Crayton, 470 Mass. 228 (2014), Commonwealth v. Collins, 470 Mass. 255 (2014), and Commonwealth v. Gomes, 470 Mass. 352 (2015).
Estimator variables are factors inherent in the event such as environmental conditions and characteristics of the witness. Systemic variables are factors that the criminal justice system can influence, such as the order in which photographs are presented and other protocols followed during the array. Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices 16 (July 25, 2013).
The record before us supports the motion judge's view that the victim's ability to perceive his attackers and to recall their identity was forcefully probed at trial by all the attorneys. Defense counsel argued throughout the trial that what are now termed “estimator variables,” including the victim's drug and alcohol use and lack of sleep, impaired his perceptive abilities during the attack. Counsel also challenged the victim's identification of the defendant's photograph on December 28 as unreliable because his drug use impaired his memory, he was severely injured, and he was under the influence of prescription medications. With such argument presented forcefully and repeatedly, an expert witness would not have substantially aided the jury's evaluation of the victim's out-of-court identifications. While an expert witness may at times make a significant contribution to a defendant's case, it is not per se ineffective assistance of counsel to try an eyewitness identification case without the aid of an expert witness. See Commonwealth v. Watson, 455 Mass. 246, 257–258 (2009) ; Commonwealth v. Snyder, 475 Mass. 445, 451 (2016).
The jury were fully charged on identification evidence in accordance with the applicable case law then in force, including an instruction on “honest but mistaken identification” in accordance with Commonwealth v. Pressley, 390 Mass. 617, 620 (1983).
Moreover, this case does not involve allegations of any suggestive identification procedures. The police had no suspects for the two black males prior to the December 28 identification. Therefore, as the Commonwealth points out, what are now termed “systemic variables” concerning the propriety of identification protocols, including a “target” photograph of a suspect previously identified by police, were irrelevant.
We conclude that the failure by defendant's counsel to hire or to seek funds to engage the services of an expert witness was not manifestly unreasonable, and there has not been a showing that as a result the defendant lost an available, substantial ground of defense. There was no abuse of discretion in the denial of the defendant's motion for a new trial.