Opinion
21-P-692
10-05-2022
COMMONWEALTH v. CARLOS RAMON ZAPATA.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of aggravated rape, two counts of assault and battery by means of a dangerous weapon, and kidnapping. On appeal the defendant argues that the trial judge erred in denying his motion for a mistrial and that he was deprived of effective assistance of counsel. We affirm.
1. Motion for mistrial.
On the second day of jury deliberations, the judge informed the parties that the courthouse was partially closed because an employee of the Superior Court clerk's office had been exposed to COVID-19. The judge explained that the employee's coworkers had been told not to report to work and "the District Court then took it upon [itself] to close," which was "why the building appear[ed] to be relatively empty." The defendant moved for a mistrial, claiming that the unusually empty building might affect the jurors' ability to properly deliberate. The judge denied the motion on grounds that "extraordinary steps" had been taken to ensure that the jurors did not see any "signs or indications that any offices in [the] building . . . were closed" and that there was no "manifest necessity for a mistrial."
The defendant's first attorney then asked that the judge generally inquire of the jurors whether they had read or heard anything that might affect their ability to deliberate. After the judge agreed to do so, the defendant's second attorney arrived in the courtroom and, with the first attorney's agreement, requested that the judge fully apprise the jury of the situation in the building. Acceding to that request, the judge informed the jury of the circumstances of the court employee's COVID-19 exposure, explaining that the employee had been in the building only one day that week, was not in the courtroom during the trial, and had no reason to be in the jury deliberation room. The judge further explained that court staff had conducted a "deep cleaning" of the building, including the courtroom and the jury deliberation room. He then instructed the jurors as follows:
As discussed further below, the defendant hired a second attorney shortly before the start of trial.
"[T]he most important thing here is I want to make sure that that information does not interfere with your ability to deliberate in this matter fairly, impartially, and thoroughly, taking as much time as you need, because I'm
instructing you that that's what you must do. And if there is any information that you wish to bring to my attention, anyone has any concerns in that regard, you can communicate that to me. . . .
"If there's anyone who feels that it should -- despite my instructions, would interfere with your ability to deliberate fairly, impartially, and thoroughly, then you can bring it to my attention.
"Okay. With that, I'm going to ask you to please resume your deliberation and take as much time as you need. . . . [Y]ou should not feel any pressure. . . . [W]e're doing our best to look after everyone in the building's safety."
The defendant now argues that the judge erred by not declaring a mistrial because the information about the court employee's COVID-19 exposure, and news about the partial courthouse closure and the COVID-19 pandemic generally, led the jury to reach a rushed verdict. Relatedly, the defendant argues that the judge erred by not conducting, sua sponte, individual voir dire of the jurors to inquire whether they learned any information about the pandemic that would interfere with their ability to deliberate fairly and impartially.
We review the denial of a motion for a mistrial for an abuse of discretion. See Commonwealth v. Bryant, 482 Mass. 731, 739 (2019). "The trial judge is in the best position to assess any potential prejudice and, where possible, to tailor an appropriate remedy short of declaring a mistrial." Commonwealth v. Martinez, 476 Mass. 186, 197 (2017). Here, the judge was within his sound discretion to find that there was no need for the "extreme measure" of a mistrial. Commonwealth v. Amran, 471 Mass. 354, 360 (2015). In his careful and thorough instruction, the judge reassured the jurors about the safety measures implemented in the building and advised them to take as much time as they needed and to notify him if they had any concerns about their ability to deliberate fairly. We presume that the jury followed this instruction, see Martinez, supra at 194, and thus see no abuse of discretion in the judge's decision not to declare a mistrial or not to conduct, sua sponte, individual voir dire.
We further note that the length of the deliberations belies the defendant's assertion that the jury were pressured into returning a verdict. The jury deliberated for approximately three hours on the first day of deliberations. On the second day, the jury deliberated for approximately thirty minutes before the judge gave the instruction, and then for over five hours after the instruction, ultimately acquitting the defendant of two of the six charges. This refutes the defendant's claim of a rushed and unfair verdict. See, e.g., Pina v. McGill Dev. Corp., 388 Mass. 159, 170 (1983); Commonwealth v. Martins, 38 Mass.App.Ct. 636, 641 (1995).
2. Ineffective assistance of counsel.
The defendant raises three ineffective assistance of counsel claims for the first time on direct appeal. To prevail on these claims, the defendant must demonstrate that, but for his counsel's "serious incompetency, inefficiency, or inattention," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), there is a "reasonable probability" that "the result of the proceeding would have been different." Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668, 694 (1984). And because the defendant has not filed a motion for a new trial supported by affidavits, we will reverse his convictions only if counsel's ineffectiveness is indisputably apparent from the trial record. See Commonwealth v. Powell, 459 Mass. 572, 583 (2011), cert, denied, 565 U.S. 1262 (2012).
The defendant first claims that his first attorney was ineffective for failing to file a written motion for a continuance supported by an affidavit and a written motion to withdraw. At the start of trial, the defendant's first attorney told the judge that he learned the day before that the defendant had hired a new attorney, who would be requesting a continuance to give herself time to prepare. The judge stated that he would not grant a continuance, finding that the defendant "wait[ed] until the eve of trial" to retain new counsel and appeared to be trying "to delay the case in order to avoid the witnesses coming in and testifying." When the defendant's new counsel appeared in the courtroom later that day, the judge made clear to her that he "wouldn't have granted a continuance . . . under the extraordinary circumstances of this case." The defendant does not contend that the judge abused his discretion, and the defendant fails to explain how his first attorney's failure to file written motions made any difference in the outcome. Because the judge's decision was not based on the lack of written motions, the defendant has failed to show either deficient performance or that he was deprived of a substantial ground of defense. See Saferian, 366 Mass. at 96.
The defendant next claims that his first attorney was ineffective for failing to present evidence to rebut the Commonwealth's characterization of the defendant's move to Virginia as consciousness of guilt. As noted, the defendant did not file a motion for a new trial, and so we do not have an affidavit from counsel explaining whether he made a strategic decision not to present such evidence. But setting that aside, the evidence that the defendant says should have been presented -- that he owned property in Maryland, sent child support payments to the Department of Revenue with a Virginia address, and appeared in a paternity action in Salem Probate and Family Court -- was already before the jury. Counsel was not ineffective for failing to present cumulative evidence, nor did that failure deprive the defendant of a substantial ground of defense. See, e.g., Commonwealth v. Lynch, 439 Mass. 532, 539 (2003) .
Finally, we reject the defendant's claim that his first attorney was ineffective for failing to challenge the verdicts as inconsistent. According to the defendant, it was inconsistent for the jury to convict him of aggravated rape and assault and battery by means of a dangerous weapon while acquitting him of armed burglary, where the former offenses were the underlying felonies for the armed burglary charge. No legal inconsistency exists, however, because the jury could have found insufficient evidence to support the other elements of the offense of armed burglary, leading them to acquit on that charge. We also see no factual inconsistency, which is not, in any event, a basis for invalidating a verdict. See Commonwealth v. Elliffe, 47 Mass.App.Ct. 580, 584 (1999).
The defendant's blanket assertions that his first attorney was "unprepared" and "failed to perform basic legal work to get the matter prepared for trial" are unsupported by citations to the record and do not rise to the level of appellate argument.
Judgments affirmed.
The panelists are listed in order of seniority.