Opinion
15-P-1725
05-01-2017
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the denial of the defendant's postconviction motions for a new trial, for release from unlawful restraint, and for reconsideration of his motion for required findings of not guilty. We previously affirmed his convictions in an unpublished memorandum and order issued pursuant to Appeals Court Rule 1:28. Commonwealth v. Abernathy, 85 Mass. App. Ct. 1117 (2014). In this appeal, the defendant argues, inter alia, that the judge should have held an evidentiary hearing on his motion for a new trial; that his appellate counsel on his direct appeal was ineffective for failing to raise the arguments that he presses now—specifically that there was insufficient evidence to convict him of breaking and entering into one of the two apartments and of possession of burglarious instruments, that statements during the jury charge shifted the burden of proof to the defendant, and that the defendant's right to confrontation was violated. He also maintains that the indictments were defective. We affirm.
Background. Based on the trial evidence, rational jurors could have found the following facts. A woman who lived in an upstairs unit of an Allston apartment building saw a man outside the building carrying a black umbrella and a white bag with red writing. After she heard the man forcing open apartment one's locked ground-floor window, she called 911. Upon arriving at the scene, police officers saw the defendant in a windowed mudroom at the back of the building. The defendant fled, running back through the building and exiting through the front door. The officers gave chase and apprehended him a short distance away. As he was being arrested, the defendant voluntarily stated, "I do ten B&Es ... get caught once. It's worth it."
In the building, there was damage to the door to apartment two. Inside apartment two, a detective found a white ACE Hardware bag with red lettering, an umbrella, a chisel, and a tool that the detective referred to as a "pry bar." Following his arrest, the police observed the defendant attempting to tear up an ACE Hardware receipt for a chisel and a crowbar of the same model as was found inside apartment two. The defendant testified at trial, advancing a theory of misidentification.
Discussion. Evidentiary hearing. The defendant first argues that the judge erred in denying his motion for a new trial (and his other motions) without an evidentiary hearing. There is no merit to this argument. The decision whether to conduct an evidentiary hearing on a new trial motion is within the judge's discretion. Commonwealth v. Mercado, 452 Mass. 662, 672-673 (2008). As there was no "substantial issue" raised by the motion or affidavits, there was no requirement for an evidentiary hearing. Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001).
Ineffective assistance of appellate counsel. A defendant is denied the right to counsel when an attorney's performance "fall[s] measurably below that which might be expected from an ordinary fallible lawyer" so as to "deprive[ ] the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). It necessarily follows that an appellate lawyer cannot be ineffective by not making arguments that would not have prevailed. See Breese v. Commonwealth, 415 Mass. 249, 252 (1993). For the reasons set forth below, the defendant could not have prevailed in his initial appeal on any of the arguments he now claims appellate counsel was ineffective for not having raised. Therefore, he is unable to show ineffectiveness or prejudice. Saferian, supra.
To the contrary, making appellate arguments that are doomed to fail can detract from the arguments that are made.
In considering the defendant's sufficiency arguments, evidence presented would have been considered in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). With respect to the conviction of breaking and entering into apartment two, the defendant makes much of the fact that the residents of apartment two did not testify at trial, and that there was no other direct evidence that he (or anyone else) actually entered the unit without permission. Although the absence of testimony from the residents certainly made the Commonwealth's case more difficult to prove, we conclude that the web of circumstantial evidence the Commonwealth provided was sufficient to support the jury's verdict. See generally Commonwealth v. Woods, 466 Mass. 707, 713 (2014) ("Commonwealth may submit a case wholly on circumstantial evidence and inferences drawn from that evidence need only be reasonable and possible"). That evidence included the following: the defendant had just broken into the adjacent apartment; prior to breaking into that apartment, the defendant was seen in possession of a white bag with red lettering and an umbrella, items that the jury could infer he did not have on him when he was apprehended after coming out of the building; the door to apartment two was damaged; an ACE Hardware bag that was white with red lettering was found inside of apartment two together with an umbrella and a pry bar and chisel; and the defendant had a receipt for such tools in his pocket, which he attempted to destroy (demonstrating his consciousness of guilt with respect to evidence linking him to apartment two). Based on this evidence, taken as a whole, a rational jury could have concluded beyond a reasonable doubt that the defendant entered apartment two without the permission of the residents. See Commonwealth v. Perez, 460 Mass. 683, 702 (2011), quoting from Latimore, supra. See also Commonwealth v. Lodge, 431 Mass. 461, 465 (2000) (jury's inferences must be reasonable, but need not be inescapable). It necessarily follows that the absence of a challenge to the sufficiency of this evidence by appellate counsel did not constitute constitutionally ineffective assistance of counsel.
One of the residents testified before the grand jury. At trial, the Commonwealth established that this individual was, by that time, unavailable.
The defendant's argument as to the sufficiency of the evidence supporting the burglarious instruments conviction would have fared little better. There was sufficient, albeit circumstantial, evidence to permit the jury to infer that the tools found in apartment two were the same ones reflected on the ACE receipt found on the defendant's person and that he had possession of those tools prior to his arrest when he broke into the building.
The defendant has not challenged the sufficiency of the evidence of "burglarious intention." See Commonwealth v. Squires, 476 Mass. 703, 708-710 (2017). In any event, unlike in Squires, the tools here were discovered at the scene of a break-in. See Commonwealth v. Jones, 355 Mass. 170, 176-177 (1969) (discovery of otherwise innocuous instruments together at scene of a burglary is dispositive proof of burglarious intent).
Similarly, the defendant could not have prevailed in his initial appeal had he argued that two of the judge's statements during the jury charge effectively shifted the burden of proof to the defense. Because no objections to the statements had been raised at trial, appellate review would have been limited to whether any errors in the instructions caused a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Moreover a judge's instructions are to be reviewed as a whole, not in isolation. Commonwealth v. Raymond, 424 Mass. 382, 386 (1997) (jury charge should be reviewed "as a whole to determine whether it fairly instructs the jury").
The judge forcefully and repeatedly emphasized that the Commonwealth bore the burden of proving each element of the crimes beyond a reasonable doubt, that the defendant was presumed innocent, and that it was the jury's role to determine whether the Commonwealth had met its burden of proof. She then at one point stated: "Evidence can take any form—any number of forms and that's not important for your consideration. But what is important is obviously the Commonwealth has always met its burden of proof." Viewed in context, this was an obvious slip of the tongue; the judge clearly intended to instruct that the Commonwealth always has to meet its burden of proof.
For example, at one point she told the jury that "[w]here the Commonwealth's case is based solely on circumstantial evidence ... you may find the defendant guilty only if those circumstances are conclusive enough to leave you with a moral certainty, a clear and settled belief that the defendant is guilty beyond a reasonable doubt."
The defendant's second claimed error in the instructions is of a similar ilk. The judge stated as follows:
"[T]he Commonwealth has to prove the defendant knowingly possessed a tool or implement. In this instance I guess it's like a crowbar—they're marked as exhibits. ‘He knowingly possessed that item.’ "
Viewed in context, the concluding statement refers to what the Commonwealth had to prove, not the judge's conclusion that it had proven this. The fact that the defendant discerned no problem with these instructions when they were given is "some indication that the tone, manner, and substance of the now challenged" statements were not unfairly prejudicial. Commonwealth v. Toro, 395 Mass. 354, 360 (1985). See Commonwealth v. Marangiello, 410 Mass. 452, 462 (1991). The fact that initial appellate counsel also missed any problem with the judge's phrasing is further confirmation of this. Reviewing each contested statement in context, we are confident that neither would have misled the jury into thinking that the Commonwealth's heavy burden had lightened or shifted.
Finally, the defendant argues that his initial appellate counsel should have argued that his right to confrontation was violated when the Commonwealth failed to call the residents of apartment two to the stand. That underlying claim has no merit and could not have served him in the initial appeal. The confrontation clause of the Sixth Amendment to the United State Constitution ensures that the accused has the opportunity "to meet a witness against him face to face." Commonwealth v. Bergstrom, 402 Mass. 534, 544 (1988) (quotations omitted). However, because the apartment two residents did not make any statements that were admitted as evidence at trial, they cannot be characterized as witnesses against the defendant. The confrontation clause is not implicated.
The defendant's attempt to style this issue as a discovery violation is unavailing. The record reveals that prior to trial he was provided with at least one resident's name in the grand jury minutes.
Defective indictments. Because the defendant did not challenge the validity of the indictments prior to trial, this claim of error is not properly before us. Commonwealth v. Fernandes, 430 Mass. 517, 521 n.13 (1999), cert. denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000), citing G. L. c. 277, § 47A ("[A] challenge to the sufficiency of an indictment must be raised prior to trial unless the defendant raises a claim that the court lacks jurisdiction or the indictment fails to charge an offense"). Were we to entertain this argument, it would require little discussion. The grand jury foreperson need not sign every page of an indictment where, as here, it is clear from their content and appearance that the pages form a single, signed indictment. See id. at 520-521 ("[T]he counts for the current offense and for the repeat offense are viewed as parts of one indictment and charge only one crime with a sentence enhancement provision").
Each page of each indictment bears a unifying header indicating the underlying charge, and the second and third pages are numbered as such. The grand jury foreperson's signature appears at the bottom of the final page.
Other arguments not addressed in this opinion have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Orders denying motions for new trial, for release from unlawful restraint, and for reconsideration of denial of motion for required findings of not guilty affirmed.