Opinion
13-P-2021
06-03-2015
COMMONWEALTH v. FRANKLIN KAPAIA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
In 2009, the defendant in this case was found guilty of rape of a child with force in violation of G. L. c. 265, § 22A. That conviction was affirmed in Commonwealth v. Webster W., 83 Mass. App. Ct. 1106 (2013). On July 8, 2013, the defendant was served with a violation of probation notice as a result of a new arrest for murder, armed robbery, and possession of a firearm. After a hearing, the defendant was found in violation and his probation was revoked. He was committed to State prison for a term of eight to fifteen years. The defendant noticed his appeal, and appellate proceedings were stayed to allow the defendant to file a motion for a new trial, essentially a motion seeking a new hearing on the probation violation. That motion was denied and the defendant now appeals.
We have consolidated the appeal from the denial of the motion for a new trial with the appeal from the order revoking probation.
The defendant argues that hearing counsel was constitutionally ineffective. See Commonwealth v. Patton, 458 Mass. 119, 129 (2010) (applying Saferian standard to ineffective assistance of counsel claim relating to representation at probation violation proceeding). First, he argues that counsel failed to secure all of the police reports and review all of the available evidence that would have alerted him to conflicting stories by witnesses who testified before the grand jury. The affidavits before the judge on the motion for a new hearing do not compel belief in the factual assertion that underlies this argument. Although appellate counsel obtained an affidavit from trial counsel, trial counsel's affidavit does not address what evidence he reviewed prior to the hearing. Appellate counsel herself filed an affidavit stating that she contacted trial counsel, asking him whether he had obtained any evidence other than the grand jury minutes, specifically the police reports. Trial counsel faxed her a single police report, stating "this is all I have aside from the grand jury minutes." This does not, however, without more, conclusively demonstrate that counsel never reviewed the relevant evidence before the hearing, only that he did not have it in his possession five months later.
In any event, even if trial counsel had (and we do not know that he did not), as appellate counsel has done, discovered factual inconsistencies among various witnesses' statements, the only way to explore such inconsistencies at the hearing would have been to call the witnesses to testify at the hearing. In his affidavit, trial counsel states that he was "keenly aware that [the defendant's probation terms were] violated because he was indicted on the [charge of] murder [in the first degree]. Thus one of my primary concerns was to make sure that nothing was done that might hurt his murder case." Counsel avers that he had a conversation with the attorney who was representing the defendant on the murder charge, and that he did not wish to create witness testimony, under oath, which could later be used against the defendant in the event witnesses were unavailable during the murder trial. Counsel averred that the defendant informed him that he "did not believe several witnesses would testify against him at trial" on the murder charge.
We cannot say that this tactical decision was manifestly unreasonable, falling below what might have been expected from an ordinary lawyer, and therefore the first prong of Saferian has not been met. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Nothing in the police reports disturbs that conclusion, and, given that strategy, and the contents of the police report, even failure to obtain it did not deprive the defendant "of an otherwise available, substantial ground of defence." Ibid.
Finally, we see no abuse of discretion in the probation hearing judge's admission of the grand jury minutes. Nor, given the detail and the corroboration of the inculpatory evidence in those grand jury minutes, do we think counsel's failure to argue that they were inadmissible, constituting patently unreliable hearsay, amounted to ineffective assistance of counsel. Counsel did argue (albeit only in a very brief closing argument) that the evidence presented was unreliable. We note that the almost cursory nature of these proceedings, which resulted in the incarceration of the defendant for roughly a decade of his life, is in some sense troubling, but under our current case law there is no basis for granting him relief.
Order revoking probation and imposing sentence affirmed.
Order denying motion for new trial affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 3, 2015.