Opinion
18-P-732
04-09-2020
COMMONWEALTH v. Carlos MALDONADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Carlos Maldonado, was convicted of two counts of armed assault with intent to murder; unlawful possession of a firearm; unlawful possession of a loaded firearm; possession of a firearm without a firearms identification card; unlawful possession of a firearm with a defaced serial number; and malicious destruction of property. Following an appeal in this court, his convictions of possession of a firearm without a firearms identification card and of malicious destruction of property were vacated "because the former is duplicative and the evidence is insufficient as to the latter." Commonwealth v. Maldonado, 77 Mass. App. Ct. 1102, n.1 (2010). The remaining convictions were affirmed. Id.
Further appellate review was denied. Commonwealth v. Maldonado, 458 Mass. 1101 (2010).
On April 10, 2017, the defendant filed a pro se motion for a new trial; that motion was denied. There was no appeal. With the aid of counsel, the defendant filed a second motion for a new trial, in which he argued that there was newly discovered evidence that exculpated him and that his prior attorneys were ineffective. That motion also was denied, and the defendant now appeals. We affirm, essentially for the reasons well explained in the motion judge's thoughtful memorandum.
Background. The jury could have found the following facts. On Monday, October 9, 2006, at about 11:30 P.M. , Alberto Vega and Carlos Cardona were walking on Cabot Street in Holyoke when they passed the defendant and two other men, Victor Colon and Joshua Santos. Vega and Cardona heard the three men call out to them and, when they turned, the man standing in the middle of the three began to shoot at Vega and Cardona, "fir[ing] five shots before his gun jammed, and the one on the left tried to help fix the jammed gun."
At the same time, Officer Troy Copeland was on patrol in the vicinity. Copeland heard the gunshots and traveled in that direction, but stopped at a red traffic light. "After the shooting, the trio ran off together, stopped running only to avoid suspicion, and walked quickly past ... Copeland." Shortly afterwards, Copeland encountered Vega and Cardona; they told him about the shooting and also told him that the men had run off in the direction Copeland had just come from.
Copeland went back to that area, where he observed the three men, activated the lights on his police cruiser, and ordered the three to stop. Colon complied, but the defendant and Santos fled into a nearby apartment building. When Copeland entered the apartment building, he heard a loud crash coming from the third floor. He went upstairs and discovered an apartment with a broken doorframe. Inside the apartment, he found the defendant and Santos, along with two handguns, including a jammed gun that matched the shell casings found at the crime scene. The apartment belonged to Santos's mother. After trial, as noted, a jury found the defendant guilty as a joint venturer.
Santos and Colon both pleaded guilty on October 9, 2007.
In the motion at issue before us, the defendant argues that his first ever in-person interview of Santos yielded potentially exculpatory evidence; trial counsel was ineffective for failing to bring a motion to suppress a show-up identification; and trial counsel also was ineffective for failing to challenge an officer's hearsay testimony regarding Cardona's out-of-court identification of him. As noted, this second motion was also denied without a hearing. The judge found all of the issues raised were waived pursuant to Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001), and concluded that the defendant's amended second motion does not give rise to a substantial risk of a miscarriage of justice. The defendant appeals from the denial of that amended motion and the denial of his motion for reconsideration.
On May 2, 2018, the defendant filed a motion for reconsideration of his amended motion for a new trial requesting that the judge reconsider his amended motion for a new trial in light of an appended affidavit from his trial counsel. The motion was denied without a hearing.
Discussion. "We review an appeal from the ‘denial of a motion for new trial to determine whether there has been a significant error of law or other abuse of discretion.’ " Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 571 (2014), quoting Commonwealth v. Rodriguez, 467 Mass. 1002, 1004 (2014). "A judge may grant a motion for a new trial only ‘if it appears that justice may not have been done.’ " Commonwealth v. Masonoff, 70 Mass. App. Ct. 162, 165-166 (2007), quoting Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). "Where, as here, a judge hearing a motion for new trial was not the trial judge, we regard ourselves in as good a position as the motion judge to assess the trial record." Gaston, supra, quoting Commonwealth v. Laguer, 448 Mass. 585, 593 (2007). "In addition, when a new trial motion is constitutionally based, ... ‘this court will exercise its own judgment on the ultimate factual as well as legal conclusions.’ " Gaston, supra, quoting Commonwealth v. Salvati, 420 Mass. 499, 500 (1995).
The defendant first argues that the trial judge erred in finding that he had waived certain issues raised in his second motion for a new trial. He contends that Santos's signed affidavit from February 2018 is newly discovered evidence; and, under rule 30 (c) (2), it could not have been raised at an earlier time. According to the defendant, this evidence is relevant on the issue of whether the defendant "knowingly and intentionally participated" in a joint venture and did so with the intent to murder. His argument fails for two reasons: first, the evidence is not newly discovered and, second, as the motion judge observed, under rule 30 (c) (2), "a defendant must assert all reasonably available grounds for postconviction relief in his first rule 30 motion, or those claims are lost." Commonwealth v. Deeran, 397 Mass. 136, 138-139 (1986). See Mass. R. Crim. P. 30 (c) (2). "Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion." Id. "A defendant seeking a new trial on the basis of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Pike, 431 Mass. 212, 218 (2000). Evidence will qualify as "newly discovered" only where the defendant has shown "that the evidence was unknown to the defendant or the defendant's counsel and not discoverable through ‘reasonable pretrial diligence’ at the time of trial or at the time of the presentation of any earlier motion for a new trial." Id., quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986).
Santos's affidavit recounts that he was "drunk and high on angel dust at the time of the shooting"; that he and the defendant were walking with Colon and that he, Santos, had two firearms. He did not say anything to either Colon or the defendant before he "pulled out one of [his] guns and shot at the people walking toward us." Santos described the defendant as "just a bystander"; he said that the defendant entered his (Santos's) mother's house after him and that he had threatened retaliation against the defendant if he told the police that Santos was the shooter.
The defendant contends that the content of the affidavit was not in existence until 2018, and that threats from Santos affected his ability to obtain the evidence earlier. The success of this argument rests on distinguishing this case from the court's holding in Commonwealth v. Weichell, 446 Mass. 785 (2006). In Weichell, the issue turned on whether the defendant reasonably could have discovered the exculpatory content of a confession letter authored by another man, despite credible threats against the defendant and his mother from a man named James J. Bulger, Jr. (alias "Whitey") and his associates. Id. at 796. The court explained, "a coercion or fear exception to the standards governing newly discovered evidence, has no support in the law." Id. at 800. Consistent with the duty of due diligence, "the defendant could have ‘uncovered’ the content of [the] confession letter and revealed the content to his attorney, and he could have sought protection for himself and his family from the government." Id. at 801.
The defendant represents that Santos, whose conviction had not yet become final, was a "ranking member" of a criminal organization known as "La Familia" with a history of violence.
--------
Here, the defendant points to nothing outside of a threat from Santos that prevented him from pursuing what he now seeks to argue for the first time. He maintains that he "was aware that Santos was the only shooter and that he had no knowledge of Santos's intent to commit the shooting." He also contends that he did not pursue this defense because of Santos's threat. In the defendant's view, however, once Santos signed the February 2018 affidavit, that concern dissipated. We are not persuaded; it is clear that the defendant had the ability to ascertain the content of Santos's affidavit long before he filed his current motion, and his deliberate failure to do so means that the information was not newly discovered. See Weichell, 446 Mass. at 801.
The defendant's remaining claims concern alleged ineffectiveness of counsel relevant to decisions made prior to the filing of the defendant's pro se motion for a new trial on April 17, 2018. Those arguments were known and accessible to him at the time he filed his initial motion for a new trial. The failure to raise them at that time constitutes waiver. See Mass. R. Crim. P. 30 (c) (2).
Of course, the analysis of the defendant's arguments does not end at waiver; "[a]ll claims, waived or not, must be considered. The difference lies in the standard of review." (Footnote omitted). Commonwealth v. Randolph, 438 Mass. 290, 293-294 (2002). We therefore review to determine whether there is "a substantial risk of a miscarriage of justice." Id. at 294, quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
The defendant argues that Santos's affidavit cast serious doubt on the Commonwealth's proof of the defendant's intent. We disagree. "The test [for joint venture] is whether each defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Carrillo, 483 Mass. 269, 290 (2019). Here, the Commonwealth presented ample evidence at trial to establish that the defendant, Colon, and Santos acted as a trio before, during, and after the shooting.
Furthermore, as the defendant concedes, the affidavit of a codefendant is weak evidence. See Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 386 (1987), quoting Dirring v. United States, 353 F.2d 519, 520 (1965) ("[I]f a new trial could be predicated as of right upon a codefendant's change of heart after failure to take the stand there could always be a second chance for everyone"). In addition, as the motion judge observed, even if it were newly discovered, Santos's affidavit is by no means completely exculpatory of the defendant; nor is it corroborated in significant part. In the affidavit, Santos describes the defendant as one of the three men present at the time of the shooting, thus negating any claim of misidentification, and as the motion judge noted, the "affidavit flatly contradicts [the defendant's] account at trial in [other] material respects." Further, at the time of his own plea of guilty, Santos "agreed that [the defendant] had played a role." Finally, the defendant's post-shooting conduct was highly probative of his complicity. See Commonwealth v. Blake, 428 Mass. 57, 64 (1998). He ignored the orders of two police officers with their guns drawn to stop and put up his hands. Instead, he ran to 344 Maple Street, broke down the door to the third-floor apartment, and attempted to take sanctuary there with Santos. See Commonwealth v. Cannon, 449 Mass. 462, 471 (2007) (defendant made no attempt to disassociate himself from his cohorts). When the police discovered the defendant in the kitchen, he again refused to comply with police orders. In the adjacent back stairwell, the police discovered a black semiautomatic handgun with a bullet stuck in its ejection port and an obliterated serial number that formed the basis of the defendant's prosecution. The police also found the clothing that Copeland had seen the defendant wearing. Cardona and Vega positively identified the defendant, Santos, and Colon as the three assailants. In sum, the defendant assisted and participated in the attack on the victims by his codefendants. This strong evidence of the defendant's guilt, and the unconvincing nature of Santos's affidavit, persuade us that the denial of the defendant's amended motion for a new trial based on this affidavit did not lead to a substantial risk of a miscarriage of justice. See Randolph, 438 Mass. at 294.
The defendant next argues that trial counsel was ineffective in two respects, each sufficient on its own to warrant a new trial. We disagree. First, the defendant argues that trial counsel was ineffective for failing to file a motion to suppress a showup identification. Where a defendant claims that counsel is ineffective for failing to file a motion to suppress, he bears the burden of establishing two things. First, he must show that he would have prevailed on this issue had it been raised at trial, see Commonwealth v. Chatman, 466 Mass. 327, 335 (2013) ; second, he must show "that there was a reasonable possibility that the verdict would have been different without the excludable evidence." Commonwealth v. Segovia, 53 Mass. App. Ct. 184, 190 (2001), quoting Commonwealth v. Pena, 31 Mass. App. Ct. 201, 205 (1991). Here, even were we to conclude that a motion to suppress would have been successful, and we do not, suppression of the eyewitness identification would have been insignificant, particularly given the fact that Copeland observed the defendant with his codefendants immediately after the shooting and apprehended him with Santos shortly thereafter. See Commonwealth v Miranda, 22 Mass. App. Ct. 10, 21 (1986) ("Where evidence of guilt is strong and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice").
Second, the defendant argues that his trial counsel was ineffective for failing to object to the testimony of a police officer regarding Cardona's identification of the defendant in violation of his right to confrontation under the Sixth Amendment to the United States Constitution. We recognize, as the Commonwealth concedes, that the testimony was, in fact, hearsay; had there been an objection at trial, it likely would have been excluded as such and, therefore, as a violation of the defendant's right to confront the witnesses against him. However, as we have said, the independent evidence tying the defendant to the scene of the crime and to his codefendants was more than sufficient -- even in the absence of the police officer's testimony about an out-of-court identification. See Randolph, 438 Mass. at 297-298 ; Miranda, 22 Mass. App. Ct. at 21; note 3, supra.
The defendant's final argument is that the denial of his amended motion for a new trial should have been reconsidered because he submitted, for the first time, an affidavit from trial counsel in which counsel stated that he had no recollection or records from the case, so he could not comment on his trial strategy. We need not reach the claim because, as explained supra, even removing the challenged identification evidence, we see no substantial risk of a miscarriage of justice. See Commonwealth v. Montrond, 477 Mass. 127, 134 (2017) (trial counsel's failure to offer evidence of defendant's intoxication was deemed manifestly unreasonable, but court concluded that, had error not been made, verdict would have remained same).
For the foregoing reasons, there was no abuse of discretion in the denial of the defendant's amended motion for a new trial or in the denial of the defendant's motion for reconsideration. See Gaston, 86 Mass. App. Ct. at 571.
Orders denying amended motion for new trial and motion for reconsideration affirmed.