Opinion
No. 08–P–1807.
2012-05-22
COMMONWEALTH v. Jose L. NEGRON.
By the Court (CYPHER, SMITH & FECTEAU, J.J.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions for armed robbery, armed kidnapping, and several firearm offenses, and from the denial of his motion for new trial. Specifically, the defendant contends (1) the judge erred by not requiring the Commonwealth to set forth a reason for exercising its peremptory challenges with regard to two jurors, (2) the conduct of trial counsel was ineffective in several instances, (3) the Commonwealth failed to present sufficient evidence of kidnapping,
(4) in light of Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), the Commonwealth lacked sufficient admissible evidence to prove the defendant possessed a firearm pursuant to G.L. c. 140, § 121, and (5) the judge erred in denying the defendant's requests for further discovery and an evidentiary hearing on his new trial motion.
To the extent that the defendant argues the evidence at trial was insufficient to support a conviction for kidnapping Steven, we defer to the familiar Latimore standard and view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). We find that a rational trier of fact could have found the essential elements of a kidnapping, namely, that when the defendant seized Steven, he did so against the will of Steven's mother, with the intent to maintain confinement, as this conduct was contemporaneous with his kidnapping of the mother. See Commonwealth v. Colon, 431 Mass. 188, 192 (2000).
1. Peremptory challenges. The defendant contends that the judge erred in finding the Commonwealth's use of peremptory challenges to strike jurors 15
The defendant claims the judge abused her discretion in denying his motion for new trial without an evidentiary hearing and further discovery related to the prosecutor's peremptory challenges. It is well within the discretion of the motion judge to deny a motion for new trial without conducting an evidentiary hearing where no substantial issue is raised by the motion. Commonwealth v. Wallis, 440 Mass. 589, 596 (2003). Where, as here, the motion judge was also the trial judge, we give substantial deference to the judge's finding that the defendant's motion did not raise a substantial issue. Ibid. Based on our review, infra, of the peremptory challenges, we conclude that the judge did not abuse her discretion in denying the motion without an evidentiary hearing or further discovery on this issue.
Juror 15 self-identifies as a Hispanic male.
to be proper, thereby alleviating any requirement on the part of the prosecution to set forth a nondiscriminatory reason for said challenges. In particular, the defendant asserts that the elimination of each juror from the venire removed the sole eligible Hispanic male and African–American female, respectively. The Commonwealth, in turn, claims the defendant has failed to make a prima facie case of prosecutorial impropriety. We agree.
Juror 65 self-identifies as an African–American woman.
We review the decision of the trial judge to determine whether allowance of the Commonwealth's peremptory challenges is an “abuse of discretion [ ]or other error of law.” Commonwealth v. Jordan, 439 Mass. 47, 62 (2003). “A trial judge is in the best position to decide if a peremptory challenge appears improper and requires an explanation by the party exercising it. Therefore, we do not substitute our judgment [on whether the presumption has been rebutted] for [the trial judge's] if there is support for it on the record.” Commonwealth v. Aspen, 53 Mass.App.Ct. 259, 262 (2001) (quotations and citation omitted). There is a presumption, albeit rebuttable, that peremptory challenges are properly used. Commonwealth v. LeClair, 429 Mass. 313, 319 (1999). A defendant may rebut this presumption by making a prima facie case of discrimination, showing “(1) there is a pattern of excluding members of a discrete group and (2) it is likely that individuals are being excluded solely on the basis of [that] membership.” Commonwealth v. Sanchez, 79 Mass.App.Ct. 189, 192 (2011), quoting from Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003). See Commonwealth v. Soares, 377 Mass. 461, 489–491 (1979), cert. denied, 444 U.S. 881 (1979).
Here, the defendant failed to rebut this presumption and to demonstrate that the Commonwealth's challenge of either juror was based on race or ethnicity. During individual voir dire, juror 15 submitted inconsistent responses to the judge's inquiries regarding the juror's employment status, as well as revealed that a close family member had been convicted of and incarcerated for a crime. While the judge found juror 15 was “indifferent,” such a finding does not preclude either party from exercising a proper peremptory challenge; rather, a party is required to wait for a judicial determination of “indifference” before properly exercising peremptories. See Commonwealth v. Ouellette, 58 Mass.App.Ct. 711, 713 (2003). That the judge did not find such a challenge to be likely based on race, is thus, not error.
To the extent that the defendant contends that the judge erroneously determined Hispanic males to be an ethnic group synonymous with “other males of color,” we find such a contention to be misplaced. Specifically, in responding to the defendant's assertions that the peremptory challenge of juror 15 exercised by the Commonwealth was improper, the judge noted that she was not certain that juror 15 was the sole, eligible Hispanic male within the venire. In fully articulating this uncertainty, she stated that she “observ[ed] other males of color in the venire,” and further concluded the situation did not require the Commonwealth to put forth a neutral reason for its strike.
The defendant likewise failed to make a prima facie showing that the Commonwealth challenged juror 65 solely because she was African–American. As the trial judge was in the best position to determine the propriety of the challenge, we do not find error in the judge's implicit finding that the defendant failed to make the prima facie case required to shift the burden to prove a lack of discrimination to the Commonwealth.
To the extent that the defendant contends that use of a peremptory strike to remove the sole, eligible member of a particular ethnic group is a per se violation of art. 12 of the Massachusetts Declaration of Rights, we find this argument to be without merit. “[A] requirement that each jury include members of every group in the community is impracticable.” Commonwealth v. Arriaga, 438 Mass. 556, 562 (2003).
2. Ineffective assistance of counsel. The defendant claims that trial counsel was ineffective in several respects, namely, (1) failure to cross-examine a critical eyewitness, (2) failure to object to the testimony of a young child on the grounds of competency, (3) failure to locate and investigate remaining victims for the purpose of presenting an alternative narrative of the night in question, (4) failure to obtain the 911 tapes, and (5) failure to request a proper instruction on kidnapping charges for a child under fourteen years of age. The Commonwealth, in turn, contends all assertions, collectively and individually, are without merit.
Under the familiar Saferian standard, the defendant must meet two prongs to prove ineffectiveness: that the behavior of counsel fell “measurably below that which might be expected from an ordinary fallible lawyer,” and thereby “likely deprived the defendant of an otherwise available, substantial ground of defense.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “A strategic decision by an attorney, however, amounts to ineffective assistance only if it was manifestly unreasonable when made.” Commonwealth v. Mercado, 452 Mass. 662, 667 (2008) (quotations and citation omitted). Claims of error, “absent a showing that errors likely affected the jury's conclusions, is insufficient to support an ineffective assistance claim.” Commonwealth v. Fisher, 433 Mass. 340, 354 (2001), quoting from Commonwealth v. Scott, 428 Mass. 362, 369 (1998).
Here, the defendant argues that in several instances, trial counsel's assistance was ineffective, but fails to set forth any evidence that the alleged errors, if indeed one or more can be deemed as such, had any effect on the decision of the jury. Moreover, we fail to discern that the judge erred in concluding, with regard to each of the defendant's claims, that the decisions made by trial counsel were not manifestly unreasonable.
3. Ballistics certification. Relying on Melendez–Diaz, 557 U.S. 305, the defendant contends the admission of the ballistics testing certificates, and testimony derived therefrom, was improper, in violation of the confrontation clause of the Sixth Amendment to the United States Constitution.
As the Commonwealth concedes, the admission of the ballistics certificates was error, so we must decide whether admission of the certificates was harmless beyond a reasonable doubt, such that the evidence “was so overwhelming as to nullify any effect [the erroneously admitted evidence] might have had on the jury or the verdict.”
At oral argument, the defendant claimed further that the testimony given by Detective Whalen and the information contained on the ballistics certificates were inextricably linked, therefore, the fact that the certificates were erroneously admitted renders the testimony inadmissible.
See Commonwealth v. Depina, 456 Mass. 238, 249 (2010) (quotations and citation omitted).
We note that the defendant did not object to the introduction of the certificates on confrontation grounds. However, “we review to determine whether the admission of the certificate[s] ... was harmless beyond a reasonable doubt.” Commonwealth v. Barbosa, 461 Mass. 431, 435 (2012).
Upon our independent review, we accept the Commonwealth's concession that the counts with respect to possession of the nine millimeter handgun must be reversed: count 15, unlawful possession of a firearm; count 16, unlawful possession of ammunition; and count 19, possession of a firearm with a defaced serial number.
Where the defendant was convicted of several firearm offenses, as well as offenses of armed kidnapping and armed robbery, the Commonwealth had the burden of proving that the defendant possessed a firearm, within the meaning of G.L. c. 140, § 121. “To constitute a firearm within the meaning of [the statute] ... the instrument in question must be (1) a weapon, (2) capable of discharging a shot or bullet, and (3) under a certain length.” Commonwealth v. Ware, 76 Mass.App.Ct. 53, 56 (2009) (quotations and citation omitted). The defendant contends that, without use of the certificates, the Commonwealth failed to prove the second prong of operability.
We note that “[t]he Commonwealth's burden to prove that a weapon is a ‘firearm’ in the statutory sense is not a heavy one. It requires only that the Commonwealth present some competent evidence from which the jury reasonably can draw inferences that the weapon will fire.” Commonwealth v. Loadholt, 456 Mass. 411, 430–431 (2010) (quotations and citations omitted), S. C., 460 Mass. 723 (2011). However, the analysis to determine whether this error was harmless beyond a reasonable doubt requires more evidence independent of the certificates than that which may be sufficient for the determination of a motion for required finding of not guilty. See Commonwealth v. Muniz, 456 Mass. 166, 171–172 (2010).
Specifically, the defendant argues that with the exception of the home invasion conviction, all of his convictions must be reversed. The Commonwealth, on the other hand, asserts that there is sufficient evidence, independent of the certificates, with respect to the convictions for armed kidnapping, while armed with a firearm (counts 2, 5, and 7), robbery while masked and armed with a firearm (counts 10 and 11), and the firearms offenses other than those for possession of the nine millimeter handgun and its ammunition (see note 9, supra ).
In light of the recent decision of the Supreme Judicial Court in Commonwealth v. Barbosa, 461 Mass. 431 (2012), we conclude that the evidence of operability is insufficient to nullify the effects of the erroneously admitted certificates. Barbosa created an evidentiary threshold, below which admission of a ballistics certification must constitute harmful error. Id. at 435–437. As the facts of the instant case are largely analogous to the material facts set forth in Barbosa, the instant case falls below the threshold and must be reversed.
In Barbosa, the Supreme Judicial Court observed that the testimony material to the issue of operability included the testimony of a State trooper describing the general process of ballistics testing, about which the trooper had no personal knowledge, testimony describing the weapon as fully-loaded at the moment of seizure, and the fact that a spent casing yielded from the testing process. See id. at 435–436. That a weapon is found fully-loaded, absent a spent casing in its chamber, does not by itself establish harmlessness beyond a reasonable doubt. Id. at 436. See Depina, supra at 250; Commonwealth v. Pittman, 76 Mass.App.Ct. 905, 907 (2010).
Where, as here, the only evidence of operability admitted independently of the certificates was testimony from Officer Whalen that he recovered three, fully-loaded guns, that each gun had undergone a test-firing and subsequently yielded one “test-fired casing” in addition to the remaining “live” casings, and general testimony of how the test-firing process is conducted at the State police laboratory, these facts closely resemble those in Barbosa. Similar to Barbosa, Officer Whalen did not perform the test firing or possess any personal knowledge of the specific test firing performed on each of the three weapons in question. Moreover, to persuade the jury of this element in its closing, the Commonwealth relied on the certificate: “each gun certified as operable, each gun a firearm.” Thus, the Commonwealth failed to provide “overwhelming” testimony as to the operability of the three guns independent of the ballistics certificates. Consequently, since all of the charges at issue, with the exception of that for home invasion,
required proof of the operability of a firearm, the convictions based on those charges must be reversed.
Given the different nature and elements of the home invasion charge, the error in the admission of the ballistics certificates, which requires reversal of the firearms-related convictions, does not require reversal of the home invasion conviction because we are convinced that it could not “have materially affected” the verdict. Commonwealth v. Jefferson, 461 Mass. 821, 833 (2012).
The judgment on count 1, home invasion, is affirmed. The remaining judgments are reversed and those verdicts and findings set aside.
The order denying the new trial motion is affirmed as to count 1, home invasion, and reversed as to the remaining counts.