Opinion
No. 16–P–356.
12-22-2016
COMMONWEALTH v. Troy E. NOCK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Troy Nock, appeals from the denial of his second motion for a new trial. The judgments and the order denying his first motion for a new trial were affirmed by a panel of this court on July 23, 2009. Commonwealth v. Nock, 74 Mass.App.Ct. 1126 (2009). His principal claim in this appeal is that appellate counsel provided ineffective assistance by failing to include, in her petition for further appellate review of the panel's 2009 decision, a claim of ineffectiveness of motion counsel appointed to represent the defendant at a hearing on the grand jury's request for a blood sample. Largely for the reasons set forth in the Commonwealth's brief, we affirm the order denying the second new trial motion.
The petition was denied. Commonwealth v. Nock, 455 Mass. 1101 (2009).
To begin, we note that the issue of motion counsel's ineffectiveness was litigated and decided against the defendant in his first new trial motion. The motion judge, who was also the trial judge, stated that the argument had no merit,
"because any effort by defense counsel to object to the order to take a blood sample, or to seek appellate review of that order, would have been futile. The Commonwealth's motion and supporting affidavit, reflecting the CODIS match, established probable cause to believe that a sample of the defendant's blood would provide evidence that would be probative and material to the case."
Likewise, we discern no viable claim of ineffective assistance based on appellate counsel's failure to press the issue of motion counsel's ineffectiveness. We agree with the motion judge that any such effort would have been futile. "[I]neffective assistance of counsel exists only where there is both a deficient performance by counsel and the likelihood of serious resulting prejudice to the defendant" (emphases supplied). Commonwealth v. Nardone, 406 Mass. 123, 126 (1989). That is, even assuming that by failing to consult with the defendant regarding the blood sample hearing, motion counsel's representation demonstrated "serious incompetency, inefficiency, or inattention ... falling measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the defendant has not and cannot show that "better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
A grand jury does not need probable cause to request a blood sample to confirm a deoxyribonucleic acid (DNA) identification. See In the Matter of a Grand Jury Investigation, 427 Mass. 221, 225 (1998) ("Given that a grand jury must find probable cause to indict, it would be peculiar to require them to demonstrate the same degree of probable cause to believe that a target of their investigation committed a crime before the grand jury could properly obtain evidence in aid of their investigation"). Rather, "[a] grand jury must have a reasonable basis for believing (have probable cause for believing, if you wish) that a blood sample will provide test results that will significantly aid ... the grand jury in their investigation." Id. at 226. Here, where the investigation had revealed a "hit" of the State DNA database, indicating a match of crime scene evidence with the defendant's DNA profile stored in the database, such a basis was established. Nothing that motion counsel could have done would have altered the inevitable result of the blood sample being ordered, and appellate counsel would have achieved nothing by pressing this meritless claim . ,
If appellate counsel had pressed this issue in the petition for further appellate review, the defendant's Federal habeas corpus petition might have survived a motion to dismiss for failure to exhaust State remedies. However, the Federal court would have had no basis to grant the writ on the merits of the underlying claim. See Strickland v. Washington, 466 U.S. 668, 697 (1984) ("[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed").
Other arguments made by the defendant "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Order denying second motion for new trial affirmed.