Opinion
No. 12–P–1547.
05-31-2016
COMMONWEALTH v. James G. PETERS, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal from his convictions of possession and dissemination of child pornography and possession of a class E substance, and from the order denying his new trial motion, the defendant raises several claims of error. We discern no cause to disturb the judgments or the denial of a new trial and we therefore affirm, addressing the defendant's claims in turn.
1. Questions asked by the trial judge. The defendant first argues that the judge asked too many questions and elicited too much evidence at trial. “There is no doubt that a judge can properly question a witness, albeit some of the answers may tend to reinforce the Commonwealth's case, so long as the examination is not partisan in nature, biased, or a display of belief in the defendant's guilt.” Commonwealth v. Festa, 369 Mass. 419, 422 (1976). See Commonwealth v. Lucien, 440 Mass. 658, 664 (2004). Though the defendant has identified a number of questions posed by the judge to illustrate his contention, he has not explained how any of the judge's questions demonstrated bias or prejudice against the defendant, nor is any bias evident upon our review. This case required the judge, as fact finder, to understand the technical nuances of a sophisticated computer program and the operation of a peer-to-peer file sharing network, as well as the police investigation of files on the defendant's computer and external hard drive. Our review of the transcript reveals that the judge's questions were designed to clarify and explain, for the benefit of her own comprehension, the technical testimony of the expert witnesses. The inquiries did not elicit testimony on subjects beyond those already addressed by the witnesses, much less supply missing elements for the benefit of the prosecution. The judge acted well within her authority in asking these questions.
The cases cited by the defendant are not to the contrary. In Furtado v. Furtado, 380 Mass. 137, 151 (1980), a criminal contempt proceeding, there was no prosecutor, and the judge overstepped his bounds when acting as the prosecutor. Here, the defendant has made no showing that the judge infringed on the prosecutor's role. The defendant's citation to Adoption of Norbert, 83 Mass.App.Ct. 542, 546 (2013), is similarly unhelpful, as that case held that even excessive questioning did not deprive the appellant of impartial justice. Id. at 547–548. The defendant has not established that the judge's questioning was excessive in comparison to the questions posed by counsel, let alone that it deprived the defendant of due process.
2. Definition of “distribute.” The defendant also argues that the judge committed error in denying his motion for a required finding of not guilty, because he claims he did not “distribute” a photograph. The defendant was convicted of “disseminat[ion]” of child pornography under G.L. c. 272, § 29B, as appearing in St.1988, c. 226, § 2. The statute defines “disseminate” as “to import, publish, produce, print, manufacture, distribute, sell, lease, exhibit or display” (emphasis supplied). G.L. c. 272, § 31, as appearing in St.1974, c. 430, § 12. The defendant contends that the judge's use of the word “distribute,” rather than “disseminate,” in denying his motion confines our evaluation of the judge's denial to the question whether the evidence supported a finding of “distribution” as a subset of the statutorily designated methods of “dissemination.” The claim is meritless.
As a threshold matter, we observe that we may affirm the ruling by the trial judge on any ground. See Commonwealth v. Cotto, 471 Mass. 97, 118 (2015). Accordingly, in assessing whether the judge properly denied the defendant's motion, we consider whether the evidence, viewed in the light most favorable to the Commonwealth, supported a conclusion that the defendant disseminated child pornography, regardless of the words used by the judge to explain her ruling. Moreover, we are not persuaded by the defendant's suggestion that the term “distribute,” as used in G.L. c. 272, § 31, requires what he calls “purposeful[ ] transfer[ ] ... to another person.”
In so contending, the defendant cites Commonwealth v. Fluellen, 456 Mass. 517, 518–519, 524 (2010), but advocates a higher standard of purposeful, active delivery than articulated in that case. In any event, as the Commonwealth observes, the defendant's proposed definition is derived from the Controlled Substances Act, G.L. c. 94C, and he does not explain why a definition from an unrelated statute should apply here. Instead, where the relevant statute, G.L. c. 272, § 31, has not defined “distribute,” we consider the usual and accepted meaning of the word. See Commonwealth v. St. Louis, 473 Mass. 350, 357 (2015). Merriam–Webster's Collegiate Dictionary defines “distribute,” as relevant here, as “to give out or deliver.” Merriam–Webster's Collegiate Dictionary 364 (11th ed.2005). By making the file available for a police officer to obtain and enabling the transfer, the defendant satisfied this definition of “distribute.”
In any event, it appears clear to us from the transcript that the judge was using the word “distribute” as a synonym (if not occasionally and incorrectly, as a substitute) for the word “disseminate.”
3. Ineffective assistance of counsel. Lastly, the defendant argues that the trial judge erred by denying, without an evidentiary hearing, his motion for a new trial based on alleged ineffective assistance of counsel. “Ineffective assistance of counsel requires ‘behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,’ which ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ “ Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “The defendant must demonstrate that ‘better work might have accomplished something material for the defense.’ “ Acevedo, supra, quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The defendant contends that his attorney lacked an adequate understanding of computers and file sharing, and he points to two remarks made by counsel. However, these remarks appear to be off-the-cuff, self-deprecating asides made to lighten the mood during complex technical testimony, and do not amount to admissions of incompetence. Defense counsel's cross-examinations of the Commonwealth's witnesses indicate he had sufficient knowledge to present a competent defense. Most importantly, the defendant has not pointed to an “otherwise available, substantial ground” of defense of which he was deprived, and he has not specifically indicated (in the affidavit submitted by the proposed expert or otherwise) what more could have been accomplished for the defense.
We note that, while the defendant contends that trial counsel was ineffective because he did not consult an expert, the record contains no evidence to support the premise, and he cites no legal authority to indicate that the failure of trial counsel to consult an expert would constitute ineffective assistance.
The defendant also complains that his attorney did not adequately defend against the charge of possession of a class E substance. However, the failure to contest the charge vigorously may have reflected a tactical decision, in order to enhance the defendant's credibility on the remaining charges. “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was manifestly unreasonable when made.” Acevedo, supra (quotation omitted). Here, trial counsel's approach to the drug charge was not manifestly unreasonable. Of greater significance, the defendant again has not demonstrated that better work by counsel would have accomplished something material for the defense.
Finally, the judge did not err in denying an evidentiary hearing where the defendant's motion did not raise a “substantial issue” as to ineffectiveness. Commonwealth v. Morgan, 453 Mass. 54, 64 (2009) (quotation omitted).
Judgments affirmed.
Order denying motion for new trial affirmed.