Opinion
14-P-710
05-18-2015
COMMONWEALTH v. SARY RATH.
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
The defendant Sary Rath appeals from the denial of his motion for a new trial. We affirm.
Background. On May 11, 2010, a jury convicted the defendant of possession of a firearm and possession of a loaded firearm. After his trial counsel neglected to file an appeal, successor counsel filed a motion for a new trial which the judge denied after hearing oral arguments. The crux of the motion was that the defendant was denied the effective assistance of counsel by counsel's failure to object to portions of the testimony of Lowell police Officer Nathan Bowler. In order to give context to the claim, we recite the facts as presented at trial.
On October 14, 2008, at approximately 11:00 P.M., Officer Bowler observed a motor vehicle operating erratically. The officer stopped the vehicle and was able to see that there were four occupants inside. He noticed the two passengers in the rear seat making unusual movements; they were "adjusting their buttocks" and "moving up and down." Officer Bowler approached the vehicle and immediately recognized the driver and the two passengers seated in the rear. The defendant was sitting in the rear passenger side seat. The defendant continued to move his hands out of view after Officer Bowler approached the car and told the occupants to remain still and keep their hands where he could see them. These actions by the defendant caused Officer Bowler to be concerned for his safety.
Back-up units arrived, and Officer Bowler advised the other officers that he had decided to remove the occupants from the vehicle in order to conduct a patfrisk. The defendant was the first person ordered to exit, and he did so in an unorthodox manner by backing out "with his buttocks facing" Officer Bowler. The defendant bent at the waist, and as he did so, Officer Bowler heard a sound which he believed to be the sound of metal hitting the roadway. Officer Bowler observed the defendant move his feet as if kicking an item under the car. Shortly thereafter, another officer found a gun behind the right front tire of the vehicle. Besides testifying that he knew the three men in the vehicle and that he immediately recognized the defendant, Officer Bowler also testified that he advised the other responding police officers of his knowledge of the three men.
The propriety of the exit order and subsequent patfrisk are not at issue in the appeal.
The defendant filed a motion for a new trial on the basis that Officer Bowler's testimony about recognizing the defendant was prejudicial, and that his trial counsel was ineffective for failing to move to strike it. The motion judge, who was also the trial judge, filed comprehensive findings and rulings in support of her denial of the motion for a new trial.
Discussion. We review the denial of a motion for a new trial for an abuse of discretion, giving particular deference "where the judge acting on the motion was also the trial judge." Commonwealth v. Lucien, 440 Mass. 658, 670 (2004). In reviewing a claim of ineffective assistance of trial counsel, we "consider whether there was an error in the course of the trial . . . and, if there was, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678, 682 (1992). "Where the claim of ineffectiveness involves a tactical decision of defense counsel, we inquire whether the decision was 'manifestly unreasonable' when made." Lucien, supra, quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
We find no abuse of discretion in the judge's decision. The judge correctly analyzed the relevant cases that deal with the presentation of prior police knowledge of the defendant, and we agree with her that this case is easily distinguished from Commonwealth v. Gonzalez, 47 Mass. App. Ct. 255 (1999), and more in line with the reasoning of Commonwealth v. Leach, 73 Mass. App. Ct. 758 (2009). Officer Bowler's comments did not imply that the defendant had committed prior bad acts, and even if they did, the remarks "w[ere] isolated and not adverted to in closing arguments." Gonzalez, supra at 259. Thus, even if this case did more closely resemble Gonzalez, "[i]nsufficient prejudice attached to the remark to have it constitute reversible error." Ibid.
In Gonzalez, supra at 259, the officer "was asked whether he had known the defendant and was allowed to answer that he knew the defendant [and another] from 'dealing with them in the past.'" We held that "[a]ssociational evidence of that sort is suspect, and the question ought not to have been asked." Ibid. In Leach, supra at 768, we rejected the defendant's claim that the prosecutor committed error "by eliciting testimony from [the detective] that he was familiar with the voices of [two codefendants] because he 'ha[d] engaged them several times during the normal course of [his] duty . . . [at] Brockton High School, when [he] was a school police officer[,]" because we did not consider the detective's response to suggest that the codefendants had committed prior bad acts.
Trial counsel for the defendant stated in his affidavit that the failure to move to strike Officer Bowler's testimony was not a tactical decision. Even if this were so, we agree with the judge that such decision would not have been "manifestly unreasonable" because an objection would have highlighted the statements to the jury or would have opened the door to an explanation of why Officer Bowler was familiar with the defendant.
Finally, even if trial counsel's failure to move to strike constituted ineffective assistance, the defendant has not shown "that, but for counsel's error, something material might have been accomplished in the defendant's favor." Wright, supra at 682. See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The judge characterized the Commonwealth's case as "overwhelming" in her ruling, and "[w]here evidence of guilt is strong and one-sided, it is generally concluded that no substantial risk exists of a miscarriage of justice." Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986). If a convicted defendant "is unable to show . . . that, as to an unpreserved claim of error, there is a substantial likelihood of a miscarriage of justice, he [can] not prevail by asserting as to the same issue the ineffectiveness of his counsel." Wright, supra.
Order denying motion for a new trial affirmed.
By the Court (Trainor, Wolohojian & Carhart, JJ.)
The panelists are listed in order of seniority.
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Clerk Entered: May 18, 2015.