Opinion
14-P-683
03-24-2016
COMMONWEALTH v. GEORGE CORREA.
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, George Correa, was convicted by a jury in the Superior Court of two counts: breaking and entering in the daytime with the intent to commit a felony, G. L. c. 265, § 18, and larceny from a building, G. L. c. 265, § 20. On appeal, he claims that his counsel was ineffective by failing to call an expert witness and failing to introduce certain evidence, that the judge violated his constitutional right to represent himself, and that the judge erred in giving a joint venture instruction. We affirm.
The defendant was also indicted as a habitual offender on both counts. He waived his right to a jury trial on the habitual offender portion of the indictments, and was found guilty as to a habitual offender on both counts.
Background. We recite the facts as the jury could have found them, reserving some facts for our consideration of the issues. On October 22, 2009, Newton police officers responded to an alarm call at a multi-unit condominium complex. After arriving, they noticed a screen removed from a second-floor window and marks along the outside brick wall congruent with someone having climbed up. Inside the second-floor apartment, the police found the two bedrooms ransacked. One bedroom had gouge marks on the floor consistent with a safe being dragged. Missing from the apartment were watches, jewelry, pocketbooks, artwork, and silverware. Specifically, a watch with a blue or black alligator detachable wristband was taken. The watchband was not of a kind available for purchase to the general public.
The homeowner verified that the safe was heavy, and required two people to move it into the apartment. He also claimed he was unable to move it by himself.
Additionally, the alarm panel had been ripped off the wall. When dusted for fingerprints, one full fingerprint and a partial print were found on the backside of the panel. When a fingerprint from the alarm panel was entered into the automated fingerprint identification system (AFIS) fingerprint database, the defendant's fingerprint was identified as a potential match. After a detective concluded the fingerprints matched, and after the match was verified by two other police officers, the defendant's residence was searched pursuant to a warrant and he was taken into custody. During the search, the police found various pieces of jewelry including a blue watchband purported to be from the stolen watch.
Earlier, on August 28, 2009, the defendant had been booked and fingerprinted for an unrelated crime.
The defendant resided with his mother and his sister.
Prior to trial, the defendant was granted funds to secure a fingerprint expert. A week before trial, defense counsel decided not to utilize the expert, deciding instead to focus on cross-examining the Commonwealth's witnesses. The defendant was convicted of both counts, and his subsequent appeal was stayed so that he could file a motion for a new trial. The trial judge denied the motion. The defendant's appeal from that denial is now consolidated with his direct appeal.
Discussion. Ineffective assistance of counsel. We review a denial of a motion for a new trial for an abuse of discretion. See Commonwealth v. Rice, 441 Mass. 291, 302 (2004). In light of a claim for ineffective assistance of counsel, we examine "whether there has been serious incompetency, inefficiency, or inattention of counsel . . . and . . . whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant claims two such failures -- the lack of expert testimony, and the introduction of his sister's necklace, which was found in his apartment.
We do not question counsel's "arguably reasoned tactical or strategic judgments." Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) (holding the decision of calling a witness to be a tactical or strategic decision). The decision of defense counsel not to call the defense expert was a decision that was not "manifestly unreasonable." Commonwealth v. Delong, 60 Mass. App. Ct. 122, 131 (2003). Defense counsel did not "forgo raising [a] defense" to the fingerprint evidence; rather, she focused on attacking it through vigorous cross-examination as she believed that introducing the defense expert would subject his opinion to strong impeachment evidence that would impact his credibility. See Commonwealth v. Bannister, 15 Mass. App. Ct. 71, 76 n.3 (1983). The record supports the judge's conclusion that the tactical decision not to call the defense expert was one that was not "manifestly unreasonable."
Defense counsel was in the best position to evaluate the exculpatory, or inculpatory, effect of the testimony.
Similarly, defense counsel's introduction of evidence of other jewelry found at the defendant's residence provided support for the theory that any and all items found there belonged to the defendant's relatives. By introducing this evidence, the defense attempted to subvert the Commonwealth's theory that the watchband found at the defendant's residence originated from the stolen watch. The defendant's claim that introducing this evidence led the jury to believe that he was guilty of thefts from his own family is undermined by the fact that the jury had no knowledge of his prior criminal history, which consisted of numerous convictions of breaking and entering. By introduction of this evidence, the defendant was not deprived of an otherwise available substantial ground of defense. See Commonwealth v. Dykens, 438 Mass. 827, 838 (2003) ("We do not deem counsel's strategy impermissible simply because it was not successful"). The trial judge did not abuse her discretion in denying the motion for a new trial.
Right to self-representation. Although the defendant's general assertion of the right to represent himself is correct, as he made no such request until after the start of trial, "the request is subject to the sound discretion of the trial judge." Commonwealth v. Miller, 6 Mass. App. Ct. 959, 960 (1978). "The judge may take into account the respective interests of the defendant and the Commonwealth and may consider, among other things, the fact that 'the trial is in an advanced stage.'" Ibid., quoting from United States v. Dougherty, 473 F.2d 1113, 1124 (D.C. Cir. 1972).
Prior to the start of trial, defense counsel moved to withdraw. Because trial was imminent, the judge explained to the defendant that if he wished to dismiss defense counsel, he would have to represent himself. At that point the defendant decided to proceed with counsel.
A defendant's refusal to accept court-appointed counsel "is a voluntary waiver of the right to counsel, and the waiver is effective if the decision is made with a sense of the magnitude of the undertaking and the disadvantages of self- representation . . . : an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one's story" (citations and quotation marks omitted). Commonwealth v. Lee, 394 Mass. 209, 216 (1985).
The defendant's behavior during trial indicates that he lacked such awareness and could not follow courtroom decorum. On the second day of trial, in response to the judge's denial of his request to represent himself, the defendant stated that there would be "issues in th[e] courtroom" if he were not allowed to argue the case. After this incident, the judge requested that defense counsel confer with the defendant and include his questions in her examination if she deemed them appropriate.
This comment followed the judge's denial of the defendant's request to personally question the witness. The defendant stated that he had "amicus" and "due process rights" that allowed him to represent himself despite acknowledging his counsel was competent.
On the fourth day of trial, the defendant requested to pose a question that was previously barred by a ruling on a motion in limine. When the judge refused, the defendant protested in open court and with the jury present. The defendant was removed from the courtroom, and court was recessed for the day. The next day, defense counsel moved for a mistrial based on the previous day's incident. The judge denied the motion, but after an outburst by the defendant during which he used several expletives and addressed one to the judge, the judge ordered the trial to be continued with the defendant watching remotely.
In response to the judge's ruling on the motion in limine, the defendant stated: "I want to go into it. I mean, we got information here with regards to this issue." When the judge called a recess, the defendant began objecting while the jury filed out, saying: "This is crazy, man. Come on. Come on. Slow down. Slow down. This is crazy. This is an injustice you're letting happen in the courtroom, Your Honor. That's a joke."
The defendant stated: "I don't give a fuck what she says, man. Let the record state that. Fuck you." He then called the judge a "fucking cunt" and a "fucking bitch."
The next day, the defendant apologized to the judge and the trial continued without further interruption. "[I]n the circumstances, the judge reasonably dealt with the defendant's conduct as an unjustified breach of the decorum of the trial, and in so doing did not deprive the defendant of a constitutional right." Lamoureux v. Commonwealth, 353 Mass. 556, 559 (1968). There was no abuse of discretion.
Joint venture instruction. The defendant asserts that the judge improperly instructed the jury on joint venture. "When there is evidence that more than one person may have participated in the commission of the crime, judges are to instruct the jury" on joint venture. Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009).
Although circumstantial, the evidence of the missing safe suggests that more than one perpetrator committed the crime. The safe was three or four feet tall and wide, and required two people to move. The police responded within ten minutes of the alarm and, when they arrived, no people or vehicles were in the vicinity. Meanwhile, the defendant was represented as being disabled and on medication. A joint venture "may be proved by circumstantial evidence." Commonwealth v. Bright, 463 Mass. 421, 435 (2012), quoting from Commonwealth v. Braley, 447 Mass. 316, 320 (2007). The record supports such an instruction; the judge did not err in giving it.
The defendant raises an objection to the form of the joint venture instruction for the first time in his reply brief; we need not consider the issue. See Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 632 n.2 (2000). However, were we to consider it, we would find no substantial risk of a miscarriage of justice, although the instruction failed to conform to Commonwealth v. Zanetti, 454 Mass. at 470. The defendant specifically objects to the judge's alleged failure to instruct on intent in the nonpresent theory of joint venture. However, any error in the instruction was allayed by the judge's concluding statement that "[t]he only difference between the two theories of joint venture liability is the presence of the defendant at or near the scene of the crime." Moreover, there is virtually no realistic concern that the jury convicted the defendant on a theory of remote participation; the entire case was tried on the strength or weakness of the fingerprint evidence tying the defendant to the scene of the burglary.
Judgments affirmed.
By the Court (Green, Katzmann & Grainger, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: March 24, 2016.