Opinion
16-P-127
02-27-2017
COMMONWEALTH v. Joshua LEWIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a Superior Court jury-waived trial, the defendant, Joshua Lewis, was convicted of trafficking in a controlled substance (cocaine). Prior to trial, the defendant had filed a motion to dismiss the indictment, pursuant to Commonwealth v. O'Dell , 392 Mass. 445 (1984). The motion judge (who was not the trial judge) denied the motion after a nonevidentiary hearing because he "d[id] not find that the Commonwealth knowingly or recklessly presented false and deceptive evidence to the Grand Jury." The defendant appeals, arguing that the denial of the motion to dismiss the indictment was error. Additionally, he raises an ineffective assistance of counsel claim challenging several aspects of trial counsel's performance. We affirm.
Background . At approximately 5:30 A.M. on February 28, 2014, Brockton police officers executed a search warrant on a second story apartment in Brockton. The police had information from a confidential informant that drug dealing was occurring at the apartment, although the confidential informant did not identify the defendant, and the defendant's name did not appear on the warrant.
In executing the warrant, the officers rammed open an entry door, identified themselves as Brockton police, and set off a flash bang device. At the sight and sound of the flash bang, the defendant jumped out of a second story bedroom window. He landed face down on the stairs leading to the front of the building. The defendant was unconscious but eventually came to. He was then handcuffed and taken by ambulance to a hospital.
The officers discovered two plastic bags, each containing smaller bags of a substance that was later determined to be cocaine near the location of the defendant's fall. One bag was discovered directly underneath the defendant and the other bag was on the walkway just a few feet away from the defendant. The officers had not previously seen any objects in those areas. The officers who were stationed at the front entrance of the building did not observe any objects being thrown from the window from which the defendant had jumped.
Inside the apartment and after the defendant had already jumped from the window, the officers observed a man, later identified as Antonio Martins, leaving the bedroom from which the defendant had jumped. Aside from the defendant, there were a total of five adults located in the apartment. During their search of the apartment, the police observed the other adults whispering to each other, and when the officers recovered a gun from the kitchen, Martins immediately claimed ownership of it.
Days later, at the arraignment of all the individuals, Martins's lawyer indicated that, encouraged by his codefendants, Martins wished to speak for himself. Martins, who had no prior criminal record, was only eighteen years old, and the youngest of all the codefendants, then claimed to have discarded the drugs out of the window. At some later point, Martins also executed an undated letter in which he admitted to "thr[owing] [his] drugs out the window." The letter was introduced in evidence at the defendant's trial.
Discussion . 1. Motion to dismiss . The defendant contends that the integrity of the grand jury proceedings was impaired because the Commonwealth failed to inform the grand jury that Martins admitted to throwing drugs out the window from which the defendant had jumped.
In order for a grand jury to return a valid indictment, the Commonwealth must present "sufficient evidence to establish the identity of the accused ... and probable cause to arrest him." Commonwealth v. McCarthy , 385 Mass. 160, 163 (1982). The presentation of the evidence must not be "unfair and misleading." O'Dell , 392 Mass. at 447 (dismissing an indictment where a portion of the defendant's statement, but not exculpatory comments from the same statement, were presented to the grand jury).
An indictment may be dismissed if "(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Silva , 455 Mass. 503, 509 (2009), citing Commonwealth v. Mayfield , 398 Mass. 615, 620-622 (1986).
The grand jury convened in this case on two dates: May 2, and May 30, 2014. It heard testimony from Brockton police Detective Jeffrey Costello and Officer Robert Diliddo. The prosecutor had the following exchange with Detective Costello:
Q .: "Oh, just if I may, when Antonio Martins was brought to District Court and arraigned, he made some statements during his arraignment; is that correct?"
A .: "I believe he did."
Q .: "Yeah. And he indicated that—he took credit for certain things; is that correct?"
A .: "Yes."
Q .: "What did he say, do you recall?"
A .: "The only thing I was told was he said everything there was his."
Q .: "Okay. He indicated that he threw the drugs out the window, that they weren't Joshua Lewis's; is that correct?"
A .: "I don't know that. I don't know that."
Contrary to the defendant's position on appeal, the exchange did not falsely imply that Martins never admitted to throwing the drugs out the window. The officer was clear that Martins took responsibility for "everything." The officer's later comment that he simply did not know whether Martins also claimed to have discarded the drugs out of the window does not disavow the earlier statement that Martins had indicated that "everything there was his" (emphasis added). Nor did the officer's response refute the possibility of Martins having indicated that he threw the drugs out of the window. When the prosecutor very pointedly asked the witness whether Martins had "indicated that he threw the drugs out the window, that they weren't [the defendant's,]" the officer did not deny Martins having made the statement; the officer simply indicated that he didn't "know that." The prosecutor, who is "not required to present all possibly exculpatory evidence to a grand jury," Commonwealth v. Jacobson , 19 Mass. App. Ct. 666, 676 (1985), was not required to press the issue by putting Martins's written statement before the grand jury. Rather, "the Commonwealth must only present exculpatory evidence that would greatly undermine either the credibility of an important witness or evidence likely to affect the grand jury's decision." Commonwealth v. Mathews , 450 Mass. 858, 877 (2008) (quotation omitted).
Martins's statement came days after the incident, and, as indicated by Martins's attorney, only after being encouraged by his older cohorts, who, because of their criminal records, faced the likelihood of more severe punishment if convicted. His claim of having thrown the bags out the window is also overwhelmingly contradicted by other evidence. Officers on lookout outside the apartment saw no drugs thrown from the window; nor did the officers see any drugs on the ground before the defendant fell. It is highly improbable that a bag thrown after the defendant had jumped would have landed directly underneath him. On this basis, the grand jury would have likely disregarded the statement as contrived, and, therefore, it was not likely to affect the grand jury's decision. See Mathews , 450 Mass. at 877. This appears to have been what occurred at trial, where the defendant was convicted even though the statement was in evidence. "It would be rational to assume, therefore, that a failure to disclose the same evidence to a grand jury seeking only probable cause would have had a negligible effect on their decision to indict." Commonwealth v. LaVelle , 414 Mass. 146, 151 n.2 (1993). We see no error.
2. Ineffective assistance of counsel . The defendant's claims of ineffective assistance of counsel, submitted pursuant to Commonwealth v. Moffett , 383 Mass. 201 (1981), also lack merit and, therefore, each challenge requires little discussion. Contrary to the defendant's ineffective assistance claims, defense counsel is not ineffective for making reasoned strategic choices, see, e.g., Commonwealth v. Lynch , 439 Mass. 532, 537, cert. denied, 540 U.S. 1059 (2003), or for failing to pursue motions with a minimal likelihood of success, see, e.g., Commonwealth v. Conceicao , 388 Mass. 255, 264 (1983). Accordingly, counsel was not ineffective for electing not to call Martins as a witness at trial, where, even if the defendant were able to overcome Martins's right not to testify, his testimony would have been cumulative of the statement already in evidence, and calling Martins as a witness would have subjected him to vigorous cross-examination. See Commonwealth v. McMaster , 21 Mass. App. Ct. 722, 735 (1986) (failure of defense counsel to call witness at trial was not unreasonable where the witness's testimony was cumulative, the witness would be impeached with a prior conviction, and defense counsel was "wary of [the witness's] truthfulness"). Counsel also cannot be faulted for not objecting to the admission of the drug certificates, where the chemist testified that more than eighteen grams of powder from the bags that were found near the defendant tested positive for cocaine, and the defendant was charged with trafficking in cocaine "with a net weight of Eighteen Grams or more but less than Thirty-six."
Next, the defendant's claim that counsel failed to move for witness statements lacks evidentiary support. In the pretrial conference report, the Commonwealth agreed to provide counsel with witness statements, and counsel was able to marshal a vigorous cross-examination for each of the witnesses. See Commonwealth v. Sellon , 380 Mass. 220, 227 (1980) (even if counsel's pretrial preparation is deficient, the defendant must also show that the deficiency led to the forfeiture of a substantial defense). Finally, the defendant's claim that counsel was ineffective for failing to object to the admission of a photograph showing where the defendant's hat was found also fails. Counsel is not ineffective in failing to object to the admission of evidence where the objection would have been overruled or the admission of the evidence was harmless. See Commonwealth v. Walker , 460 Mass. 590, 609 (2011). Here, there is nothing that would give rise to a proper objection. Despite the defendant's assertions (unsupported by record citations) about the timing of and lighting conditions for various photographs of the hat and the drugs, there is nothing to suggest the police improperly "planted" or relocated the hat. Accordingly, we discern no "serious incompetency, inefficiency, or inattention of counsel ... falling measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
Judgment affirmed.