Opinion
09-P-234
02-11-2016
COMMONWEALTH v. HARMON SPARKS, SR.
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
After a jury trial in Superior Court, the defendant was convicted of home invasion (G. L. c. 265, § 18C), assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A[b]), and breaking and entering in the nighttime (G. L. c. 266, § 16). This is a consolidated appeal of the defendant's convictions and of orders on three unsuccessful motions for a new trial. The defendant contends that (1) his trial counsel was ineffective; (2) the trial judge erred in denying trial counsel's motion to withdraw on the third day of trial; and (3) the trial judge considered improper external factors during sentencing.
The third motion was titled, "motion to reconsider or in the alternative, defendant's third motion for new trial."
1. Background. The underlying events revolve around a dispute over money owed to the defendant's girl friend by Steven Nahorniak, the victim. On the night of February 23, 2007, the defendant and his friend, Scott Nadeau, drove to David Harding's house to apparently confront the victim about the debt. The defendant entered Harding's house and approached the victim; the men began to fight. The fight ended abruptly, but the two men moved to the kitchen and the scuffle reignited. John Ricciardi, a friend of the victim, was at the house during the event and testified that he saw the defendant take a small knife out of his pocket and stab the victim three times. The victim testified that he was unable to see a knife but that he felt "three jabs." The defendant then fled the house and the victim chased after him but collapsed in front of the house. The police discovered the victim lying in the snow, and he was transported to the hospital where he was treated for his wounds. The police provided a photograph array to Harding, who identified the defendant as the person who stabbed the victim.
The defendant testified at trial and offered a markedly different account of the incident. The defendant testified that he entered the house to speak with the victim about the debt, and the victim became enraged and attacked him. The defendant further testified that during the scuffle, he saw a shiny object -- inferentially a knife -- in the victim's hand. Based on the defendant's testimony, trial counsel argued that the victim inadvertently stabbed himself while he and the defendant fought in the kitchen. Additional facts related to the trial are reserved for discussion, infra.
2. Ineffective assistance of counsel. The defendant asserts various claims of ineffective assistance of counsel that focus on trial counsel's preparation of the case, theory of defense, and overall performance at trial. However, he failed to raise all of the claims now advanced on appeal in his first motion for a new trial. Accordingly, all claims not asserted in the first motion for a new trial are waived and reviewed under the "substantial risk of a miscarriage of justice" standard. Commonwealth v. Freeman, 352 Mass, 556, 563-564 (1967). See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001) ("All grounds for relief claimed by a defendant . . . shall be raised by the defendant in the original or amended motion [for new trial]").
Turning first to the waived claims not presented in the prior two motions for a new trial, we discern no substantial risk of a miscarriage of justice. The defendant's argument that trial counsel failed to adequately investigate his level of intoxication by further reviewing his medical and psychiatric records, which could have provided evidence negating the specific intent requirements of the charged crimes, is wholly unavailing. At trial, the defendant's testimony was conflicting and inconclusive about his drinking and drug use. On direct examination, the defendant testified that he had been drinking and getting high on that day, but during cross-examination he testified that he had not been drinking. As an indication that he was not overly intoxicated or otherwise incapacitated, he provided a clear description of the incident and Harding's house, and he described himself as "calm. You know, everything was basically normal." Consistent with the evidence that he was not incapacitated, his trial counsel stated the following in her affidavit:
"I did not detect any mental health issues that would cause me to have [the defendant] evaluated for criminal responsibility, competence, or a mental health impairment affecting his mental processes on the night of the incident. [The defendant] had a clear and detailed recollection of events . . . and he consistently maintained that he was in control of himself and only a bit 'buzzed' when he was in Mr. Harding's home."Given the foregoing and in light of the strong case against the defendant, there was no substantial risk of a miscarriage of justice.
In his second motion for a new trial, the defendant also attacked his trial counsel's performance for presenting what he now considers a patently unbelievable defense. Simply stated, the theory of defense was that the defendant did not stab the victim, but that in the midst of their scuffle, the victim stabbed himself with his knife. The defendant testified that he had an altercation with the victim and that, at one point, he saw the victim "grab[] something off the table and was swinging it at me. . . . I could see a reflection from the lamp on the table. He had something in his hand." The defendant continued to testify that he and the victim fell to the ground: "I fell on top of him. And we rolled around a little bit." The theory that the victim inadvertently stabbed himself mirrored the defendant's testimony of the events. Although it was ultimately unsuccessful, it was not a manifestly unreasonable theory of defense, and we do not discern that the presentation of this theory of defense created a substantial risk of a miscarriage of justice. See Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006) (strategic or tactical decision by counsel does not constitute ineffective assistance unless "decision was manifestly unreasonable when made").
The defendant now attacks trial counsel's failure to impeach Harding, the victim, and Ricciardi. "In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Hudson, 446 Mass. 709, 715 (2006), quoting from Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). The defendant's contentions amount to, at most, isolated and slight inconsistencies in the witnesses' testimony. Furthermore, defense counsel explored many of the stated inconsistencies or areas of impeachment through cross-examination and direct examination of defense witnesses.
The defendant asserts that Harding's testimony that the defendant barged into the house should have been challenged by other witnesses' accounts of the defendant being allowed into the house. Further, the defendant asserts that Harding's account of his 911 call was inconsistent with his prior statements and should have been aggressively attacked on cross-examination. The defendant incorrectly asserts that his claim with respect to the 911 call was raised in his second motion for a new trial; in fact, he raised it in his first motion for a new trial. However, we agree with the judge's decision that "[n]othing in the unofficial transcript of the 911 call submitted by the defendant impeaches Harding's testimony that Nadeau and the defendant entered without permission . . . [or] that he called 911 immediately upon seeing the defendant." Accordingly, the defendant was not deprived of any substantial grounds of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant argues the victim should have been impeached on the following grounds: his drug use, which was revealed at trial; the extent of his injuries and hospitalization; and his denial that he had a money dispute with the defendant. The defendant fails to assert that there were substantial grounds for impeachment that trial counsel did not utilize.
The defendant contends that trial counsel failed to impeach Ricciardi concerning his account of the defendant entering the house, his view of the stabbing, and his general credibility. However, these contentions are unsubstantiated. We are similarly unpersuaded by the weight the defendant puts on a police report indicating that Ricciardi was outside at the time of the incident. Indeed, the defendant testified that Ricciardi was in the house at the time of the incident.
When Levi Brown, the defendant's cousin, testified, the prosecutor was permitted to impeach him with his prior conviction of assault by means of a dangerous weapon. The defendant claims that his counsel's failure to impeach the Commonwealth's witnesses was exacerbated by the Commonwealth's impeachment of Brown because it created the appearance that only the defendant's witnesses had criminal records. We reject this claim.
The defendant's remaining claims of ineffective assistance of counsel, which were raised in his first motion for a new trial, are reviewed under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant argues that counsel was ineffective for failing to impeach Ricciardi and the victim with their prior convictions. See G. L. c. 233, § 21. Ricciardi's pertinent conviction was a ten year old conviction of possession of heroin. Although that conviction may have been a permissible form of impeachment, we agree with the motion judge, who was also the trial judge, that this conviction would not have been a powerful form of impeachment because the trial testimony was rife with acknowledgement that several witnesses, including the defendant, used drugs. Furthermore, the defendant fails to show how the jury's verdicts would have been affected had defense counsel introduced evidence of Ricciardi's conviction. See Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). Similarly, despite the judge's concern over the victim's four year old conviction of breaking and entering with intent to commit a felony, given the circumstances of the case, we are not persuaded that impeachment with this conviction would have made an impact on the jury's verdicts. See ibid.
3. Defense counsel's motion to withdraw during trial. On the third day of trial the defendant stated to the judge that he was unhappy with his trial counsel's performance and feared that he would be convicted because of it. Despite his dissatisfaction with counsel, he did not request new counsel or seek to discharge trial counsel. Following the defendant's statement, trial counsel requested to withdraw and stated the following:
"Your Honor, I would move for withdrawal from this case. I believe this is now a contentious relationship between me and my client. He's raised some issues that would put me in a position where we would be at loggerheads in terms of my defense of him, and I would ask the court to strongly consider that."The judge denied the request, stating, "I won't allow withdrawal at this stage of the trial."
"We review the denial of a motion to withdraw counsel for abuse of discretion." Commonwealth v. Melo, 472 Mass. 278, 304 (2015). It is well settled that a defendant's "[f]reedom to change counsel . . . is restricted on the commencement of trial." Commonwealth v. Chavis, 415 Mass. 703, 711 (1993). Although the judge did not make explicit findings on the record, he provided the defendant the opportunity to voice his dissatisfaction with trial counsel, and indeed addressed those concerns. Trial counsel's request to withdraw occurred on the third day of trial, directly following the defendant's criticism of her performance in open court. It is significant, however, that trial counsel failed to articulate that she was unable to effectively represent the defendant, that a conflict of interest had arisen, or that there was an irreconcilable breakdown in communication between her and the defendant. Cf. Commonwealth v. Dunne, 394 Mass. 10, 14-15 (1985) (discussing valid grounds for discharge of counsel). Accordingly, we discern no abuse of discretion in the judge's denial of trial counsel's motion to withdraw.
While it is advisable for trial judges to explicitly state their conclusions on the record pursuant to the Chavis protocol, we discern no abuse of discretion given the facts of this case. See Chavis, 415 Mass. at 711-712.
The defendant connects his argument that the denial of the motion to withdraw was prejudicial with a claim that the judge's instruction to the jury, that they should not hold the defendant accountable for how they felt about defense counsel's performance, exacerbated her ineffectiveness. We see no error in the judge's instruction and reject the contention that the defendant was prejudiced by the instruction or that there was a substantial risk of a miscarriage of justice.
4. Improper considerations during sentencing. The Commonwealth and the defendant submitted a joint sentencing recommendation to the judge for twenty-five to thirty years for the home invasion conviction, a concurrent sentence of nine and one-half to ten years on the assault and battery by means of a dangerous weapon conviction, and another concurrent sentence of nineteen and one-half to twenty years for the breaking and entering in the nighttime conviction. In response to arguments supporting the joint recommendation, the judge stated the following:
"All right, Mr. Sparks. In January your son stood in front of me and I sentenced him to 18 to 20 years in state prison. . . . Looks to me like you had an influence on his life choices."Without further explanation, the judge exceeded the joint recommendation and added five years of probation to be completed at the end of the sentence for the home invasion conviction.
The judge's comment about the defendant's influence on his son had no relevance to the defendant's convictions. Absent explanation by the judge of factors relevant to the defendant's convictions, we cannot say with certitude that the judge's comments concerning the defendant's adverse effect on his son did not inform the decision to exceed the recommended sentence. See Commonwealth v. Mills, 436 Mass. 387, 401 (2002). The verdicts shall stand but the sentences are vacated, and the case is remanded for resentencing before a different judge.
The trial judge has retired.
So ordered.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 11, 2016.