Opinion
19-P-525
07-27-2020
COMMONWEALTH v. RAMON VALLE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant was charged with three counts of home invasion, G. L. c. 265, § 18C, and three counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B (b). After a jury trial, he was convicted on all counts. The trial judge sentenced the defendant to a twenty to twenty-two year term of incarceration for his home invasion convictions and a four to five year term to run concurrently for his assault by means of a dangerous weapon convictions.
The defendant timely filed a notice of appeal from his convictions. He then filed a revised motion for a new trial and after an evidentiary hearing before the trial judge, the defendant's motion was denied. The defendant later moved for postconviction discovery, which was allowed as to the mental health records in the possession of the Commonwealth of its witness, L.M. The defendant then filed a consolidated motion for reconsideration of the denial of his revised motion for a new trial and to present additional evidence in support of the motion. The judge denied this motion. The defendant now appeals from the judgments and from the orders denying his postconviction motions.
Background. On May 22, 2014, nineteen year old S.E. and her friends L.M. and S.H. were socializing in S.E.'s new apartment in Springfield when two armed men broke into the apartment. The primary factual dispute at trial was whether the defendant was one of these men.
a. The Commonwealth's evidence at trial. We recite the relevant facts in the light most favorable to the Commonwealth. S.E. had just received her keys for her new apartment on the second floor of the building on the afternoon preceding the break-in. When she came to the building with her mother to pick up the keys, S.E. exchanged greetings with the defendant in the building's front yard. She told the defendant that she was moving into the apartment upstairs, and that they would be neighbors. The defendant lived in an apartment on the first floor; he worked as a caretaker to P.R., a quadriplegic man who resided in the first floor apartment.
Later that night, S.E. invited friends L.M., S.H., and two other women, a couple, to spend the evening celebrating and drinking with her in her new apartment. Around 11 P.M., the couple got into an argument and left the apartment to finish their altercation outside. The couple was fighting loudly and S.E. and L.M. followed them downstairs to tell them to quiet down. When they came outside, they saw two men in the yard with the couple. S.E. recognized one of these men, the shorter, bald man, as the defendant, with whom she had spoken that afternoon. L.M. also identified the defendant as the shorter of the two men she had seen in the yard. The defendant told the women, in so many words, "we don't need this type of thing going on around here, we don't need the cops coming here because we got things going on down here." A neighbor also testified that she saw the defendant speaking with the women outside and that there was "negative energy" between them.
The couple that had been fighting departed and S.E., L.M., and S.H. returned to S.E.'s apartment. By then, all three women had been drinking for several hours. S.E. was in the bedroom when she heard gunshots. She turned off all of the lights in the bedroom and lay on the floor. Only minutes later, the women heard somebody running up the back stairs and heard the back door being kicked in.
S.E. saw a tall man with a shotgun entering her apartment through the back door. S.E. saw a second, shorter, bald man holding a handgun in the living room; she recognized him as the defendant. L.M. testified that she, too, saw two men with guns in the apartment. The tall man pointed a shotgun at L.M.'s head and the defendant pointed the handgun at S.E. and L.M. S.E. testified that the defendant told them to "get out of here. We don't want nobody up here causing problems. We don't got time -- we doing things downstairs. We don't have time for the police."
Because she had been looking down at the floor throughout the encounter, S.H. could not describe the intruders.
Fleeing these men, S.E. and L.M. immediately ran down the stairs and outside; they hid from the men in the backseat of S.H.'s car. While in the car, S.E. and L.M. kept looking out through the windows and saw the defendant, and the tall man with him, walking around the building and "circling around the car." S.H., meanwhile, hid in the building's basement.
Officer Brantley, the first officer to reach the scene, had been dispatched to the area after numerous 911 callers reported that shots had been fired in the neighborhood and that a female had been shot. When she pulled up, Brantley saw two males on the building's porch, a tall man and a shorter, bald man, who she identified at trial as the defendant; she briefly spoke to the defendant about reports of gunfire in the area.
S.E., L.M., and eventually S.H. rushed into the back of Brantley's cruiser. All three women were crying and appeared hysterical. When Brantley, believing someone had just been shot, initially asked them what had happened, the women were hesitant to tell her anything. They said that someone was "trying to kill them" and asked her to drive down the street, out of view of the building. She did. The women then reported that they had not wanted to speak back at the building because the two men standing on the porch, with whom Brantley had spoken, were the ones who had broken into S.E.'s apartment. S.E. described the break-in and the intruders to Brantley: one was wearing a hoodie, the other man was short and bald and just had a shirt on, and neither had anything covering their faces. She told Brantley that these men were her neighbors.
Brantley then radioed the other officers who had responded to the area. These officers were investigating the reports of the shooting in the neighborhood. They recovered shell casings on the ground two or three houses away from where S.E.'s apartment was located. Though they searched for signs of the guns around the building, they found none. Officers found that S.E.'s apartment door had been forced open and the door frame had separated from the wall.
Over the radio, Brantley identified the men on the porch with whom she had spoken as the men who had attacked S.E., L.M., and S.H. Officer Barker, who responded to the scene, testified that Brantley had said that "multiple females she was talking to told her that the two individuals on the porch were the ones who were doing the shooting," though he appears to have been mistaken. Officers took the defendant and the tall male with him, Leroy Machuca, into custody.
In denying the defendant's revised motion for a new trial, the trial judge found that this testimony was inaccurate. Officer Brantley testified that she radioed the other officers to communicate what the women had said to her but there is no evidence that these women ever told Brantley that the defendant was the shooter. In a pretrial hearing, the prosecutor also represented that "at no point in time did [S.E. and L.M.] indicate that these [the defendant and Machuca] were the individuals who were outside firing any particular firearm."
S.E. and L.M. then participated in individual showup identification procedures. The detective who conducted these procedures, Detective Longo, drove down the street to where Brantley had been speaking with the women, drove them one at a time in his cruiser back to the scene, and conducted the showup procedures. He separated S.E. and L.M. and instructed each using the standard instructions given before every showup identification. Each viewed first Machuca and then the defendant; when each woman viewed him, the defendant stood, handcuffed, in the street about ten yards away.
Detective Longo instructed S.E. and L.M. that: "the person that they're being shown may or may not be the person that we're looking for that they described to us. That it's just as important for us to clear the innocent as it is for us to identify those responsible. I explain to them that clothing may have changed since the incident, focus on the features of the face. . . . [I]f they are able to make an identification, in their own words to express to me their level of certainty. And . . . they are not to discuss the process with anyone else."
Upon seeing Machuca in the showup procedure, S.E. reported that he had been the tall man who had broken down her back door, had come into her apartment, and had pointed a shotgun at L.M.'s head. She identified the defendant as the second man with the handgun. L.M., too, identified both the defendant and Machuca as the perpetrators. Longo testified that L.M. had said "she was certain" of her identifications. S.E. and L.M. identified the defendant in court as the second intruder.
b. The defense. The defendant presented an alibi defense. P.R., for whom the defendant was a caretaker, testified that the defendant was caring for him the night of May 22, 2014, and had been by his side at the time of the break-in.
P.R. testified that the defendant had been about to go buy cigarettes when they heard gunshots nearby. The defendant ran back into the house and pulled P.R. to the floor. The defendant, P.R. testified, was by his side from the moment he heard gunshots to the time that police arrived at the building. P.R. testified that Machuca, who was arrested with the defendant, was P.R.'s nephew and was also in the apartment all night.
P.R. also allowed police to search his apartment for any evidence of weapons on the night of the break-in. Police found no evidence of firearms in P.R.'s apartment or on the defendant's person. P.R. gave the police permission to search the entire apartment including his two safe boxes, though officers could not find the key to the smaller of the two safes. Officers were also unable to search the basement because the door was locked with a padlock, the key to which could not be found at the time.
Defense counsel also cross-examined both S.E. and L.M. about the circumstances under which they viewed the men who broke into the apartment. Counsel elicited testimony that everyone had been drinking for several hours, that they were scared, and that there was limited lighting in the apartment with the bedroom lights turned off. Defense counsel also pointed out in closing argument that S.E. and L.M. made their initial identifications of the defendant to Brantley together and may have influenced each other's accounts and tainted one another's identifications. She argued that they had mistakenly identified the defendant simply because he was the last male they saw before the break-in.
Defense counsel did not affirmatively present evidence that whoever had been firing gunshots in the area minutes before the incident had been the one to break into S.E.'s apartment. The prosecutor also did not argue that the defendant had fired the gunshots, she argued instead that the gunshots gave the defendant a motive to drive the women out of the apartment; "[a]lready agitated" by the fight he had witnessed earlier in the evening and concerned that these women would draw police attention to his home, the defendant decided to force the women out.
c. The jury instructions. The judge instructed the jury on the elements of home invasion, including the knowing entry of a dwelling place of another. The judge explained:
"[T]he Commonwealth must prove beyond a reasonable doubt that the defendant entered the dwelling unlawfully. When I say dwelling, I refer to the apartment in question in this case. . . . The Commonwealth must show that the premises were presently a place for the living and habitation of persons other than the defendant. Dwelling houses have been defined as buildings that may be used as dwellings, such as apartment houses, tenement houses and boarding houses."
The judge also instructed the jury on the factors to be considered in determining the credibility of an eye-witness identification, in accordance with Commonwealth v. Gomes, 470 Mass. 352 (2015). The judge omitted the portion of the Gomes instruction that the jury may consider, in assessing an eye-witness's memory, that a witness's exposure to identifications made by other witnesses or other descriptions or influences may affect that witness's independence and reliability. Id. at 384-385. Determining that there had only been one formal identification procedure in this case, the judge also did not mention the effects of participating in multiple identification procedures on a witness's memory. Id. at 388. He did not instruct the jury on how they should consider showup identifications during which the recommended police procedures designed to diminish suggestiveness were not followed. Id. at 387.
Defense counsel made no objection to these instructions, and the jury convicted the defendant of three counts each of home invasion and assault by means of a dangerous weapon.
d. Sentencing. In sentencing the defendant, the judge considered that home invasion convictions carried a mandatory minimum sentence of twenty years, as well as the mitigating information presented by defense counsel. Counsel argued that the defendant had been gainfully employed as a caretaker for people like P.R., he had a young daughter, he was very close with his family in Puerto Rico, and had no criminal record in Massachusetts. She also advocated for a sentence of eight to twelve years of incarceration with additional probation, as opposed to the twenty-year committed sentence suggested by the Commonwealth. The judge sentenced the defendant to twenty to twenty-two years of incarceration for his home invasion convictions, with another four to five year sentence to run concurrently for his assault by means of a dangerous weapon convictions.
e. The defendant's new trial motion. The defendant filed a motion for a new trial in which he argued, primarily, that he received ineffective assistance from trial counsel. The trial judge denied the defendant's motion, finding that defense counsel's performance had "not come close to approaching serious incompetency," and any missteps that she made were unlikely to have influenced the jury's verdict because of the strength of the Commonwealth's case. In his consolidated motion for reconsideration of the denial of his motion for a new trial, the defendant also argued that, in light of newly discovered evidence that L.M. has schizophrenia, as well as vision deficits, he is entitled to a new trial. The judge found this evidence did not create a substantial risk of a miscarriage of justice. The defendant now appeals.
Discussion. 1. Home invasion. To convict the defendant of home invasion, the jury must find beyond a reasonable doubt that the defendant "knowingly enter[ed] the dwelling place of another knowing or having reason to know that one or more persons are present within." G. L. c. 265, § 18C. The defendant first argues that the evidence was insufficient to prove that S.E.'s apartment was a "dwelling place of another" within the meaning of the statute. We disagree.
Though the phrase "dwelling place of another" is not defined by § 18C, we have previously defined it as "a place of habitation." Commonwealth v. Marshall, 65 Mass. App. Ct. 710, 716 (2006). In Commonwealth v. Kingsbury, 378 Mass. 751, 757 (1979), the Supreme Judicial Court found an apartment to be inhabited as a dwelling when "the new tenants had taken possession of the apartment with an intention to live there [and] they had a right of access and right to move in at the time of the break-in." Though in Kingsbury the court interpreted the phrase "dwelling house" in the context of burglary statutes, as opposed to the phrase "dwelling place of another," we look "to the closely related burglary statutes . . . in order to ascertain the meaning of 'dwelling place of another.'" Marshall, supra at 715.
Contrary to the defendant's argument, the rule of lenity does not apply here, as an ordinary person would understand that a dwelling place would include an apartment rented by a new tenant who has just introduced herself as a neighbor. See Commonwealth v. Twitchell, 416 Mass. 114, 123 (1993).
Viewed in light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence that S.E.'s apartment was a dwelling place was sufficient to support a finding that, as the instructions stated, the apartment was "presently" the dwelling place of another. The jury heard evidence that S.E. had rented the apartment, that she had obtained her key, and that she had introduced herself to the defendant as his new neighbor. The jury could find that this apartment was presently a dwelling place of S.E. as she had the right of access and habitation at the time of the incident. That she had not yet slept there, indeed, that she also maintained another dwelling place in which she planned to sleep that night, does not change that.
Accordingly, we find no merit in the defendant's arguments that counsel was ineffective for failing to raise these arguments on the meaning of "dwelling place of another." We also conclude that the defendant was not deprived of a substantial ground of defense because counsel failed to request that the judge instruct the jury on home invasion's lesser included offense. See Commonwealth v. Donlan, 436 Mass. 329, 337 (2002), quoting Commonwealth v. Egerton, 396 Mass. 499, 505 (1986) (for instruction to be required, "there must be 'some evidence on the element differentiating the greater and lesser offenses,' or, stated differently, some evidence that disputes or puts into question the [distinguishing] element" ). Here, there was no real dispute as to this element.
The defendant also argues that the judge erred in defining a dwelling place of another in his instructions. As there was no objection at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Buttimer, 482 Mass. 754, 773 (2019).
The judge here properly instructed the jury that the Commonwealth "must show that the premises were presently a place for the living and habitation of persons other than the defendant." See Marshall, 65 Mass. App. Ct. at 716. The defendant argues that the judge's examples of what may be considered a dwelling, including an apartment house, allowed the jury to believe (1) that the entire apartment building may be found to be the dwelling, or (2) any apartment, inhabited or not, could be a dwelling place. Not so. The judge instructed the jury that when deciding whether the defendant entered a dwelling, the premises that they were to consider was S.E.'s apartment itself: "When I say dwelling, I refer to the apartment in question in this case." The defendant also argues that this exact instruction directed the jury to find that the apartment was a dwelling place. It did not. We consider the judge's statement in the context of his full instruction on this element of home invasion. See Commonwealth v. Torres, 420 Mass. 479, 490-491 (1995). Here, the judge's statement merely clarified that the premises the Commonwealth purported to be the "dwelling place of another," was S.E.'s apartment; the Commonwealth had to prove that the premises were, at the time of the break-in, a place for living and habitation of someone other than the defendant. Having reviewed the defendant's claims of error with regard to the judge's instruction on home invasion, and the charge in its entirety, as quoted supra, we discern no error that would rise to the level of a substantial risk of a miscarriage of justice.
2. Ineffective assistance of counsel. The defendant next argues that he received ineffective assistance of counsel and that the trial judge erred in denying his motion for a new trial. To be entitled to a new trial based on ineffective assistance of counsel, the defendant must establish that trial counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and that counsel's errors "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). For the following reasons, we conclude that counsel's performance does not entitle the defendant to a new trial.
Several of the defendant's claims of ineffectiveness must be rejected because, even had trial counsel undertaken the exact efforts that the defendant suggests she should have, those efforts would likely have proven unsuccessful. See Commonwealth v. Clemente, 452 Mass. 295, 327 (2008).
The defendant argues first that counsel should have sought to suppress S.E.'s and L.M.'s statements to Officer Brantley based on "common-law principles of fairness" because suggestive circumstances made their identifications unreliable. We disagree. When a defendant moves to exclude identification evidence based on common-law principles of fairness, "the judge must determine whether the identification is so unreliable that it would be unfair for a jury to give it any weight in their evaluation of the evidence." Commonwealth v. Johnson, 473 Mass. 594, 602 (2016). The factors that the defendant raises as undermining the reliability of the S.E.'s and L.M.'s statements, while relevant to their weight, would not have rendered them inadmissible such that a motion to suppress would have succeeded. See id. at 601. See also Commonwealth v. Walker, 460 Mass. 590, 606-607 (2011) ("where the alleged unreliability of the eyewitness identification arose from distance, lighting, the brevity of the observation, and the emotional state of the eyewitness at the time of the observation . . . [t]he jury were capable of making an informed assessment of the accuracy of such an identification and assessing its weight").
Neither did the admission of their statements violate the defendant's due process rights. Identification evidence may be suppressed on due process grounds where the defendant demonstrates by a preponderance of the evidence that the police used "unnecessarily suggestive" procedures. Walker, 460 Mass. at 599. However, "[d]ue process does not require exclusion of identification testimony" if "the suggestive circumstances do not arise from police activity." Commonwealth v. Odware, 429 Mass. 231, 236 (1999). These initial statements identifying the defendant were not induced by unnecessarily suggestive conduct by Brantley. The evidence was that Brantley inquired, after three terrified women told her that someone was trying to kill them, what had happened to them. This discussion was not unnecessarily suggestive, nor does it appear to have even been an intentional identification event. Counsel was not ineffective for not moving to suppress these statements, as such a motion would have failed. See Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
Counsel was also not ineffective for failing to suppress S.E.'s and L.M.'s showup identifications. "A showup identification is disfavored because it is inherently suggestive, but it violates due process only where the defendant proves by a preponderance of the evidence that it is 'unnecessarily . . . suggestive.'" Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014), quoting Commonwealth v. Phillips, 452 Mass. 617, 627-628 (2008). An unnecessarily suggestive showup procedure is one "where there was not 'good reason' for the police to conduct it under the circumstances," or the procedure is "conducive to irreparable mistaken identification." Figueroa, supra, quoting Phillips, supra at 628.
Here, S.E. and L.M. identified the defendant in showup procedures that took place in the immediate aftermath of the break-in. Especially because these witnesses had communicated that the two men had threatened them while armed, police had good reason to conduct the showup as soon as possible. See Figueroa, 468 Mass. at 217 ("there is good reason for a showup identification where an eyewitness is shown a suspect promptly after the commission of the crime"). See also Commonwealth v. Crayton, 470 Mass. 228, 235 (2014) ("there is generally 'good reason' where the showup identification occurs within a few hours of the crime"). "[A] prompt identification procedure [is] more likely to be accurate, because the eyewitness's memory is fresh, but also, . . . it allows the police to learn quickly whether the suspect is the perpetrator of the crime." See Commonwealth v. Meas, 467 Mass. 434, 441 (2014) (good reason includes "usefulness of prompt confirmation of the accuracy of investigative information, which, if in error, will release the police quickly to follow another track"). Although firearms were never found, that does not alter the "good reason" for the showup that existed at the time it took place.
Though the defendant argues that these showup procedures still created a substantial likelihood of irreparable misidentification, we disagree. The showup procedure was conducted by a different officer than the one with whom S.E. and L.M. had originally spoken about the break-in. Detective Longo gave S.E. and L.M. instructions designed to mitigate the suggestiveness of the identification procedure. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009). And S.E. and L.M. were separated for their identification procedures. See Commonwealth v. German, 483 Mass. 553, 560 (2019). While the fact that the defendant was handcuffed during the procedure was suggestive, it does not require exclusion of the identification. See Phillips, 452 Mass. at 628. Neither did the fact that S.E. and L.M., together, discussed the break-in with Brantley before they conducted the showup procedures. See Commonwealth v. Lay, 63 Mass. App. Ct. 27, 35 (2005) ("that [two witnesses] had previously discussed the fight with each other, . . . [did] not provide a basis for concluding that the identification procedure itself was suggestive").
As we conclude that neither S.E.'s and L.M.'s initial identification statements nor their showup identifications were unnecessarily suggestive, there was no basis upon which to exclude S.E.'s and L.M.'s in-court identifications of the defendant. See Crayton, 470 Mass. at 238.
The defendant also argues that several of trial counsel's strategic decisions rendered her performance ineffective. We will only find counsel ineffective based on tactical choices if those choices were "'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). We "search for rationality in counsel's strategic decisions, taking into account all the circumstances known or that should have been known to counsel in the exercise of [her] duty to provide effective representation to the client and not whether counsel could have made alternative choices." Commonwealth v. Kolenovic, 471 Mass. 664, 674-675 (2015).
The defendant argues that counsel's decision not to use an eyewitness identification expert was manifestly unreasonable. We are not persuaded. Though there are cases in which defense counsel would be expected to seek the assistance of an expert to adequately prepare for trial, see Commonwealth v. Alcide, 472 Mass. 150, 160 (2015), a decision to challenge an eyewitness identification through cross-examination and argument, as opposed to through expert testimony, is not necessarily an unreasonable one. See Commonwealth v. Ayala, 481 Mass. 46, 64 (2018); Commonwealth v. Watson, 455 Mass. 246, 257-258 (2009).
Trial counsel testified at an evidentiary hearing on the defendant's motion for a new trial, and asserted in her affidavit that she decided not to consult an expert because she did not believe that doing so would substantially add to the defendant's alibi defense. S.E.'s and L.M.'s accounts suggested that they had observed the perpetrators during the break-in and while they hid in S.H.'s car until Officer Brantley arrived, creating little chance of a mistaken identification due to unconscious transference. Counsel also testified that if she called an eye-witness identification expert, she would have risked a damaging cross-examination on the factors present in the identifications that suggested increased reliability.
Even if, as the defendant argues, there was some opportunity to raise this defense because S.E. and L.M. did not continuously observe the intruders, counsel was not required to pursue every possible defense, regardless of her assessment of its strength. See Commonwealth v. Blake, 409 Mass. 146, 162 (1991).
Having reviewed counsel's testimony, as well as the testimony of eyewitness identification expert Dr. Sommers, an expert like the one the defendant asserts counsel should have consulted and whose testimony he offered in support of his motion for a new trial, we conclude that the decision to forego the consultation and testimony of an expert was not a manifestly unreasonable one. Several factors, such as the immediacy of S.E.'s and L.M.'s identifications and their prior interactions with the defendant, would have, based on Dr. Sommers's own testimony, suggested that their identifications were more reliable. It was not unreasonable to focus the jury's attention on the defendant's alibi witness, rather than on a potentially damaging expert.
Neither was counsel ineffective for failing to present evidence to support a third-party culprit defense. The defendant argues that counsel should have marshalled evidence of the shooting in the area to show that whoever had been firing shots nearby, not the defendant, broke into S.E.'s apartment. Counsel did argue this, but did not introduce witnesses to the shooting in order to portray the shooters as the third-party culprits. Counsel testified that she did not present a witness to the shooting to support a third-party culprit defense because her investigation suggested that the nearby shooter drove away from the area before the break-in occurred. Whoever the shooter had been, we have no evidence that he or she was ever apprehended. What was in the record allowed counsel to suggest the possibility that the shooter ran into the apartment, thus raising a reasonable doubt. We do not think her work here fell below what might be expected of an ordinary, fallible lawyer.
We find no merit in the defendant's argument that counsel inculpated her own client in her closing argument. She argued, essentially, that it was impossible for the defendant to have been the shooter. Counsel's statements may have been confusing, as the Commonwealth did not present significant evidence of the defendant being the shooter, but they did not inculpate him in any of the charged offenses. We also reject the defendant's related contention that the judge instructed the jury that Machuca was, in fact, the first intruder by saying "the Commonwealth acknowledges that some of the acts committed toward at least some of those offenses were committed only by Mr. Machuca and not by this defendant." This instruction merely explained the Commonwealth's joint venture theory.
Though the defendant raises several topics that counsel should have addressed through cross-examination, particularly during her questioning of S.E. and L.M., counsel's cross-examination strategy of focusing on the factors that would have impaired S.E.'s and L.M.'s views of the perpetrators and affected their recall was not manifestly unreasonable and her performance was not so lacking that it fell below the standard of the ordinary fallible lawyer.
These include descriptions of the intruders' clothes and head-coverings, other potential estimator variables, an unconscious transference theory of misidentification, Brantley's discussion with the defendant before the identifications, and L.M.'s uncertainty. Likewise, counsel's decision not to cross-examine police witnesses regarding best practices in eyewitness identification procedures was not manifestly unreasonable. The decision not to draw attention to officers' use of eye-witness identification procedures that the jury may have found actually safeguarded against misidentification was neither an incompetent nor irrational one in this case.
The defendant's remaining claims of ineffective assistance did not likely deprive him of a substantial ground of defense, even were we to decide that counsel's actions fell below the standard of the ordinary fallible lawyer. A "defense is 'substantial' for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented[,]" or, put another way, there exists a substantial risk of a miscarriage of justice. Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
The defendant argues that counsel's reliance on Machuca's investigator to interview S.E. and L.M. prevented her from uncovering information vital to a potential misidentification defense. The Commonwealth's evidence that the defendant was the second intruder, however, was strong. L.M. and S.E. identified the defendant immediately after the break-in and S.E. testified to statements made by the defendant to the women earlier in the evening that were strikingly similar to statements made by the second intruder. Even had trial counsel interviewed S.E. and L.M. before trial and used the information presented in the defendant's motion for a new trial to cross-examine these women, we have no serious doubt as to whether the verdict would have been the same. See Millien, 474 Mass. at 432.
This information includes L.M.'s schizophrenia diagnosis and vision problems, as well as her greater certainty in the identity of the first male who entered the apartment, than her certainty that the defendant was the second perpetrator. Though L.M. had been diagnosed with schizophrenia years before the break-in and was not on medication at the time, the defendant has not produced any evidence that she was exhibiting such symptoms as hallucinations, delusions, or memory loss that night. As the trial judge noted, the defendant's expert never examined L.M. and could not speak to L.M.'s actual mental state on the night of the break-in. In any event, although we acknowledge that it would have been far better work to discover this impeachment evidence before trial, the evidence of identification in this case was also not based on L.M.'s testimony alone. S.E.'s account of the break-in largely corroborated L.M.'s testimony. Therefore, even if L.M.'s testimony could have been impeached by this evidence, it would not have necessarily undermined S.E.'s identification testimony. Assuming counsel would have discovered this new evidence during a pretrial investigation, we do not think her failure to do so created a substantial risk of a miscarriage of justice.
The same is true regarding counsel's failure to exclude police testimony recounting L.M.'s statement of certainty during her showup identification. Even if counsel could have excluded the statement on hearsay grounds, its admission does not create uncertainty that the defendant's guilt has been fairly adjudicated, especially because both L.M. and S.E. were cross-examined on their drinking, the lighting, and their fear, factors that the jury could have found undermined their testimony as to their certainty. See Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
Counsel's failure to object to an officer's testimony that Brantley radioed that "multiple females . . . told her that the two individuals on the porch were the ones who were doing the shooting" also did not prejudice the defendant. Officer Brantley, S.E., L.M., and S.H. all testified; none indicated that the defendant had been the same person that they heard firing shots in the neighborhood that night. The prosecutor told the jury that "the defendant is not charged with firing a firearm." Instead, she argued that, upon hearing someone firing gunshots, the defendant had motive to drive the women out of the building before they drew yet more police attention to the neighborhood. Despite the potentially misleading testimony, it would have been clear to the jury that the defendant was not alleged to have been the shooter.
The defendant also argues that counsel should have sought to exclude evidence that while police did not find any firearms at P.R.'s apartment, they were unable to search the basement and his small safe; such evidence, he contends, is analogous to inconclusive and potentially misleading DNA evidence. See Commonwealth v. Nesbitt, 452 Mass. 236, 253 (2008). Again, even assuming counsel should have done so, something we do not decide, we conclude that the admission of this evidence did not create a substantial risk of a miscarriage of justice. See Millien, 474 Mass. at 432; Kolenovic, 471 Mass. at 674-675. It was undisputed that, though police searched P.R.'s apartment with his consent, they never found evidence of the firearms used during the break-in. Though they were unable to search P.R.'s small safe, one officer testified that he did not even know if a handgun could have fit inside it. While officers could not locate the key to the basement, P.R. testified that he never possessed such a key because he did not even have access to the basement space in the first place. Based on this, we have no serious doubts as to whether the jury verdict would have been the same had this testimony been excluded.
Finally, the judge's omission of portions of the Gomes instruction, to which counsel did not object, did not create a substantial risk of a miscarriage of justice. See Azar, 435 Mass. at 686-687. By no means was the jury left unaware of the identification issues present in this case. Trial counsel cross-examined S.E. and L.M. about their opportunities to view the men in the apartment and their joint statements to Brantley, cross-examined Detective Longo about the procedure used in the showup identifications, and argued in closing that S.E.'s and L.M.'s joint identification of the defendant undermined the reliability of their statements. The jury also heard, though apparently did not credit, unequivocal testimony from P.R. that the defendant had been by his side during the break-in. The identifications in this case were not of such questionable reliability that, even faced with counsel's attempts to undermine them and the unequivocal testimony of an alibi witness, the jury was willing to doubt them. We do not have serious doubts that they would have done so solely based on the omitted portions of the Gomes instructions. As such, the defendant has not shown that these omissions created a substantial risk of a miscarriage of justice.
We need not reach the question whether the judge erred by failing to give these instructions. Likewise, we need not decide whether the judge erred in giving the general instruction that the jury may rely on "common-sense and general life experience" to decide the facts of the case. This sentence contextualizing the jury's general fact-finding duties, when viewed in the context of the entire instruction, did not create a substantial risk of a miscarriage of justice.
The defendant also claims that he received ineffective assistance at his sentencing hearing. While he was entitled to counsel's assistance in presenting evidence of the mitigating circumstances in his case, he also "has the burden," when claiming that assistance was ineffective, "of showing 'that he would have received a lighter sentence had his counsel conducted [herself] any differently at sentencing.'" Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175 (2018), quoting Commonwealth v. Fanelli, 412 Mass. 497, 503 (1992).
The defendant has not met that burden here. While, as the defendant points out, counsel could have more thoroughly explained the mitigating circumstances present in the defendant's case, she did inform the judge of the defendant's lack of criminal history, his role in his daughter's life, his employment, and his close ties to his family. Counsel also advocated for a lighter sentence than the one suggested by the Commonwealth. The defendant has not shown that counsel's performance fell below the standard of the ordinary fallible lawyer or that the defendant would have received a lighter sentence had counsel presented greater evidence of his mitigating circumstances. Contrast Commonwealth v. Lykus, 406 Mass. 135, 146 (1989) (remand was necessary where counsel did not mention "the defendant's employment history, his charitable activities, or his civic contributions, . . . [and] did not request the imposition of concurrent sentences").
The defendant has not demonstrated that trial counsel's performance preparing for trial, during the trial, or during the sentencing hearing entitles him to a new trial.
3. Newly discovered evidence. The defendant also argues that newly discovered evidence that L.M. suffered from schizophrenia, was forgetful, and needed glasses "casts grave doubt" on the justice of the defendant's convictions and the trial judge erred in denying his revised motion for new trial. As discussed supra, we are not persuaded that this evidence, even if used to cross-examine L.M. at trial, would have created a serious doubt as to the jury's verdict. The judge did not abuse his discretion in determining that a new trial was not required on this basis.
4. Prosecutorial misconduct. Finally, the defendant raises multiple claims of prosecutorial misconduct as grounds for a new trial. First, he argues that the prosecutor failed to correct false testimony from a police officer that witnesses identified the defendant as the person who had been firing gunshots nearby before the break-in. While we agree that the prosecutor should have corrected this potentially misleading testimony, Commonwealth v. Ware, 482 Mass. 717, 721 (2019), as discussed supra, it did not create a substantial risk of a miscarriage of justice.
The defendant also failed to demonstrate that he was prejudiced by the Commonwealth's failure to disclose evidence of a witness who may have seen the shooter in the neighborhood, the results of fingerprint testing of shell casings found in a neighboring yard, and L.M.'s participation in a failed gun identification procedure. See Commonwealth v. Imbert, 479 Mass. 575, 582 (2018). There is no evidence that the witness to whom the defendant refers or the results of the fingerprint testing would have actually allowed him to identify the shooter as a third-party culprit. The defendant has also not shown that any failure to disclose L.M.'s firearms identification procedures prejudiced him, where L.M. testified openly at trial that she "only remember[ed] a gun. I forgot how it looked. . . . I can't describe the kind of gun they had." It was S.E. who testified to seeing a shotgun and a handgun.
Finally, we do not agree with the defendant's contention that the prosecutor misstated the law in closing argument. The prosecutor stated in closing that the defendant's motive, evidence that corroborated testimony of the break-in, and S.E.'s and L.M.'s consistent identifications all "add[ed] up to proof beyond a reasonable doubt." To the extent that this argument could be said to misstate the law and science of eye-witness identification as stated in Gomes, 470 Mass. at 384-385, 387, it did not create a substantial risk of a miscarriage of justice.
Conclusion. We have thoroughly reviewed the record and each of the defendant's many claims of error. Finding none that warrant reversal of his convictions or a new trial, we affirm.
Judgments affirmed.
Orders denying postconviction motions affirmed.
By the Court (Rubin, Blake & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 27, 2020.