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 plaintiff, Roland Fils, appeals from the dismissal of his complaint seeking damages pursuant to the Massachusetts Erroneous Convictions Law, G. L. c. 258D, for failure to state a claim. We affirm.
Background. In July, 2008, a jury found Fils and his codefendant, Sharon Haywood, guilty of trafficking in cocaine, and of a drug violation within a school zone. Fils was sentenced to the minimum mandatory term of ten years in State prison on the trafficking conviction, followed by two years in the house of correction on the school zone violation. Fils appealed; while his appeal was pending, he filed a motion for a new trial on the ground of ineffective assistance of counsel. Fils alleged, among other claims, that trial counsel failed to investigate and prepare his defense and did not permit the defendant to testify at trial. The motion was denied by the trial judge following an evidentiary hearing. As to each of Fils's claims, the judge concluded that Fils had not met his burden to establish both prongs of the test articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The evidence admitted at the criminal trial is well summarized and set forth by the trial judge in his memorandum of decision and order denying Fils's motion for a new trial and need not be fully repeated here. Essentially, the Commonwealth's case against Fils was based on a theory of constructive possession of cocaine that was found during the execution of a search warrant at Haywood's apartment. The jury could have found that Fils often stayed with Haywood, who was his girl friend. Some of the cocaine was found in a locked box which also contained two casino cards in the name of Roland Fils. Other personal items, including a passport, belonging to the defendant were found in the apartment. The primary witness against Fils was Michelange Leger, a cousin of Fils who also was living in Haywood's apartment at the time the search warrant was executed. Like Fils, Leger was charged with trafficking in cocaine. He gave a statement implicating Fils and Haywood to the police, but recanted that statement at trial and testified that he never saw cocaine at Haywood's residence.
Fils's appeal from the order denying his new trial motion was consolidated with his direct appeal, which raised numerous claims of error. Ultimately, the judgments were reversed on the basis that the admission in evidence of drug analysis certificates without the in-court testimony of the chemist who conducted the tests violated his Sixth Amendment right to confrontation. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Commonwealth v. Vasquez, 456 Mass. 350 (2010). However, because the evidence was sufficient to withstand Fils's motions for required findings of not guilty, the court held that Fils could be retried. See Commonwealth v. Haywood, 77 Mass. App. Ct. 1112 (2010). In the subsequent retrial, at which Fils testified, Fils was acquitted of all charges.
The Commonwealth conceded that Fils and Haywood were entitled to a new trial on this ground.
On July 13, 2012, Fils brought this action, contending that he had been wrongfully convicted of a felony in 2008 and unlawfully incarcerated for more than five years. The Commonwealth filed a motion to dismiss for failure to state a claim under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). It argued that the grounds for reversal of the judgments did not tend to establish Fils's innocence, and therefore he was ineligible to bring a suit for damages. A different judge (not the trial judge) of the Superior Court allowed the Commonwealth's motion, concluding that Fils would not be able to prove that he is within the class of persons eligible for relief.
Discussion. In determining whether Fils falls within the class of persons eligible to seek compensation under the statute, we must decide whether the judgments were reversed "on grounds which tend to establish [his] innocence." G. L. c. 258D, § 1(B)(ii), inserted by St. 2004, c. 444, § 1. In Guzman v. Commonwealth, 458 Mass. 354, 358 (2010), the Supreme Judicial Court explained the meaning of that phrase: "it is possible to envision many potential claimants whose convictions are reversed because of procedural or evidentiary errors or structural deficiencies at their trials that could well be 'consistent' with innocence without any tendency to establish it." The court then provided a list of examples of such cases, including, among others, the erroneous admission of a ballistics certificate in violation of a claimant's Sixth Amendment right to confrontation. Id. at 358 n.6.
In this case, the judgments were overturned due to a so-called Melendez-Diaz error. Such an error is analogous to the example of the erroneous introduction of a ballistics certificate specifically mentioned in Guzman as a ground that does not tend to establish innocence. Consequently, we conclude, as did the judge, that the reversal of the judgments was not based on a ground that tended to establish his innocence and, as a result, he is not eligible to sue.
The defendant next argues that in determining his eligibility under the statute, it is appropriate to consider all of the grounds he advanced on appeal as opposed to the actual ground upon which a new trial was granted. As noted, Fils raised a number of issues and also appealed from the denial of his new trial motion in which he alleged that he had received ineffective assistance of counsel. According to Fils, had we reached that particular appellate argument, we would have concluded that trial counsel had provided ineffective assistance and reversed the judgments on that ground. Fils would then be in a position to meet the threshold eligibility requirement. Put another way, Fils's argument is that given trial counsel's alleged missteps, including preventing him from testifying, the jury were "forestalled from making a fully informed decision as to [his] guilt or innocence." Silva-Santiago v. Commonwealth, 85 Mass. App. Ct. 906, 909 (2014), quoting from Drumgold v. Commonwealth, 458 Mass. 367, 378 (2010). We disagree.
Fils testified at the hearing on his motion for a new trial and claimed that he was not living at Haywood's home at the time the search warrant was executed.
As an initial matter, although all the issues raised on appeal (including the denial of Fils's new trial motion) were not specifically addressed by the panel in the order reversing the judgments, we do not assume that these issues were not reached. The appeal was disposed of in an unpublished memorandum and order pursuant to our rule 1:28. Summary decisions issued pursuant to rule 1:28 are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). Here, the panel expressly noted that it had conducted an "independent examination of the record." In these circumstances, we decline to assume that Fils's remaining issues were not considered. In any event, even if we were to accept Fils's assertion that the panel did not reach his other appellate arguments, there is nothing in the plain language of the statute or the case law interpreting the statute that suggests arguments raised but not relied on by the court in granting relief can render an individual eligible to sue.
See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977) ("[A] salient principle of statutory construction . . . [is] that the statutory language itself is the principle source of insight into the legislative purpose"); Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, 456 Mass. 463, 468 (2010) (court will not expand or limit statute's meaning unless plain reading of statute requires it); Law v. Griffith, 457 Mass. 349, 353 (2010) (statute whose language is clear is interpreted according to its ordinary meaning).
In addition, to the extent that Fils focuses on his claim that trial counsel was ineffective and in particular on the specific claim that counsel did not allow Fils to testify at trial, we note that this argument was addressed and expressly rejected by the trial judge following an evidentiary hearing at which Fils and trial counsel testified. We have reviewed carefully the transcript of the motion hearing and the judge's analysis and conclusion as to this issue, and discern no error or abuse of discretion. We are, therefore, not persuaded that Fils was precluded from establishing that he was entitled to reversal of the judgments on a ground tending to show his innocence. As such, G. L. c. 258D relief is not available and Fils's complaint was properly dismissed.
The panelists are listed in order of seniority. --------
Clerk Entered: January 27, 2016.