Opinion
09-P-235
12-13-2011
COMMONWEALTH v. HECTOR MONTANEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of burglary and of possession of burglarious tools. He appeals his convictions and the denial of his amended motion for a new trial and for postconviction discovery. The motion judge, who was not the trial judge, issued a thoughtful and well-reasoned memorandum denying the defendant's motion. We affirm the judgments and the order denying the posttrial motion. In a separate appeal, the defendant argues that the single justice abused her discretion when she denied his motion to stay the execution of his sentence. On our own motion, we consolidated the two appeals and now dismiss the appeal from the single justice order as moot.
Ineffective assistance of counsel: conflict of interest. The defendant first argues that his trial lawyer had an actual conflict of interest because a possible alibi witness, who was not called to testify at trial, had been a client of the lawyer. The defendant's position is that the lawyer decided not to call the witness because it became apparent that the witness's testimony would incriminate the witness. The motion judge found that 'the defendant has not shown that [trial counsel's] independent professional judgment was impaired by the interests of another client.' The matter on which trial counsel had represented the witness was not related to the defendant's case; the witness was not an adverse witness; and by the time of the defendant's trial, counsel no longer represented the witness. In these circumstances, the defendant has not met his burden to show an actual conflict of interest. See Commonwealth v. Mosher, 455 Mass. 811, 820-821 (2010).
In addition, the defendant did not demonstrate that the decision not to call the witness was influenced by the lawyer's representation of the witness, as opposed to the lawyer's strategic judgment in the defendant's case. At trial, defense counsel called a different alibi witness and the motion judge observed that that alibi witness's testimony would have conflicted with the alibi testimony of the former client. The defendant also stated in an affidavit that his trial counsel advised him that 'it was not a good idea to have [the witness] testify because he had a bad criminal record.' Finally, the defendant does not explain how the testimony of an alibi witness, which he maintains would have incriminated the witness, would nonetheless have exculpated the defendant. In all of the circumstances, we cannot say that the defendant has met either prong of the Saferian standard. See Commonwealth v. Croken, 432 Mass. 266, 272 (2000) (''[W]here a defendant can show nothing more than a potential conflict, the conviction will not be reversed except on a showing of actual prejudice.' Commonwealth v. Fogarty, 419 Mass. 456, 459 [1995]. Actual prejudice is measured against the standard in Commonwealth v. Saferian, 366 Mass. 89, 96 [1974], as in cases involving claims of ineffective assistance of counsel').
Ineffective assistance of counsel: motion to suppress. The defendant next argues that trial counsel was ineffective because he did not file a motion to suppress evidence seized when the defendant was stopped. '[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.' Commonwealth v. Comita, 441 Mass. 86, 91 (2004). The motion judge found that the initial stop was justified '[b]ased on the defendant's temporal and geographic proximity to the scene of the crime, the general match between the defendant's physical appearance and the descriptions provided in the broadcast, the absence of others generally fitting those descriptions, and the defendant's 'strange' reaction to the police cruiser.' On these facts, she held, 'the Commonwealth could have shown that there was an objectively reasonable basis to believe that the defendant had committed the burglary.' We agree. See Commonwealth v. Depina, 456 Mass. 238, 245-247 (2010). In addition, the police officer who stopped the defendant was justified in conducting a patfrisk, based upon his reasonable suspicion that the defendant had just committed a burglary in the nighttime, combined with a report that 'a number of shots were fired during the commission of the crime.' See Commonwealth v. Isaiah I., 450 Mass. 818, 824 (2008). We also agree with the motion judge that the screwdriver and the wire cutters produced by the patfrisk properly were seized as contraband because the officer had probable cause to believe that they were used in the burglary. See Commonwealth v. Cullen, 62 Mass. App. Ct. 390, 402 (2004). From the foregoing, we conclude that trial counsel was not ineffective for failing to file a motion to suppress that had little chance of success.
In addition, the motion judge rightly points out that, even if probable cause to seize the tools was lacking, the tools inevitably would have been discovered after the victim identified the defendant as the man who had been in his house.
The defendant's remaining arguments in his amended motion for a new trial are not persuasive. Although the audiotape of the victim's 911 telephone call to the police was not provided until after trial, the motion judge found that the substance of the telephone call and the victim's initial description of the defendant were placed before the jury; the minor discrepancies between that description and the defendant's appearance when he was stopped were explored thoroughly at trial. It is unlikely that admission of the audiotape itself would have 'create[d] a reasonable doubt which did not otherwise exist.' Commonwealth v. Laguer, 448 Mass. 585, 594 (2007), quoting from United States v. Agurs, 427 U.S. 97, 112 (1976).
The judge found that the defendant did not specifically request the audiotape. His claim that he did appears to be based upon a general request for exculpatory evidence.
Finally, the defendant complains that he was not provided with the results of a comparison between his shoes and photographs of footprints in the snow leading to the victim's house. As the motion judge held, the defendant has not established that the comparison ever was made. ''To prevail on this point [withholding of exculpatory evidence], the defendant must establish that the evidence existed, that it tended to exculpate him, and that the prosecution failed to deliver the information.' Commonwealth v. Schand, 420 Mass. 783, 787 (1995). The evidence adduced . . . makes clear that the defendant has failed to meet this standard.' Commonwealth v. Hudson, 446 Mass. 709, 727 (2006).
Issues raised on direct appeal. We discern no abuse of discretion in the trial judge's limitation of the defendant's cross-examination of the victim on the issue of whether he had a valid gun license. The burden of showing that the judge abused his discretion in so doing falls on the defendant and he has failed meet that burden.
The jury heard evidence from other witnesses that the eighty-nine year old victim had no license for the gun he used at the time of the burglary, that he had more than one unlicensed gun, and that he had not been charged with a crime. Defense counsel argued these points to the jury.
--------
Finally, after a careful review of the record, we are satisfied that the evidence was sufficient to prove beyond a reasonable doubt that the defendant possessed burglarious instruments, to wit a screwdriver and wire cutters, at the time that he was arrested. See Commonwealth v. Jones, 355 Mass. 170, 176- 177 (1969).
Judgments affirmed.
Order denying amended motion for a new trial and postconviction discovery affirmed.
Appeal of order of the single justice dismissed.
By the Court (Vuono, Sikora & Hanlon, JJ.),