Opinion
10-P-1321
05-10-2012
COMMONWEALTH v. EBER RIVERA.
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
After a jury trial, the defendant was convicted of armed assault with intent to murder, assault and battery by means of a dangerous weapon causing serious bodily injury, and assault and battery on a public employee. On appeal, the defendant claims that it was error to deny his motion to suppress, that the evidence was insufficient, and that he received ineffective assistance of counsel. We affirm.
1. Motion to suppress. The defendant claims that it was error for the motion judge to deny his motion to suppress statements and physical evidence because the police lacked reasonable suspicion to justify his initial detention. We disagree. As the motion judge found, the defendant was seen minutes after the reported stabbing running away from the scene of the crime, at 2:00 A. M., in a high crime area, and continued to flee after the police told him to stop. These facts justified the stop. See Commonwealth v. Sykes, 449 Mass. 308, 314 (2007); Commonwealth v. Horton, 63 Mass. App. Ct. 571, 575-576 (2005). 2. Insufficient evidence. The defendant claims that there was insufficient evidence to prove that he had the intent to murder the victim. We disagree. In the light most favorable to the Commonwealth, the evidence demonstrated that something 'triggered' the defendant, and a fight with the victim ensued. The defendant was armed with a knife and he stabbed the unarmed victim three times, including a stab wound to the chest next to the victim's heart. The victim's wounds would have been fatal if they had not been promptly treated. This evidence, and the reasonable inferences drawn therefrom, were sufficient to establish the intent element of the crime.
3. Ineffective assistance. The defendant makes a variety of meritless claims that his attorney provided him ineffective assistance. First, counsel's decision to not pursue third-party culprit evidence that she mentioned in her opening statement was a matter of tactics based on how the Commonwealth's evidence unfolded and the lack of corroboration for the third party's involvement. Second, it was not ineffective assistance for counsel to not move to suppress the defendant's initial statements to the police where the questions did not constitute interrogation for the purposes of Miranda warnings. Third, it was not ineffective assistance for counsel to not object to an officer's testimony regarding a witness's prior identification where that testimony was not hearsay under Commonwealth v. Cong Duc Le, 444 Mass. 431, 440-441 (2005); Mass. G. Evid. § 801(d)(1)(C) (2011). Finally, counsel did not provide ineffective assistance by not objecting to the testimony regarding the defendant's conduct and his statements at the police station. This evidence was admissible to show consciousness of guilt. Nor was counsel ineffective for failing to object to the description of the defendant's behavior immediately prior to the crime. This testimony was a comment on the witness's observation of a change in the defendant's demeanor. In neither instance was the testimony admitted as character or propensity evidence. For these reasons, and for the reasons included in the Commonwealth's brief at 13-39, the defendant was not deprived of the effective assistance of counsel.
The judge did not abuse her discretion in denying the motion for new trial without holding an evidentiary hearing. See Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).
Judgments affirmed.
Orders denying motion for new trial and for reconsideration affirmed.
By the Court (Kantrowitz, Kafker & Meade, JJ.),