Commonwealth v. Barron

100 Mass.App.Ct. 1104

173 N.E.3d 54 (Table)

COMMONWEALTH

v.Lori Ann BARRON.

21-P-44

Appeals Court of Massachusetts.

Entered: August 9, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted on multiple charges stemming from the operation of her massage parlor as a business for prostitution. On appeal, the defendant claims error in the denial of her motion to suppress evidence seized from her vehicle during a warrantless search, and in the denial of her motion for new trial based on ineffective assistance of counsel. We affirm.

Motion to suppress. "In reviewing the grant or denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error and accord ‘substantial deference’ to the judge's ultimate findings" (citations omitted). Commonwealth v. Carr, 458 Mass. 295, 298 (2010). "The ultimate legal conclusions to be drawn from the subsidiary findings of fact, however, are matters for review by this court." Commonwealth v. Santos, 465 Mass. 689, 694 (2013), quoting Commonwealth v. Robinson, 399 Mass. 209, 215 (1987).

There is no merit to the defendant's contention that her consent to the search was not voluntary. Where the Commonwealth relies on consent to justify the lawfulness of a warrantless search, it must prove that the consent was "freely and voluntarily" given. Commonwealth v. Burgess, 434 Mass. 307, 310 (2001), quoting Commonwealth v. Krisco Corp., 421 Mass. 37, 46 (1995). Accordingly, the Commonwealth bears the burden of showing "consent unfettered by coercion, express or implied, and also something more than mere acquiescence to a claim of lawful authority" (citation and quotation omitted). Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). "The voluntariness of an individual's consent to a warrantless entry is an issue of fact, and must be examined in light of the totality of the circumstances of the case." Commonwealth v. Rogers, 444 Mass. 234, 238 (2005).

Contrary to the defendant's suggestion, the motion judge's findings demonstrate that the defendant was not coerced into providing consent.² The defendant was cooperative with officers when they arrived at the house and handed over items at the officers’ request before speaking to her attorney. See Commonwealth v. Collins, 11 Mass. App. Ct. 583, 588 (1981) (finding voluntariness of consent based on the defendant's "cooperative conduct and by the absence of trickery or threats on the part of the trooper"). The officers were polite with the defendant and not overbearing, even permitting the defendant to walk freely throughout her home for some time. Additionally, after the defendant was transported to the station for booking, she executed a standard consent form authorizing a search of her house and vehicle after she had an opportunity to read the form and ask the officer questions. The officer explained that she was under no obligation to grant consent and could revoke it at any time. See Commonwealth v. Harmond, 376 Mass. 557, 561 (1978) ("The neglect or failure of the police to explain the right of the defendant to refuse to consent to a search is a factor suggesting coercion, but it is not conclusive .... This is true even when a suspect is in custody when asked for permission to search").

Though the defendant makes much of the advice she received from her potentially conflicted attorney, there is no evidence to suggest that the attorney's advice otherwise coerced the defendant into consenting to the search.³ Likewise, there is no evidence that the defendant consented to the search only because the officers stated that they would obtain a search warrant if the defendant refused. See Harmond, 376 Mass. at 561 ("Similarly, it is inconclusive on the question of voluntariness that the police announced their intention to seek a search warrant if consent were not forthcoming"). Based on the "totality of the circumstances," the judge did not err in denying the motion to suppress. Burgess, 434 Mass. at 311.

Motion for new trial. "We review the denial of a motion for a new trial for an abuse of discretion." Commonwealth v. Sorenson, 98 Mass. App. Ct. 789, 791 (2020). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020), quoting Commonwealth v. Martin, 467 Mass. 291, 316 (2014). In analyzing the defendant's claim for ineffective assistance of counsel, we determine "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and, if so, "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Sorenson, supra, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). However, "[a] strategic or tactical decision...