Commonwealth v. Chamberlin

180 N.E.3d 1021 (Table)

COMMONWEALTH

v.Peter CHAMBERLIN.

20-P-1144

Appeals Court of Massachusetts.

Entered: January 13, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury found the defendant guilty of armed robbery while masked, kidnapping with intent to extort, and armed assault with intent to murder in connection with a 2007 robbery where the victim was bound, threatened, and shot. The defendant's convictions were affirmed on direct appeal. See Commonwealth v. Chamberlin, 473 Mass. 653 (2016).

The defendant now appeals from the orders denying his motion to vacate his convictions and his related motion for postconviction fees and costs. He argues that his convictions must be set aside because he was denied two peremptory challenges during jury selection and his prior appellate counsel was ineffective for failing to raise that issue on direct appeal. He also argues that his conviction of armed assault with intent to murder must be vacated for the additional reasons that newly discovered evidence suggests that the defendant was not the shooter and that his trial counsel was ineffective for failing to move to exclude the victim's identification of the defendant as the shooter on the basis that the identification was unreliable. We affirm.

Background. 1. The robbery.² In September 2007, the victim and an employee of his real estate business fielded telephone calls from a potential customer who identified himself as "Marco." Marco and the victim arranged to meet after hours on September 24 at the victim's office to review real estate listings. That evening, when the victim answered a knock on his office door, three men entered the office and one held a handgun to the victim's forehead. All three men wore masks that covered their noses and mouths. The man with the handgun said, among other things, "Give me the fucking money. You're going to die because of the fucking money." The victim recognized that assailant's voice as belonging to Marco. During the encounter, the victim began to pray and Marco stated that the Christian prayers did not matter to him because he was Jewish.

The men bound the victim's hands with wire ties and Marco remained in the basement with the victim while the other men searched the office. Right before the assailants left, Marco shot the victim in the back of the head. Marco then instructed one of the other men to "plug [him] some more," and the other man responded, "Let's go." After the men left, the victim was able to telephone 911 and was taken to the hospital for treatment.

During the ensuing investigation, the police identified the phone number used by Marco as belonging to the defendant. The police also obtained a recording of a voicemail message left by Marco from the victim's phone. Two witnesses who each knew the defendant for approximately twenty years identified the voice on the voicemail message as belonging to the defendant.³ At trial, one of those witnesses also testified that in the middle of September 2007, the defendant told her that he was planning a robbery with other people, and that near the end of September 2007, he asked her to pick him up around 3:00 A.M. because he was in "some kind of trouble." The other witness testified that four days after the incident, the defendant told her that he had participated in a robbery, that one of the other robbers shot the victim, and that he planned to turn himself into police.

A search of the defendant's residence in Roslindale was conducted pursuant to a warrant. That search yielded wire ties, a real estate listing sheet for properties handled by the victim's agency, and a computer. A forensic analysis of the computer revealed that a search was conducted for directions from Roslindale to the victim's office three days before the robbery, an e-mail address associated with the name "Mark" or "Marko" was accessed from that computer, and a newspaper article about the robbery was retrieved after the fact.

2. Victim's identification of defendant. Two days after the robbery, police showed the victim a photographic array. He indicated that a photograph of the defendant taken a few years prior resembled Marco but noted that his face appeared heavier in the photograph; the victim also put aside a photograph of another individual. The following day, police showed the victim a second photographic array that included a more recent photograph of the defendant. The victim identified the defendant as his assailant from the array. During trial, the victim made an in-court identification of the defendant as the man whom he knew as Marco.

3. Jury selection. At the outset of jury selection, the trial judge expressed an intent to empanel fourteen jurors and noted that each side would receive fourteen peremptory challenges. The defense counsel exhausted those challenges. After the judge excused a previously selected juror, the judge afforded defense counsel an additional challenge. The judge then explained, "I'm going to continue to impanel until I can at least get fourteen. I may go to fifteen. I may go to sixteen."

Voir dire continued and the defense counsel used her last peremptory challenge. After selecting fourteen qualified and indifferent jurors, the judge stated, "I am going to continue because I do not know if there will be new issues raised," and noted his concern about a previously selected juror who had a conflict on Thursday.

After the prosecutor indicated that he did not challenge a prospective fifteenth juror, juror no. 92, the judge explained, "We're going to continue. I want to get to sixteen, because I'm not going to be surprised if someone has a new problem." The judge then conducted individual voir dire of juror no. 93, and the prosecutor did not challenge that juror. The following exchange then occurred:

DEFENSE COUNSEL : "Judge, I think if we're picking sixteen, I would submit that I should have two additional challenges."

THE JUDGE : "I'm not going to sixteen unless I have problems. This is the way I'm going to proceed. I'm going to see if the first fourteen contain anyone else who has a problem that we haven't been alerted to. As to the one juror who has a Thursday problem, it seems to me that it would be prudent to take fifteen and put that juror in the place of the juror with the Thursday problem ...."

The judge then instructed the court officer to seat juror no. 92 and juror no. 93 in the "two seats apart from the jury box." After further discussion with the juror who had the scheduling conflict, the judge excused her and replaced her with juror no. 92. Defense counsel did not object. The judge then indicated, "The juror in 16 [i.e., juror no. 93], unless otherwise decided, will be free to go as soon as I conclude the proceedings today."

After the prosecutor raised an issue with another prospective juror, the judge decided to conduct an inquiry. The judge explained, "We're going to bring [the prospective juror] over. If there's any -- [defense counsel], I alert you to this. If there's any uncertainty in my mind, I'm going to excuse him." Defense counsel did not object. After a short inquiry, the judge indicated that he was going to replace that juror with juror no. 93. Again, defense counsel did not object or raise a concern about juror nos. 92 or 93. The panel of fourteen jurors, including juror no. 92 and juror no. 93, were sworn in the following day. Both juror no. 92 and juror no. 93 deliberated.

Discussion. A judge may allow a motion to vacate conviction pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), only "if it appears that justice may not have been done" (citation omitted). Commonwealth v. Masonoff, 70 Mass. App. Ct. 162, 165-166 (2007). "The judge may rule on [such] a motion ... without an evidentiary hearing where the motion and supporting materials do not raise a ‘substantial issue.’ " Commonwealth v. Denis, 442 Mass. 617, 628 (2004), quoting Mass. R. Crim. P. 30 (c) (3). Because the motion judge here did not preside over trial or conduct an evidentiary hearing, our review is de novo. See Commonwealth v. Mazza, 484 Mass. 539, 547 (2020).

1. Peremptory challenges. The defendant first argues that his prior appellate counsel rendered ineffective assistance by failing to raise on direct appeal the issue whether the trial judge improperly denied the defendant two peremptory challenges to which he was entitled during jury selection.

To establish ineffective assistance of counsel, a defendant must show first that the attorney's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer" and that counsel's shortcoming "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "When assessing whether appellate counsel's behavior fell below the standard of an ordinary, fallible lawyer, we focus on whether appellate counsel ‘failed to raise a significant and obvious issue ... which ... may have resulted in a reversal of the conviction, or an order for a new trial.’ " Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 282 (2014), quoting Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 232 (1993).

Where, as here, a defendant is charged with a crime punishable by imprisonment for life, he is entitled to twelve peremptory challenges. See Mass. R. Crim. P. 20 (c) (1), 378 Mass. 889 (1979). Moreover, in a protracted trial, a judge may choose to empanel up to sixteen jurors, only twelve of whom will ultimately deliberate. See Mass. R. Crim. P. 20 (d) (1) & (2). In such instances, the defendant is "entitled to one additional peremptory challenge for each additional juror." Mass. R. Crim. P. 20 (c) (1).

" ‘[P]eremptory challenges are a creature of statute,’ and, thus, a defendant is deprived of his constitutional right to an impartial jury ‘only if [he] does not receive that which state law provides.’ " Commonwealth v. Crayton, 93 Mass. App. Ct. 251, 255 (2018), quoting Ross v. Oklahoma, 487...