Commonwealth v. Gaudette

98 Mass.App.Ct. 1117

157 N.E.3d 114 (Table)

COMMONWEALTH

v.Craig M. GAUDETTE.

19-P-1623

Appeals Court of Massachusetts.

Entered: November 5, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Craig M. Gaudette, appeals from his conviction, after a District Court jury trial, of larceny of a motor vehicle, G. L. c. 266, § 28 (a ), and from an order denying his motion for a new trial. Concluding that the defendant has not shown that a motion to suppress would likely have been successful and that the defendant was not entitled to a humane practice instruction, we affirm.

1. Denial of the motion for a new trial. a. Standard of review. "In reviewing the denial of a motion for new trial, we ‘examine the motion judge's conclusions only to determine whether there has been a significant error of law or other abuses of discretion.’ " Commonwealth v. Ferreira, 481 Mass. 641, 648 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "In determining whether a ‘substantial issue’ meriting an evidentiary hearing ... has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's showing." Commonwealth v. Smith, 90 Mass. App. Ct. 261, 264 (2016), quoting Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981).

When the basis for a motion for a new trial is a claim of ineffective assistance of counsel, "the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "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). Under ordinary circumstances, "[w]hen a defendant claims ineffective assistance of counsel for failure to move to suppress, he must ‘demonstrate a likelihood that the motion to suppress would have been successful.’ " Commonwealth v. Jules, 464 Mass. 478, 489 (2013), quoting Commonwealth v. Walker, 460 Mass. 590, 599 (2011).

b. Entry into the hotel room. "The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that police who enter an individual's residence to execute an arrest warrant ‘have a reasonable belief that the location to be searched is the arrestee's residence, and a reasonable belief that the arrestee is in his residence at the time the arrest warrant is executed.’ " Commonwealth v. Gentile, 466 Mass. 817, 817-818 (2014), quoting Commonwealth v. Silva, 440 Mass. 772, 778 (2004). At trial, the police sergeant testified that the defendant's mother exited the hotel room to talk to him and then reentered the hotel room to get the officer an identification card. The sergeant did not testify to entering the room before the mother stated that her son Craig was in the room.² At trial, the mother testified that she stepped outside of the hotel room and then told the officer that her son Craig was in the room.

The mother's affidavit, submitted with the defendant's motion for a new trial, states that the police "followed [her] into the room," but does not specify whether that occurred before or after she stated that the defendant was inside the room. In any event, the motion judge was entitled to discredit the affidavit of the defendant's family member. See Commonwealth v. Furr, 454 Mass. 101, 112 (2009) (motion judge may disbelieve affidavit of defendant's brother); Commonwealth v. Toney, 385 Mass. 575, 579-580 (1982) (motion judge may disbelieve affidavits of defendant's fiancée and brother-in-law); Commonwealth v. Savage, 51 Mass. App. Ct. 500, 506 (2001) (motion judge may disbelieve affidavit of defendant's wife); Commonwealth v. Hawkins, 26 Mass. App. Ct. 910, 911 (1988) (motion judge may disbelieve affidavit of defendant's mother). "Because the defendant has not demonstrated a likelihood that a motion to suppress this evidence would have been successful, we conclude that the judge did not err in denying his motion for a new trial." Jules, 464 Mass. at 491.

c. Inculpatory statement. The same reasoning applies to counsel's failure to move to suppress the defendant's statement to the police. "The procedural safeguards of Miranda are required not where a suspect is merely in police custody, but rather where a suspect is subjected to custodial interrogation." Commonwealth v. Braley, 449 Mass. 316, 323 (2007), quoting Commonwealth v. Torres, 424 Mass. 792, 796 (1997). "Miranda does not protect volunteered statements." Commonwealth v. Gittens, 55 Mass. App. Ct. 148, 150 (2002).

The sergeant and another officer both testified that the defendant maintained that his name was Alex and that the officers determined that he was Craig by looking up his driver's license. Then, immediately upon being arrested, the defendant stated "that his mother knew nothing about the car" or that she "didn't know the car was stolen." By contrast, the mother testified that, prior to the arrest, the officers threatened to arrest the mother if the defendant did not identify himself, whereupon he admitted that he was Craig. She further testified that he did not make any statement about a stolen vehicle. The defendant's affidavit (which also denies making an incriminating statement) stated that the police threatened to arrest the defendant's mother if he did not identify himself, but then that the police had to look up his driver's license to identify him.

Under the officers' version of events, no motion to suppress was viable, as the defendant's statement was spontaneous and volunteered. See Braley, 449 Mass. at 325 ("Volunteered statements of a defendant are admissible even if Miranda errors are otherwise present"). Even assuming that the defendant's version of events would support suppression, the motion judge heard the mother's testimony at trial and could determine that it was not credible. See Commonwealth v. Alebord, 68 Mass. App. Ct. 1, 11 (2006), quoting Commonwealth v. Croken, 432 Mass. 266, 271 (2000) ("motion judge, who had been the trial judge, ‘was entitled to use [his] knowledge and evaluation of the evidence at trial’ in deciding the merits of the motion"). Accord Commonwealth v. Evelyn, 485 Mass. 691, 696 (2020) ("the motion judge, who heard and saw the witnesses, determines the weight of credibility of the evidence"). Similarly, the motion judge was entitled to discredit the defendant's self-serving affidavit, especially where it was inconsistent with the trial testimony. See Commonwealth v. Cadet, 473 Mass. 173, 183 (2015). As such, the motion judge could reasonably conclude that a motion to suppress the statements would have little chance of success. "It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success." Commonwealth v. Hanson, 79 Mass. App. Ct. 233, 238 (2011), quoting Commonwealth v. Conceicao, 388 Mass 255, 264 (1983).³

2. Humane practice instruction. "[A] judge does not have an obligation to instruct on humane practice unless voluntariness actually ‘is made a live issue at trial.’ " Commonwealth v. Amaral, 482 Mass. 496, 506 (2019), quoting Commonwealth v. Alicea, 376 Mass. 506, 523 (1978). Here, no part of the defendant's case involved a suggestion that the defendant's statements were involuntary. Instead, the defendant argued that he made no statement regarding a stolen vehicle and the officers' testimony regarding his statements "doesn't make sense." The defendant, indeed, embraced his mother's testimony that he said, "My mother knows nothing." The defendant argued that this version of the statement was credible, and that the defendant was referring only to his status as a fugitive. See Commonwealth v. Carter, 475 Mass. 512, 523 (2016), quoting Commonwealth v. Benoit, 410 Mass. 506, 513 (1991) ("It ‘would be anomalous to require the judge to inquire into the issue "where it might be contrary to the theory and strategy of the defendant" ’ "). "As the defendant did not make the voluntariness of his statement to police a...