Commonwealth v. Jones

84 Mass.App.Ct. 1110

993 N.E.2d 752

COMMONWEALTH

v.Timothy E. JONES.

No. 10–P–13.

Appeals Court of Massachusetts.

September 13, 2013.

OPINION TEXT STARTS HEREBy the Court (TRAINOR, AGNES & SULLIVAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his convictions of two counts of rape aggravated by kidnapping, G.L. c. 265, § 22( a ); kidnapping aggravated by rape, G.L. c. 265, § 26, third par.; assault by means of a dangerous weapon, G.L. c. 265, § 15B( b ); and threats to commit murder, G.L. c. 275, § 2.¹ The defendant maintains that his trial counsel was ineffective in that he (1) failed to file a motion to suppress, (2) did not investigate DNA evidence, (3) did not file a motion in limine to exclude a knife and roll of packing tape, (4) did not sufficiently impeach Susan Smith ² at trial, (5) did not object to improper first complaint testimony, (6) impermissibly determined that the defendant would testify, (7) failed to move for lesser included offense instructions, (8) failed to move to dismiss duplicative convictions, and (9) failed to challenge the validity of the kidnapping statute. The defendant also argues that the judge erroneously denied his postconviction motions for a required finding and release from unlawful restraint. We affirm. Ineffective assistance. We review a decision on a motion for a new trial claiming ineffective assistance of counsel for abuse of discretion or errors of law, see Commonwealth v. Alvarez, 433 Mass. 93, 100–101 (2000), under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013).

1. Suppression. To succeed on his claim of ineffective assistance, “the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004). Counsel is not ineffective when he or she declines to file a motion to suppress “with a minimal chance of success.” Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).

a. Validity of warrant. The defendant contends counsel was ineffective in failing to file a motion to suppress because (1) the affidavit in support of the search warrant established an inadequate nexus between the defendant and 205 Mitchell's Way, the location identified as the defendant's residence and the site of the assaults on Smith, and (2) certain items specified in the affidavit were not found at the residence. The affidavit stated that Smith, the defendant's estranged wife, identified 205 Mitchell's Way as the defendant's residence, that she had visited it previously, that it was the place where she was assaulted, and that she had showed the location to the police detective during his preliminary investigation.³ With respect to the items sought, the affidavit specified that the defendant used a six to eight inch knife, that Smith was raped repeatedly at the defendant's residence, that he used packing tape to secure her arms and legs, that he forced her to drink brandy, that she vomited and urinated in a bucket, and that she heard an electrical razor and that her pubic hair had been shaved off.

The defendant has not met his burden of showing that a motion to suppress would have been successful, given that the specific facts contained in the affidavit and the reasonable inferences drawn therefrom established probable cause that the defendant resided at that address and that the residence would contain the evidence sought. See Commonwealth v. Tapia, 463 Mass. 721, 726–730 (2013). See also Commonwealth v. Conceicao, 388 Mass. at 264 (counsel not ineffective for failing to file motion to suppress that would be unsuccessful).⁴

b. Warrant. The defendant contends that credible evidence suggests that the police officers did not have the warrant in hand during the search, and counsel was ineffective for failing to file a motion to suppress on that basis. The motion judge credited Detective Laber's testimony at the hearing on the motion for new trial that he showed the warrant to the defendant and the defendant's landlady at the time of the search, and Detective Guiney's testimony that he witnessed this. The judge specifically found not credible and without factual support the defendant's claim that the warrant was not presented. We defer to those determinations. See Commonwealth v. Perkins, 450 Mass. 834, 845 (2008).

c. Police agent. The defendant contends that the landlady provided the knife and roll of tape to the police not as a private citizen, but as an agent of the police in response to police pressure during the search and further solicitation by police after the search. The factual basis for this claim is lacking.

The landlady found the knife in a drawer in the kitchen, an area over which she had ownership and control.⁵ Cf. Commonwealth v.. Ploude, 44 Mass.App.Ct. 137, 140–141 (1998) (landlord who had access to entire building had authority to consent to search of tenant area). Moreover, “the exclusionary rule does not exclude evidence obtained by way of purely private conduct.” Commonwealth v. Brandwein, 435 Mass. 623, 632 (2002). The evidence at trial was that the police asked the landlady (on more than one occasion) about a white-handled knife, and that she called the police and turned the knife and tape over to them a few days after the search. “[I]t is no part of the policy underlying the Fourth and Fourteenth Amendments [to the United States Constitution] to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971).⁶

2. DNA Evidence. The defendant contends that counsel was ineffective for failing to investigate and challenge DNA evidence admitted at trial relating to the packing tape. See Commonwealth v. Greineder, 458 Mass. 207, 248 (2010), vacated on other grounds, Greineder v. Massachusetts, 133 S.Ct. 55 (2012). The defendant refused the delay attendant to such an investigation, urging trial counsel to try the case as quickly as possible. At trial, the defense strategy was that consensual sexual contact occurred, and that both the defendant's and Smith's DNA were on the packing tape because they had packed and unpacked moving boxes using the tape. Had the jury credited the defendant's testimony, he would have been acquitted. For those reasons, the motion judge's finding that trial counsel's strategy was not manifestly unreasonable is fully supported by the record. See Commonwealth v. Bol Choeurn, 446 Mass. 510, 521 (2006) (unsuccessful trial strategy is not “manifestly unreasonable”). Moreover, the defendant has not established prejudice, as he did not introduce any evidence in connection with the motion for new trial suggesting that the laboratory failed to follow proper procedures or that the DNA belonged to someone else.

3. Motion in limine. The defendant maintains that counsel was ineffective for failing to move in limine to exclude the knife and a roll of packing tape contained in a CVS bag, which the landlady also provided to the police. He argues that counsel should have moved to exclude the knife because the knife admitted at trial was larger than the knife Smith previously described to police, and that the roll of packing tape was irrelevant because it was unused.

Assuming, without deciding, that the defendant is correct that the failure to move to exclude the knife was not the result of a reasonable tactical decision, ⁷ the motion would not have been successful, and hence no error occurred. Smith testified that the defendant used a knife when he approached her in the parking lot, and that he brought the knife into the room with her at 205 Mitchell's Way. The affidavit shows that Smith told police that the defendant had used a six to eight inch white-handled knife, though she did not specify whether this was the full length of the knife or only the blade length. At trial, Smith testified that the knife admitted at trial (which the defendant describes as a fifteen inch butcher knife, measuring both blade and handle) “resembled” the one he used to abduct her and the one that was in the room with her. As the motion judge found, the knife was relevant and adequately described. Because Smith did not specify whether she was referring to full length or blade length in her initial report to police, the fact that the white-handled knife that was admitted was long is not necessarily inconsistent. Further, assuming there was an inconsistency, that inconsistency went to weight and not admissibility. A motion to exclude or suppress the knife would have been futile, and counsel was not ineffective. Commonwealth v. Conceicao, 388 Mass. at 264.

The packing tape, although unused, was relevant to the Commonwealth's theory that the defendant planned to abduct and confine Smith, and had purchased and/or brought the tape as part of the planned abduction. Given its relevance, any motion to exclude it would have been futile and did not constitute ineffective assistance. See ibid.⁸

4. Impeachment of witness. Defense counsel made a concerted effort to impeach Smith by questioning her about inconsistencies in her testimony.⁹ The theme of the cross-examination was the defense of consent, coupled with inconsistencies in her testimony. The cross-examination focused on her previous relationship with the defendant, her failure to call for help when she had the means and opportunity, and the timing of her report to the police. The defendant contends that counsel was ineffective for failing to cross-examine Smith on certain other alleged inconsistencies in her testimony and other previous statements which he claims to be inconsistent.¹⁰

We apply a “stringent standard of review to claims of ineffective assistance because of failure to impeach a witness.” Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). Here defense counsel aggressively questioned many aspects of Smith's testimony central to his defense. That he chose not...