Commonwealth v. Meyer

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant, Stephen Lincoln Meyer, of two counts of assault and battery by means of a dangerous weapon under the theory of joint venture. In this consolidated appeal from his convictions and from the denial of his new trial motion, the defendant argues that his counsel provided ineffective assistance in failing to interview and call his codefendant, Peter Harris, as a witness.^[1] He also claims that trial counsel was ineffective in failing to file a motion to dismiss for violations of his right to a speedy trial and that the prosecutor made improper statements in his closing argument. We are not persuaded by counsel's claim under Mass. R. Crim P. 36, 378 Mass. 909 (1979), and find no substantial risk of a

miscarriage of justice based on the prosecutor's closing statement. However, we conclude that the defendant proffered a substantial issue of fact entitling him to an evidentiary hearing on the issue of failing to interview and potentially call Harris as a witness. Therefore, we vacate the order denying the motion for a new trial and remand for an evidentiary hearing.

Background.

On June 5, 2015, the defendant and Harris were homeless and living under a bridge over Route 2, near the Alewife MBTA Station and Thorndike Field in Arlington. That same evening, a little after 10 PM. two friends, Andrew O'Halloran and Nicholas Pappas, drove to Thorndike Field and parked in the lot. O'Halloran was in the driver's seat and Pappas was in the passenger seat.

The parking lot at Thorndike Field was dark but at some point, Pappas looked up from his cell phone and saw two men walking toward them from the direction of Alewife Station. He made note that one of the men was wearing a darker colored sweatshirt. Pappas, not particularly concerned, turned back to his phone. The next time he looked up, he saw a man (later identified as Harris) about five to ten feet from the passenger side of the car. Harris was wearing a LED headlight and he was acting as if he was a police officer. Harris opened the passenger door and told Pappas and O'Halloran he was going to

search the vehicle because he heard a woman screaming. Some conversation occurred between Pappas and Harris, but ultimately O'Halloran popped open the trunk to permit a search.

When Harris went to the back of the vehicle, Pappas locked the doors of the car and instructed O'Halloran to start the engine. As soon as O'Halloran started the vehicle, the defendant, who was wearing a dark colored sweatshirt, stepped in front of the car. The defendant did not speak or gesture to Harris but stood there, staring expressionless into the car.

Harris returned to the passenger side and pointed a firearm at the car. Pappas told O'Halloran to drive away and O'Halloran did so, striking the defendant who remained in front of the car. As the victims drove away, Harris fired several rounds, striking Pappas in the face and O'Halloran on his right side.

Pappas and O'Halloran drove about one-half mile before they called 911. They were ultimately transported to the hospital. Meanwhile, police officers arrived at Thorndike Field to investigate and found the defendant sitting on a wooden guardrail. The defendant requested medical attention, telling the officers that he had been hit by a car. When asked about a possible shooting in the area, the defendant denied knowing anything about anyone being hurt. The defendant was transported to the hospital for his injuries and later charged.

The police officers who remained on scene at Thorndike Field found Harris on the bike path near the Alewife Station. He was breathing heavily and when the officers approached him and asked where he had been, he told them that his friend was just hit by a car. The officers saw a gun magazine hanging from the waist of his pants and placed him in handcuffs. As he was being placed in custody, Harris told the officers that they should be helping his friend who was hit by a car.

The case proceeded to trial six months after Harris pleaded guilty. At trial, the defendant did not call any witnesses. Instead, trial counsel's strategy was to challenge the sufficiency of the evidence supporting the Commonwealth's theory of joint venture by thorough cross-examination and argument. Defense counsel admitted that the defendant was present at the scene but claimed he was not involved in the crime in any way and that Harris shot the victims spontaneously of his own accord. In essence, the defense was that the defendant was in the proverbial "wrong place at the wrong time."

The jury returned guilty verdicts on two counts of assault and battery by means of a dangerous weapon. Thereafter, the defendant filed a motion for a new trial in which he claimed, among other issues, that his trial counsel provided ineffective assistance by failing to interview and call Harris as a defense witness. He requested an evidentiary hearing.

In support of his motion were numerous e-mails between trial counsel and appellate counsel as to whether Harris was interviewed and why trial counsel did not call Harris as a witness at the defendant's trial. After a series of e-mail requests and what appears likely a telephone conversation, trial counsel declined to provide an affidavit in support of the motion for a new trial. Also included for the motion judge to review was an affidavit from Harris dated October 2, 2019, in which Harris claimed that he was solely responsible for the crimes and that the defendant had no knowledge of his intentions.^[2]

The Commonwealth filed an opposition, requesting the motion be denied without a hearing since it was not supported by an affidavit of trial counsel admitting that he had not interviewed

Harris. In a supplemental affidavit filed the same day as the Commonwealth's opposition, Harris averred that he "was never interviewed by anyone representing" the defendant at trial, even though he was "always willing[ ] to provide [his] recollection of the . . . events." He also averred that he "remain[s] willing to testify." The motion judge discredited this second affidavit on the ground that it "was likely prepared to rebut the Commonwealth's opposition" and denied the motion for a new trial without an evidentiary hearing.

Discussion.

1. Ineffective assistance of counsel.

The defendant claims he was entitled to an evidentiary hearing to determine whether trial counsel was ineffective in failing to interview Harris and call Harris as a witness at trial. He also claims that his trial counsel was ineffective in failing to object to various continuances and failing to file a motion to dismiss on his perceived violations of his right to a speedy trial.

A court may allow a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), where "it appears that justice may not have been done." Commonwealth v. Wheeler, 52 Mass.App.Ct. 631, 635 (2001). On review, we consider whether the motion judge committed a significant error of law or abuse of discretion in denying the defendant's motion for a new trial. Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015).

"Under the abuse of discretion standard, the issue is whether the judge's decision resulted from a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted) . I_d. Since the motion judge was not the trial judge, we can independently assess the trial record. See Commonwealth v. Wright, 469 Mass. 447, 461 (2014); Commonwealth v. Masonoff, 70 Mass.App.Ct. 162, 166 (2007) .

A defendant is not automatically entitled to a hearing on a motion for a new trial. To receive a hearing, the defendant must first raise a "substantial issue" of fact by the motion or affidavits. See Mass. R. Crim P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001).

The judge deciding the motion has discretion to review the motion and affidavits and determine whether a substantial issue has been raised. The judge must look to the "seriousness of the issue asserted" and to "the adequacy of the defendant's showing." Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). See Commonwealth v. Martinez, 86 Mass.App.Ct. 545, 550 (2014) ("when the defendant raises a substantial issue of fact, it is the better practice to conduct an evidentiary hearing").

In finding that the defendant did not establish trial counsel's failure to interview Harris, the motion judge relied on the absence of an affidavit from trial counsel and as mentioned, discredited Harris's supplemental affidavit. However, because the defendant made an adequate showing of a substantial factual issue by submitting the series of e-mail messages between trial counsel and appellate counsel with his motion, an evidentiary hearing should have been conducted. In an e-mail to trial counsel...