Commonwealth v. Ocasio

Commonwealth of Massachusetts v. Luis Ocasio

No. 111978

No. 061099

Superior Court of Massachusetts, Middlesex

June 29, 2010

Caption Date: June 24, 2010

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Lu, John T., J.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR A NEW TRIAL

John T. Lu, Justice of the Superior Court

On September 29, 2008, following a jury trial, the defendant (Mr. Ocasio) was convicted of one count of trafficking cocaine in an amount greater than 100 grams. Mr. Ocasio now moves for a new trial alleging: (1) ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article XII of the Massachusetts Declaration of Rights; and (2) violation of his rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution based on the admission of a drug certificate of analysis without Mr. Ocasio having been provided with the opportunity to cross-examine the chemist.

The court determines that Mr. Ocasio received effective assistance of counsel. Trial counsel consulted with Mr Ocasio and made a reasonable tactical decision to not elicit testimony on cross from a police officer that the officer thought that Mr. Ocasio was protecting someone. The defense strategy, focused on claiming that police lied, was not manifestly unreasonable. Trial counsel's advice to Mr Ocasio to testify was entirely reasonable. The remarks made by the prosecutor in closing had little, if any, impact on the jury and did not create a substantial risk of a miscarriage of justice. Also, trial counsel's disciplinary record did not affect Mr. Ocasio's representation.

The admission of the drug certificate without Mr. Ocasio having the ability to confront the chemist, however, was not harmless beyond a reasonable doubt. Mr. Ocasio is entitled to a new trial because the court does not conclude that the admission of the drug certificate was harmless beyond a reasonable doubt.

BACKGROUND

On June 13, 2006, State Trooper Michael Richards (Trooper Richards) stopped a car on Interstate 290 in Worcester for speeding. Mr. Ocasio was the passenger. After running the driver's license information, Trooper Richards waited for back-up. After Trooper James O’Neil arrived, both troopers saw the occupants moving and shifting around. The troopers approached the car and smelled carpet deodorant and body spray.^[1] The troopers also saw white powder on the ground outside the passenger-side window as well as on the passenger seat and floor. Police took Mr. Ocasio and the driver, the co-defendant Mr. Santiago-Celeste (Mr Santiago-Celeste), out of the car. The troopers searched the car and found a large bag of what appeared to be cocaine in a void behind the glove compartment. The troopers arrested Mr. Ocasio and Mr. Santiago-Celeste.

Police took Mr. Ocasio and Mr. Santiago-Celeste to the Holden state police barracks where Officer Miguel Lopez (Officer Lopez) read them their rights in Spanish and then interviewed them. During Officer Lopez's conversation with Mr. Santiago-Celeste, Mr. Santiago-Celeste claimed to be "the biggest drug dealer in Worcester." Later, after being locked in a holding cell, Mr. Santiago-Celeste told Trooper Richards that all the cocaine in the car belonged to him. During Officer Lopez's interview of Mr. Ocasio, Mr. Ocasio first claimed that the drugs were his but after being told of the potential penalty, he recanted and said that the drugs belonged to neither he nor Mr. Santiago-Celeste.

The officers searched Mr. Santiago-Celeste and found at least two cell phones that belonged to him as well as $1, 781.00 in cash. State police searched the car at the barracks, and a second bag with a substance that resembled cocaine, larger than the first, was discovered deeper in the void behind the glove box. The second bag had a tear in it. The two bags from the glove compartment, samples of the white powder found on the passenger side floor, and on the ground outside the car's window were submitted to the state laboratory for analysis. No police officers gave expert opinions that the substances were cocaine.

Mr. Ocasio retained trial counsel to represent him. Mr. Ocasio and Mr. Santiago-Celeste were tried together to a jury from September 19, 2008 through September 29, 2008. At trial, both Mr. Ocasio and Mr. Santiago-Celeste denied that there was cocaine in the car and also denied multiple statements attributed to them by testifying officers. The jury returned verdicts of guilty against both Mr. Ocasio and Mr. Santiago-Celeste on the charge of trafficking cocaine.

DISCUSSION

1. Motion for a New Trial Standard

Pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), a judge may allow a motion for a new trial "if it appears that justice may not have been done." A judge may, in his or her discretion, rule on a motion for a new trial without an evidentiary hearing if no substantial issue is raised by the motion or affidavits. Commonwealth v Wallis, 440 Mass. 589, 596 (2003), citing Mass.R.Crim.P. 30(c)(3). In determining whether a substantial issue is raised by the motion for a new trial, the court looks to the seriousness of the issue and the adequacy of the defendant's showing on the issue. Commonwealth v. Denis, 442 Mass. 617, 629 (2004), citing Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). A defendant must make a sufficient factual showing to warrant a hearing. Commonwealth v. Raymond, 450 Mass. 729, 733-24 (2008), citing Commonwealth v. Britto, 433 Mass. 596, 608 (2001).

I. Ineffective Assistance of Counsel

A claim of ineffective assistance of counsel raises "an issue of constitutional importance" that readily qualifies as a serious issue. Denis, 442 Mass. at 629, quoting Commonwealth v. Licata, 412 Mass. 654, 661 (1992). Although the motions and supporting materials filed by the defendant do not need to prove the issues raised, they must at least contain sufficient credible information to cast doubt on the issue. Id. at 629. The court’s focus is on whether Mr. Ocasio has made a sufficient factual showing of trial counsel's ineffective assistance to warrant an evidentiary hearing.

Where a new trial motion is based on ineffective assistance of counsel, the standard used to analyze such a claim is "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 that is found, then typically whether it has likely deprived the defendant of an otherwise available, substantial ground of defense." Commonwealth v. Watson, 455 Mass. 246, 256 (2009), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The burden of proving entitlement to a new trial based on ineffective assistance of counsel rests on the defendant. Commonwealth v. Comita, 441 Mass. 86, 90 (2004). A defendant must show better work might have accomplished something material for the defense. Id., citing Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). Where a defendant challenges tactical decisions of his counsel, he must demonstrate the decision was "manifestly unreasonable" when made. Id., citing Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Mere speculation, without more, is insufficient to establish ineffective representation. Id., citing Commonwealth v. Duran, 435 Mass. 97, 103 (2001). The defendant must show that the alleged error resulted in "actual prejudice." Commonwealth v. Urena, 417 Mass. 692, 699 (1994).

Mr. Ocasio alleges that trial counsel provided ineffective assistance because: (1) he failed to elicit testimony from Officer Lopez on cross about Officer Lopez's belief that Mr. Ocasio was covering for someone else when admitting to ownership of the cocaine; (2) trial counsel failed to pursue available substantial defenses; (3) he unreasonably advised Mr. Ocasio to testify; (4) he failed to object to various statements made by the prosecutor in closing and failed to request a curative instruction; and (5) he was publicly reprimanded and temporarily suspended from the practice of law by the Board of Bar Overseers in 2006 and faces other potential disciplinary action. Mr. Ocasio has failed to meet his burden on each of these claims.

A. Failure to Elicit Testimony from Officer Lopez on Cross Examination

Mr. Ocasio alleges that trial counsel was ineffective for not eliciting testimony concerning a statement by Officer Lopez at a motion hearing that he thought Mr. Ocasio was "taking the rap for someone else" when he admitted ownership of the cocaine. Mr. Ocasio argues that his confession was the most damaging evidence against him and that trial counsel should have challenged it by eliciting Officer Lopez's statement on cross examination. The Commonwealth argues that trial counsel's strategy was reasonable in light of the limitations on trial counsel's defense strategies imposed by Mr. Ocasio's refusal to testify against Mr. Santiago-Celeste.

A majority of Mr. Ocasio's arguments rest on post-conviction affidavits from Mr. Ocasio and appellate counsel. Although signed under penalty of perjury, they are self-serving, see Commonwealth v. Pike, 53 Mass.App.Ct. 757, 761 (2002), and the choice of deciding a motion for new trial on affidavits is left to the "sound discretion of the judge." Commonwealth v. Cutts, 444 Mass. 821, 830 (2005).

"What witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, and what trial motions to make" are all tactical decisions that do not amount to ineffective assistance unless they were manifestly unreasonable. Commonwealth v. Hernandez 63 Mass.App.Ct. 426, 431 (2005). In determining whether...