Commonwealth v. Richardson

93 Mass.App.Ct. 1121

107 N.E.3d 1257 (Table)

COMMONWEALTH

v.Dwayne J. RICHARDSON.

17-P-696

Appeals Court of Massachusetts.

Entered: July 30, 2018.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant on three indictments charging unlawful possession of a firearm in violation of G. L. c. 269, § 10(a ).² Each indictment further alleged that the defendant previously had been convicted of three violent crimes or serious drug offenses, thus subjecting him to enhanced sentencing as an armed career criminal under G. L. c. 269, § 10G(c ). At a jury-waived subsequent offender trial, the judge found that the defendant had committed each of the predicate offenses and that he was guilty of the subsequent portions of the indictments.

Following his convictions, the defendant filed a motion for a new trial in which he claimed ineffective assistance of counsel. He also filed a motion seeking funds to retain an expert in eyewitness identification and a motion seeking discovery of information related to identification procedures and the manner in which certain evidence was obtained. These motions were denied without a hearing by a judge who was not the trial judge.³ The defendant's direct appeal was consolidated with his appeal from the denial of his motion for a new trial. The sole issue raised in both appeals is whether the defendant was deprived of the effective assistance of counsel.⁴ For the reasons that follow, we affirm the convictions and the orders denying all postjudgment motions.

Background. We summarize the facts the jury could have found, reserving certain details for later discussion. On April 23, 2012, Massachusetts State police Troopers Orlando Tirella, Patrick Burke, Bradford Porter, and Sergeant Paul Bulman were conducting surveillance on a residence located at 26-28 Minnesota Avenue in Somerville in an effort to locate Robert F. Rogers, a white male, for whom they had an arrest warrant. The troopers were in plainclothes and were driving unmarked vehicles.⁵ At approximately 3:00 P . M ., Tirella, Bulman, and Burke observed a light-skinned black or Hispanic male, subsequently identified as the defendant, leave the residence and enter a black Mercedes sedan that was parked on the street in front of the residence. The defendant backed into the driveway, waited a few minutes, and then drove away. At this point, a white male, whom the troopers believed to be Rogers, was in the front passenger seat. The troopers followed the Mercedes to a Hess gasoline station and convenience store where the defendant parked at a gas pump and then walked into the store, crossing paths with Burke as he did so. Meanwhile, the passenger began to pump gas into the Mercedes.

The troopers approached the passenger and identified themselves. At about the same time, Tirella saw the defendant emerge from the convenience store. When he saw the troopers, the defendant immediately turned and ran away. Porter and Burke chased after him, but the defendant was not found.

It was soon determined that the passenger was not Rogers. Because the passenger did not have a valid license to operate a motor vehicle and the defendant had fled, the troopers arranged to have the Mercedes towed and conducted an inventory search during which they found two shotguns and a semiautomatic rifle in the trunk. Upon discovering the firearms, the passenger was arrested. The Mercedes was then towed to the police station.

The next day, Tirella searched the Mercedes again (the second search) and found a medical test form (the document) under the driver's seat that was dated April 18, 2012, and contained the defendant's name and date of birth. Based on this information, Tirella obtained the defendant's driver's license photograph from the registry of motor vehicles (RMV) and concluded that the person in the photograph was the driver of the Mercedes. After viewing the photograph, Burke and Porter also identified the defendant.

During the ensuing investigation, surveillance video was obtained from the convenience store. The video and still photographs from the video depicting the defendant were introduced in evidence. The firearms were test-fired and determined to be operable. The firearms had been stolen from Rogers's grandfather, who resided at 26 Minnesota Avenue.

The defense at trial was misidentification. Through cross-examination of the Commonwealth's witnesses, the defendant attempted to undermine the troopers' identifications of him by highlighting the brevity of their interaction. The defendant also asserted that the quality of the surveillance video was not sufficient to make a reliable identification.

As indicated, the defendant filed a motion for a new trial. In that motion, and on direct appeal, he contends that trial counsel was ineffective for failing to file a motion to suppress the document seized during the second search of the Mercedes and for not attempting to exclude the troopers' identifications of him from the RMV photograph. He further alleges that counsel was ineffective because he did not adequately cross-examine Burke, object to the prosecutor's allegedly misleading statements during closing argument, request the standard jury instruction on identification, or present expert testimony on eyewitness identifications.

In a comprehensive memorandum of decision and order, the motion judge rejected the defendant's claims of ineffective assistance of counsel. We review her order denying the new trial motion to determine whether there has been a significant error of law or the abuse of discretion. See Commonwealth v. Grace, 397 Mass. 303, 307 (1988). The judge also denied the defendant's motions seeking discovery and funds. We review the denial of these motions for abuse of discretion as well. See Commonwealth v. Zagrodny, 443 Mass. 93, 108 (2004) ; Commonwealth v. Ware, 471 Mass. 85, 94 (2015).

Discussion. We review claims of ineffective assistance of counsel under the familiar two-prong Saferian test. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). First, we examine "whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinarily fallible lawyer." Ibid. Second, we examine whether such behavior "likely deprived the defendant of an otherwise available, substantial ground of defence." Ibid. The defendant has the burden to establish both prongs. Commonwealth v. Pike, 53 Mass. App. Ct. 757, 760 (2002). After careful consideration of the record, we conclude, as did the motion judge, that the defendant has not met his burden.⁶ We address each claim in turn.

1. Failure to challenge the second search. The defendant first contends that trial counsel was ineffective for failing to file a motion to suppress the document found by Tirella during the second search of the Mercedes.⁷ In order to establish that counsel was ineffective on this ground, the defendant must "demonstrat[e] a likelihood that the motion[s] to suppress would have been successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004). He cannot do so, because it is undisputed that he abandoned the Mercedes and its contents when he fled.⁸

To prevail on a motion to suppress under art. 14 of the Massachusetts Declaration of Rights, the defendant must demonstrate that he has standing to contest the search and that he had an expectation of privacy in the area searched or in the item seized that society recognizes as reasonable.⁹ Commonwealth v. Carnes, 81 Mass. App. Ct. 713, 716 (2012). For our present purpose, we assume without deciding that the defendant has standing. However, because it is well settled that a defendant has no right of privacy in property he has abandoned, a motion to suppress the document would have had no chance of success.¹⁰ See Commonwealth v. Pratt, 407 Mass. 647, 660 (1990) ; Commonwealth v. Bly, 448 Mass. 473, 490-491 (2007) ; Commonwealth v. Perkins, 450 Mass. 834, 842 (2008) ; Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 540 (2006) ; Commonwealth v. Cabral, 69 Mass. App. Ct. 68, 72 (2007). Accordingly, trial counsel was not ineffective for failing to pursue a motion to suppress the document. Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).

2. Failure to file a motion to suppress the photographic identifications. The defendant also claims that trial counsel should have moved to suppress the troopers' identifications of him from his RMV photograph. He contends that such a motion would have been successful on the ground that the circumstances surrounding the identifications were unnecessarily suggestive. We disagree.

"The burden [i]s on the defendant to prove by a preponderance of the evidence that the photographic identification was unnecessarily suggestive." Commonwealth v. Venios, 378 Mass. 24, 29 (1979). Nothing in the record warrants the conclusion that the defendant could have met this burden. As an initial matter, we observe that Tirella's identification was not the result of any procedure per se. Rather, Tirella appears to have made his identification during the ordinary course of his investigation. As regards the identifications made by Burke and Porter, the defendant has failed to point to any facts, other than that they viewed a single photograph, that would warrant a conclusion that the identification procedure was unnecessarily suggestive.

For constitutional purposes, a one-photograph identification is the equivalent of an in-person, one-on-one identification, a procedure which is generally disfavored. However, a one-photograph identification will not be suppressed unless the defendant proves by a preponderance of the evidence that the police procedure was "so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [the defendant] of due process of law." Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 712 (2018), quoting from Commonwealth v. Dew, 478 Mass. 304, 306-307 (2017). In determining...