COMMONWEALTH v. BEAUCHAMP (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

At a second trial, after remand by the Supreme Judicial Court,² a Superior Court jury found the defendant, Robert C. Beauchamp, guilty of second degree murder, and the judge sentenced him to life in prison. This court affirmed that conviction. See Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 591 (2000). The defendant subsequently filed a motion for a reduction of his verdict pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), which a different judge denied after a nonevidentiary hearing. On appeal, the defendant contends that the judge erred in denying his motion, claiming that his trial counsel's failure to impeach the substitute medical examiner's testimony with medical studies constituted ineffective assistance of counsel. Although the defendant originally filed his motion under rule 25 (b) (2), the motion judge concluded, and we agree, that the defendant's ineffective assistance of counsel claim is most properly analyzed as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We affirm.

We review the denial of a “motion for a new trial for a significant error of law or other abuse of discretion” (quotation omitted). Commonwealth v. Robinson, 480 Mass. 146, 149 (2018). “The two-part test a defendant must satisfy to prevail on a claim of ineffective assistance of counsel in Massachusetts is familiar. The defendant must show that counsel's performance fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that [counsel's] performance ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Marinho, 464 Mass. 115, 123 (2013), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012) (“defendant must prove both deficient performance and prejudice” to succeed on ineffective assistance of counsel claim). A defense is “ ‘substantial’ ․ where we have a serious doubt whether the jury verdict would have been the same had the defense been presented.” Commonwealth v. Millien, 474 Mass. 417, 432 (2016). Tactical decisions by defense counsel constitute ineffective assistance of counsel only if they are “manifestly unreasonable when made,” meaning that “lawyers of ordinary training and skill in the criminal law would not consider [the tactics] competent” (quotation omitted). Commonwealth v. Burgos, 462 Mass. 53, 69 (2012).

At his first trial, the defendant testified that he fired in self-defense when the victim rushed at him with a large knife, and that the victim “stumbl[ed]” out of the apartment after the defendant fired the last bullet. See Beauchamp, 49 Mass. App. Ct. at 593. Police did not find fingerprints on the knife allegedly wielded by the victim. Id. at 600 n.13. The medical examiner who had performed the victim's autopsy testified at the first trial, and opined that the defendant shot the victim “five times at close range,” that “one shot had been fired from behind the victim,” and that “[t]wo of the bullets had a downward trajectory, as if the shooter had stood over the victim and fired into his chest.” Id. at 593. The medical examiner further testified that some shooting victims are able to travel “considerable distance[s]” from the locations where they are shot before collapsing.

At the second trial, the Commonwealth and defense counsel agreed to read the defendant's testimony from his first trial into the record. The Commonwealth also read into the record the prior trial testimony of the medical examiner, by then unavailable. The Commonwealth also called a substitute medical examiner, who testified that the victim likely did not have “purposeful movement” after the defendant shot him through the heart, and opined that the victim was likely “shot where [he] was found.”

On appeal, the defendant argues that the judge erroneously denied his motion because defense counsel's failure, at his second trial, to impeach the Commonwealth's substitute medical examiner with medical studies reflecting cardiac gunshot victim survival rates constituted ineffective assistance of counsel. The defendant contends that the studies would have undermined the substitute medical examiner's conclusion that the victim was likely “shot where [he] was found” by demonstrating that cardiac gunshot victims can survive postshooting. As the judge found, however, while the studies may have provided information about mortality rates for cardiac gunshot victims, they did not “provide any analysis as to whether penetrating cardiac wound victims were able to walk, run, or otherwise move from their position in the immediate aftermath of a gunshot wound.” Consequently, the studies would not have corroborated the defendant's claim that the victim “stumbl[ed]” out of the defendant's apartment after the defendant shot him in self-defense, or undermined the substitute medical examiner's testimony about the victim's inability to move postshooting. Given that the studies did not support the defendant's self-defense claim, the judge properly concluded that defense counsel's failure to introduce the studies did not fall “measurably below that which might be expected from an ordinary fallible lawyer.” Marinho, 464 Mass. at 123, quoting Saferian, 366 Mass. 96.

We further agree with the judge that defense counsel's failure to introduce or utilized the studies did not “deprive[ ] the defendant of an otherwise available, substantial ground of defence” because other evidence at trial supported the defendant's self-defense theory. Saferian, 366 Mass. at 96.³ Again, the testimony of the original medical examiner at the first trial was read to the jury at the second trial. The original medical examiner testified that cardiac gunshot victims “may go a considerable distance from the site of where the wound has occurred and die elsewhere.” In the same vein, during closing argument, defense counsel asserted that after the defendant shot the victim, the victim “stumble[d]” out of the defendant's apartment and moved down the stairs before dying on the second-floor landing. Accordingly, the judge properly concluded that the original medical examiner's testimony “could have led the jury to believe [the defendant's] version of events” even without with the introduction of the medical studies. In view of the fact that the original medical examiner's testimony, which was read to the jury at the second trial, supported the defendant's self-defense theory, the absence of the medical studies did not necessarily “deprive[ ] the defendant of an otherwise available, substantial ground of defence.” Id.⁴

Order entered August 29, 2017, denying motion for reduction of verdict affirmed.

FOOTNOTES

2.   See Commonwealth v. Beauchamp, 424 Mass. 682 (1997).

3.   Moreover, “because there is no affidavit from trial counsel, the defendant's assertions about what counsel did not do is speculative and need not be considered.” Commonwealth v. Rice, 441 Mass. 291, 304(2004), citing Commonwealth v. Knight, 437 Mass. 487, 502 & n.17 (2002).

4.   To the extent that we do not address the defendant's other contentions, “they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).