COMMONWEALTH v. FELTON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this consolidated appeal from the denial of his third and fourth motions for new trial, the defendant argues his trial counsel was ineffective for failing to press an alibi defense and for advising him not to testify in his own defense. He also argues that the motions should not have been denied without evidentiary hearings. We affirm.

Because this appeal is from the denial of motions for new trial, “we ‘examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.’ ” Commonwealth v. Brescia, 471 Mass. 381, 387 (2015), quoting Commonwealth v. Wright, 469 Mass. 447, 461 (2014). Under the familiar Saferian test, a defendant is denied constitutionally effective assistance of counsel if the representation fell “measurably below that which might be expected from an ordinary fallible lawyer,” and the performance inadequacy “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 755 (2008). “In cases where tactical or strategic decisions of the defendant's counsel are at issue, we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful.” Commonwealth v. Valentin, 470 Mass. 186, 190 (2014), quoting Commonwealth v. White, 409 Mass. 266, 272 (1991). Where, as here, the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was “'manifestly unreasonable' when made.” Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

Each of the claims in the defendant's motions either has been waived for failure to raise it at trial, on direct appeal, or in a prior motion for new trial. See Mass. R. Crim. P. 30 (b), (c) (2), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Ellis, 475 Mass. 459, 476 (2016); Commonwealth v. Morganti, 467 Mass. 96, 101-102, cert. denied, 574 U.S. 933 (2014); Commonwealth v. Chase, 433 Mass. 293, 297 (2001). “If a motion for a new trial rests on an unpreserved claim of nonconstitutional error, a new trial should be granted only if the defendant demonstrates a ‘substantial risk of a miscarriage of justice,’ Commonwealth v. Childs, 445 Mass. 529, 530 (2005), namely, ‘a serious doubt whether the result of the trial might have been different had the error not been made.’ Commonwealth v. Randolph, 438 Mass. 290, 297 (2012).” Brescia, 471 Mass. at 389. “The rule of waiver ‘applies equally to constitutional claims which could have been raised, but were not raised’ on direct appeal or in a prior motion for a new trial.” Commonwealth v. Roberts, 472 Mass. 355, 359 (2015), quoting Commonwealth v. Watson, 409 Mass. 110, 112 (1991).

“A defendant generally may not raise any ground in a motion for a new trial that could have been, but was not, raised at trial or on direct appeal. Commonwealth v. Pisa, 384 Mass. 362, 366 (1981), and cases cited. This requirement ensures the finality of convictions by eliminating piecemeal litigation, which would ‘unfairly consume public resources without any corresponding benefit to the administration of justice.’ Id. It is neither unreasonable nor unduly burdensome to require a defendant to advance his contentions, even those with constitutional ramifications, at the first opportune time. Murch v. Mottram, 409 U.S. 41, 45 (1972). ‘We cannot retry every criminal [case] on the basis of what might have been.’ Commonwealth v. Stout, 356 Mass. 237, 243 (1969). Thus, even when a claim is one of constitutional dimension, a defendant who has had a fair opportunity to raise it may not ‘belatedly invoke that right to reopen a proceeding that has already run its course.’ Commonwealth v. Amirault, 424 Mass. 618, 639 (1997).” (Footnote omitted.)

Chase, 433 Mass. at 297.

The defendant first argues that trial counsel was ineffective for failing to raise an alibi defense in closing argument. An alibi defense is one where there is evidence “suggesting that the defendant was not present at the place and time when the offense charged in the complaint is alleged to have occurred.” Instruction 9.120 of the Criminal Model Jury Instructions for Use in the District Court (2009). See the instruction endorsed in Commonwealth v. McLeod, 367 Mass. 500, 502 n.1 (1975), quoting Devitt and Blackmar, Federal Jury Practice and Instructions § 11.31 (1970) (“Evidence has been introduced tending to establish an alibi, which amounts to a contention that the defendant was not present at the time when or at the place where he is alleged to have committed the offense charged in the indictment. If, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed, you must acquit him. The jury will always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence”). Here, there was no such evidence. Instead, all of the witnesses testified that the defendant was at the victim's residence on the morning in question. Indeed, the neighbor whose testimony to which the defendant largely points places the defendant at the scene of the crime on the morning in question, and with his hands on the victim as she lay on the ground. Any discrepancies between the neighbor's account of the length of time that elapsed between hearing thuds and coming upon the defendant assaulting the victim do not raise an alibi defense. They instead simply raised evidentiary conflicts that were for the jury to resolve. Moreover, a contention that the defendant was not present at the time and place of the offenses would have been at direct odds with the defendant's own theory of the case, which was that horseplay got out of hand after the victim made a sexual advance. Trial counsel was not to be expected to argue alibi in these circumstances.

We also see no abuse of discretion in the motion judges' conclusions that the defendant failed to raise a substantial issue regarding trial counsel's strategic and tactical decision as to the benefits and risks of placing the defendant on the witness stand. Such decisions do not amount to ineffective assistance of counsel unless they are “so manifestly unreasonable as to be unprotected by the labels of ‘trial strategy’ or ‘trial tactics.’ ” Commonwealth v. Adams, 374 Mass. 722, 728 (1978). For the detailed reasons set forth in paragraph nine of trial counsel's affidavit, the motion judges could easily conclude that counsel's decision to advise the defendant not to testify was a reasonable tactical decision, based on multiple and nuanced considerations, given with an eye towards protecting the defendant's best interests, and not manifestly unreasonable. See Commonwealth v. Smith, 459 Mass. 538, 551 (2011). The judges were entitled to credit trial counsel's affidavit without conducting an evidentiary hearing.

Orders dated May 2, 2016, and June 5, 2017, denying third and fourth motions for new trial, affirmed.