COMMONWEALTH v. ANDERSON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Matthew Anderson, appeals from convictions, after a Superior Court jury trial, of armed and masked robbery, G. L. c. 265, § 17, and carrying a firearm without a license, G. L. c. 269, § 10 (a). He also challenges the denial of his motion for a new trial and other postconviction relief. We affirm the defendant's convictions and the order denying his motion for a new trial and other postconviction relief.

1. Background. On July 20, 2015, at approximately 8:30 p.m., three masked men robbed a convenience store clerk at gunpoint. Two neighbors saw a sports utility vehicle leave from the convenience store and then return approximately ten minutes later. Three men left the vehicle and entered the convenience store wearing white face coverings. One of the men pointed a gun at the clerk and demanded money from the cash register. The clerk surrendered approximately $3,000. The neighbors and the clerk immediately called the police.

Within a minute of the police dispatch broadcast, an officer found a sports utility vehicle matching the description given. Before the officer flashed his lights, the driver, Shawn Godfrey, pulled the vehicle over, left the vehicle, and approached the officer while three men ran away from the vehicle. Approximately two hours later, another officer discovered the defendant underneath a truck in a carport approximately three houses away from where the vehicle had pulled over. After arriving at the police station, the defendant requested and was brought to the hospital for medical treatment. Pursuant to a search warrant, the police discovered three white T-shirts, a loaded firearm, a white Galaxy cell phone, and $1,280 in the sports utility vehicle.

2. Ineffective assistance of counsel. “[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ ” Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). When the basis for a motion for a new trial is a claim of ineffective assistance of counsel, “the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge.” Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020), quoting Commonwealth v. Martin, 467 Mass. 291, 316 (2014).

a. Failure to move to sever. “It is presumed that individuals will be tried together when criminal charges ‘arise out of the same criminal conduct.’ ” Commonwealth v. Hernandez, 473 Mass. 379, 391 (2015), quoting Commonwealth v. Siny VanTran, 460 Mass. 535, 542 (2011). “Severance on the ground of mutually antagonistic defenses is required only where ‘the acceptance of one party's defense will preclude the acquittal of the other.’ ” Commonwealth v. DePina, 476 Mass. 614, 628 (2017), quoting Commonwealth v. Ramos, 470 Mass. 740, 749 (2015). “An ineffective assistance claim based on the failure to bring a motion requires the defendant to show that the motion would likely have been granted.” Commonwealth v. Diaz, 448 Mass. 286, 289 (2007).

Here, all three of the defendants questioned the sufficiency of the Commonwealth's case, including the absence of DNA testing and eyewitness identification, while also advancing their own separate grounds of defense. The defendant argued that he was not one of the robbers. Godfrey argued that, although he transported the robbers, he was not aware of their masks, weapons, or plans. These defenses were not mutually inconsistent. See Diaz, 448 Mass. at 290 (motion to sever unlikely to be granted where defendants shared common strategy). The fact that the jury convicted the defendant and acquitted Godfrey does not make their defenses antagonistic. See Ramos, 470 Mass. at 749.

Contrary to the defendant's argument, Godfrey's statement did not entitle the defendant to severance. First, “[w]here a nontestifying codefendant's statement does not inculpate a defendant directly, but does inculpate the defendant when combined with other evidence, a limiting instruction may be sufficient to cure the prejudice.” Commonwealth v. Resende, 476 Mass. 141, 150 (2017). Godfrey told the police that he believed one of his passengers “went by the name of Matt,” but he described that passenger as wearing different clothing than the defendant was wearing. Connecting this Matt to the defendant required considerable other evidence. See Commonwealth v. Rivera, 464 Mass. 56, 70-71 (2013). Accord Commonwealth v. James, 424 Mass. 770, 781-782 (1997) (statement placing defendant with codefendant several hours before murder and conversation next day insufficient to identify codefendant as associated with crimes charged). Furthermore, even if there were a problem under Bruton v. United States, 391 U.S. 123 (1968), it could have easily been resolved by omitting the name from the detective's description of Godfrey's statement. Accordingly, the motion judge, with the benefit of having presided over the trial, properly found that the defendant would not have been successful in moving for severance.

b. Failure to investigate. “Both the Massachusetts and Federal Constitutions require defense counsel ‘to conduct an independent investigation of the facts.’ ” Diaz Perez, 484 Mass. at 74, quoting Commonwealth v. Baker, 440 Mass. 519, 529 (2003). “While counsel certainly has ‘a duty to make reasonable investigations,’ counsel is also afforded the opportunity to ‘make a reasonable decision that makes particular investigations unnecessary.’ ” Commonwealth v. Holliday, 450 Mass. 794, 807, cert. denied, 555 U.S. 947 (2008), quoting Commonwealth v. Denis, 442 Mass. 617, 629 (2004).

The defendant argues that trial counsel was ineffective for failing to investigate whether police brutality was the source of the defendant's statements to the police. Trial counsel was aware that the defendant was taken to the hospital after being arrested, and should have been aware that the defendant had a small bruise on his face and that he stated it was the result of police action. Considering that the defendant had been hiding under a truck for up to two hours and had to be physically removed from under the truck, these were hardly facts that would have leapt out as requiring further investigation. Furthermore, trial counsel would have been aware that the defendant complained at booking that he had been struck in the face, jumped on by officers, and bitten by a police dog, but had no bite injuries and told the doctor at the hospital only that his face hurt.

Although the defendant claims that he informed trial counsel “about the beating I suffered,” the motion judge was entitled to discredit the defendant's self-serving affidavit. See Commonwealth v. Glacken, 451 Mass. 163, 170 (2008). This is especially so as any mention of this communication is conspicuously absent from trial counsel's affidavit. See Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004) (“[W]here trial counsel submitted his own affidavit, trial counsel's failure to confirm either of these points speaks volumes”). A defense attorney is entitled to expect that his client would tell him about something as significant as a beating by the police, and it is reasonable for defense counsel to think it unnecessary to investigate this possibility without input from his client. See Holliday, 450 Mass. at 807. In the absence of credible evidence that the defendant told trial counsel about a beating, the motion judge was well justified in finding that the defendant's claim of inadequate investigation was not supported.

Moreover, it is not evident that failure to move to suppress the defendant's statements deprived the defendant of an available, substantial ground of defense. The defendant offered no evidence that the small bruise and injuries noted in the prison medical records were inconsistent with the defendant's hiding under a truck for an extended period of time and then having to be physically removed, or that they were consistent with the prolonged, brutal assault, involving “several officers,” that the defendant described.²

Furthermore, the defendant's statements were not a significant part of the Commonwealth's case. One officer testified that it was codefendant Shorter who asked “how many of his friends were at the station” and said, “that [it] was his house and that he was just taking a nap.” Even assuming that the jury believed the officer meant to identify the defendant as making those statements, the officer's credibility was irreversibly damaged, and the prosecutor made no mention of the napping statement in his closing argument. A different officer testified that, as the defendant was being secured, he said, “I'm good. I'm all done.” Although the prosecutor argued that this statement was evidence that the defendant was part of the robbery, it was equally consistent with the defendant's theory that the defendant was merely hiding because he was intimidated by the police presence. Even if the defendant could have succeeded in suppressing these statements, their presence did not deprive him of an available, substantial defense. See Commonwealth v. Revells, 78 Mass. App. Ct. 492, 500 (2010).

c. Cell phone number discovery. The judge did not abuse her discretion in determining that the defendant's theory that the police unlawfully searched his cell phone was too speculative to warrant posttrial discovery. The detective testified that he had the defendant's phone number at the time he executed the warrant, and the police reports suggest that the police had the phone number by the end of booking. The call log evidence could have been established by reviewing the call history in either of the codefendants' phones or by asking any of the three codefendants, or the police may have had the defendant's phone number on file. Moreover, there would have been no reason for defense counsel to move to suppress the cell phone records, as they were a centerpiece of counsel's closing argument, in which he argued that records of a call from the defendant to Shorter at the time that the sports utility vehicle was being followed proved that the defendant was not in the getaway vehicle. Accordingly, the defendant failed to demonstrate that discovery regarding the cell phone records was “reasonably likely to uncover evidence that might warrant granting a new trial.” Commonwealth v. Daniels, 445 Mass. 392, 407 (2005).

Judgments affirmed.

Order denying motion for new trial and other postconviction relief affirmed.

FOOTNOTES

2.   Similarly, the uncorroborated civilian complaints against one nontestifying officer do little to add credence to the defendant's story of several officers punching him and kicking him in the legs, ribs, arms, and head.