COMMONWEALTH v. NEGRON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Jose L. Negron, appeals from the orders denying his third and fourth motions for a new trial. Concluding that many of his claims have already been addressed and rejected by other panels of this court, and that the remaining claims fail to raise any substantial issues or suggest that justice was not done, we affirm.

Procedural background. 1. Jury trial. The defendant was indicted on twenty charges in connection with a 2005 home invasion. Following a jury trial in 2007, he was convicted on fourteen of those indictments: one for home invasion, three for armed kidnapping; two for armed robbery while masked, and eight relating to firearms.

2. Direct appeal and first motion for a new trial. In the consolidated appeal from his convictions and the denial of his first motion for a new trial, a panel of this court concluded that the admission of ballistics certificates at trial was error under Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), and that the error was not harmless beyond a reasonable doubt. See Commonwealth v. Negron, 81 Mass. App. Ct. 1137 (2012) (Negron I). As a result, the panel reversed all but the defendant's conviction for home invasion, which did not require proof of operability of a firearm and, therefore, was not materially affected by the admission of the ballistics certificate. The Supreme Judicial Court denied further appellate review. See Commonwealth v. Negron, 463 Mass. 1103 (2012).

The Commonwealth thereafter dismissed the thirteen remaining indictments. As a result, the defendant stood convicted of only the home invasion charge and continued to serve his State prison sentence of twenty to twenty-five years.

3. Second motion for a new trial. In 2012, the defendant filed, and the trial judge summarily denied, the defendant's second motion for a new trial. On appeal from the order denying that motion, a different panel of this court considered and rejected each of the defendant's arguments. See Commonwealth v. Negron, 85 Mass. App. Ct. 1103 (2014) (Negron II).

In Negron II, the defendant argued that the trial judge erred by adding a fifth element to the offense of home invasion -- “that [the defendant] committed the offense while he was armed with a firearm” -- and later withdrawing that instruction, and that trial counsel was ineffective for failing to object. The panel concluded that the instruction did not create a substantial risk of a miscarriage of justice. The panel also rejected the defendant's argument that the Commonwealth failed to prove the dangerous weapon element of the home invasion charge. The panel explained that the jury were required to consider whether the object had the apparent ability to inflict harm and whether the victim reasonably so perceived it and concluded that the evidence was sufficient to prove this element. Finally, the panel rejected the defendant's ineffective assistance of counsel claim premised on the admission of the ballistics certificates, reaffirming that their erroneous admission did not warrant reversal of the home invasion conviction given the different nature and elements of that charge. The defendant's request for further appellate review was denied. See Commonwealth v. Negron, 468 Mass. 1103 (2014).

4. Third and fourth motions for a new trial. In October 2018, the defendant filed his third motion for a new trial. In February 2019, the trial judge having retired, a different judge denied the motion without an evidentiary hearing. While his appeal from the denial of the third motion was pending, in November 2019, the defendant filed a fourth motion for a new trial, which he styled as a motion for a required finding of not guilty and reduction of verdict pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). In February 2020, the motion judge construed the fourth motion as one brought under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and denied it without an evidentiary hearing.

In her decisions on the third and fourth motions, the motion judge concluded that several of the defendant's claims were barred by direct estoppel because the defendant merely sought to relitigate issues already raised and decided in prior proceedings. The judge found that all of the defendant's remaining grounds were waived because they were not previously raised, and that none presented a substantial risk of a miscarriage of justice. We allowed the defendant to consolidate his appeals from the denials of his third and fourth motions and to submit supplemental briefing.

Discussion. “In reviewing the denial of a motion for a 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. Sullivan, 478 Mass. 369, 380 (2017), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). “Judges are to apply the standard set out in Mass. R. Crim. P. 30 (b) rigorously,” ․ and grant such a motion only ‘if it appears that justice may not have been done.’ ” Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992), quoting Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). “[W]here (as here) the motion judge did not preside at trial, ‘we regard ourselves in as good a position as the motion judge to assess the trial record.’ ” Commonwealth v. Naylor, 73 Mass. App. Ct. 518, 521 (2009), quoting Grace, supra.²

1. Directly estopped claims. The principle of direct estoppel bars a defendant from relitigating issues that have previously been decided against him. See Commonwealth v. Ellis, 475 Mass. 459, 475 (2016); Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005). As the motion judge properly concluded, some of the defendant's grounds for relief in his third and fourth motions were addressed by the trial judge and by different panels of this court in prior rulings. The defendant raises no new factual or legal issues with respect to these arguments, and therefore he is estopped from making them now.³

2. Waived claims. “If a defendant fails to raise a claim that is generally known and available at the time of trial or direct appeal or in the first motion for postconviction relief, the claim is waived.” Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). See Commonwealth v. Chase, 433 Mass. 293, 297 (2001). We nonetheless review a waived claim -- “whether based on [an] error itself or framed as a claim of ineffective assistance of counsel -- solely to determine whether the error gives rise to a substantial risk of a miscarriage of justice.” Commonwealth v. Russell, 439 Mass. 340, 345 (2003).

a. Joint venture. The trial judge instructed the jury on the Commonwealth's “alternate theories” that the defendant committed the offense of home invasion as a principal or as part of a joint venture. The decision to instruct on joint venture was proper because the evidence showed that the defendant and three other men committed the offense together. See Commonwealth v. Gonzalez, 443 Mass. 799, 805 (2005) (“An instruction is proper if it is supported by any hypothesis based reasonably on the evidence”).⁴

The defendant argues that the joint venture instruction was deficient because the trial judge failed to instruct on the so-called “knowledge of the gun” requirement. See Commonwealth v. Gorman, 84 Mass. App. Ct. 482, 489 (2013) (knowledge of weapon required where defendant prosecuted under joint venture theory and use or possession of dangerous weapon is element of predicate offense). The record belies the defendant's claim; the trial judge did in fact give such an instruction.⁵ The defendant also challenges the trial judge's additional instruction on withdrawal from or abandonment of a joint venture in response to a question posed by the jury. As the motion judge properly concluded, any error in that instruction did not create a substantial risk of a miscarriage of justice because there was no evidence that the defendant abandoned or withdrew from the home invasion prior to his arrest at the apartment.

The defendant contests the verdict on the home invasion charge because the jury did not state whether they convicted the defendant as a principal, a joint venturer, or both.⁶ The jury were not required to do so, nor were they required to reach a unanimous verdict as to whether he acted as a principal or joint venturer. See Commonwealth v. Silva, 471 Mass. 610, 621 (2015); Commonwealth v. Gonzalez, 68 Mass. App. Ct. 620, 628 (2007). Moreover, we review “whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime, rather than examine the sufficiency of the evidence separately as to principal and joint venture liability.” Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). See Commonwealth v. Miranda, 474 Mass. 1008, 1008 (2016) (same principles apply to claims concerning sufficiency of joint venture evidence even when trial preceded Zanetti decision).

Even if the defendant was entitled to have the evidence of joint venture liability evaluated separately from that of principal liability, no substantial risk of a miscarriage of justice exists here. The evidence showed that defendant knocked on the door of the apartment and spoke with an occupant, forced his way inside by displaying a weapon, entered the apartment with three other men who were masked and armed, and, along with those three other men, threatened to shoot some of the occupants, demanded drugs and money, searched the apartment, and took items from the occupants. The evidence was sufficient to convict the defendant as either a principal or a joint venturer. See Commonwealth v. Smith, 458 Mass. 1012, 1013 (2010).

Finally, the defendant argues that any conviction as a joint venturer cannot stand because none of his alleged coventurers was ultimately convicted of home invasion as a principal.⁷ The defendant has failed to demonstrate a substantial risk of a miscarriage of justice. The jury were instructed to evaluate each indictment separately, and the evidence was sufficient to support the defendant's conviction as principal; therefore, any potentially inconsistent verdict of the defendant's coventurers does not undermine the defendant's conviction. See Commonwealth v. Fluellen, 456 Mass. 517, 523 (2010). Furthermore, inconsistent verdicts warrant reversal of a conviction only where three conditions are met: “[1] a crime charged that by its nature requires a combination of individuals; [2] a single trial of all the participants in the crime; and [3] an acquittal of all but one of the participants.” Commonwealth v. Wood, 469 Mass. 266, 292 (2014), quoting Fluellen, supra at 520. The coventurers need not be convicted of the exact same offense as the defendant.

b. Commonwealth's witnesses. The defendant raises two issues with the testimony of the Commonwealth's two percipient witnesses. The defendant first argues that one of the witnesses was coerced into testifying that the defendant possessed the nine millimeter handgun through leading questions posed by the trial prosecutor. The trial judge had the discretion to permit the prosecutor to use leading questions. See Commonwealth v. Britt, 465 Mass. 87, 91 n.5 (2013); Commonwealth v. Carrion, 370 Mass. 408, 411 (1976). Even if objections to leading questions had been raised and sustained, there is no substantial risk that the witnesses would not have provided the same testimony. See Commonwealth v. Smith, 456 Mass. 476, 485 (2010) (no ineffective assistance where there was no “indication that the use of leading questions elicited testimony that would not have been forthcoming in any event”).

The defendant's claim that the jury erroneously credited the testimony of the two percipient witnesses who gave inconsistent accounts at trial and to police and one witness who had a hostile demeanor during cross-examination is meritless. “It is elementary that the acceptance or rejection of oral testimony, in whole or in part, is within the exclusive province of the jury.” Commonwealth v. Holiday, 349 Mass. 126, 129 (1965).

c. Defendant's decision not to testify. The defendant argues that his trial counsel was ineffective for advising him to forgo his constitutional right to testify on his own behalf, and that if he had testified, he would have been convicted of a lesser offense. According to the defendant, his trial counsel advised him that his testimony would give the jury the “wrong impression” of him and would result in a finding that he participated in a joint venture. “It is not enough to say that counsel had discouraged him from testifying.” Commonwealth v. Marrero, 459 Mass. 235, 242 (2011). The defendant offers nothing more. Indeed, he waived his right to testify after a lengthy colloquy, and nothing in the record suggests that the decision was not knowing or voluntary. See id.

d. Lesser included offense. The defendant contends that the jury should have been permitted to consider whether to convict him of “armed in dwelling,” which he contends is the lesser included offense of home invasion. On this record, the judge's failure to submit the lesser offense to the jury sua sponte was not error and did not create a substantial risk of a miscarriage of justice. The defendant has not articulated a rational basis for the jury to acquit him of home invasion and convict him of a lesser included offense. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 238-239 (2013).

e. Prosecutor's conduct. The defendant argues that the trial prosecutor pursued a personal vendetta against him because he rejected a plea offer and chose to go to trial. At sentencing, the prosecutor argued that the defendant did not stand in the same position as his codefendants who pleaded guilty and accepted responsibility.⁸ The trial judge made clear that in determining the appropriate sentence, she did not consider the codefendant's conduct except as it related to the defendant's guilt as a joint venturer. Given that the trial judge expressly disavowed reliance on the prosecutor's rationale, we discern no substantial risk of a miscarriage of justice. See Commonwealth v. Mayotte, 475 Mass. 254, 265 (2016).

The defendant also asserts that the prosecutor failed to disclose that one of his alleged coventurers intimidated a potential witness. He does not explain, nor is it apparent from the record, how the withholding of this evidence prejudiced him.

3. Motion for a required finding of not guilty. The defendant styled his fourth motion as one for a required finding of not guilty and a reduction of verdict under the second sentence of rule 25 (b) (2). The motion judge properly construed the motion as a motion for a new trial under rule 30 (b). See Commonwealth v. Gilbert, 447 Mass. 161, 167 (2006), quoting Commonwealth v. Preston, 393 Mass. 318, 322-323 (1984) (“Because the defendant's motion for a new trial could have been filed under either rule, and ‘[n]othing of consequence turn[ed] on this difference,’ we treat the motion ‘according to [its] nature and substance’ rather than [its] technical form”). However, even if it were appropriate to treat the fourth motion as one brought rule 25 (b) (2), the defendant fares no better.

“A rule 25 (b) (2) motion may seek any or all of three forms of relief: a new trial, a finding of not guilty, or a reduction of the verdict to a lesser included offense.” Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 409 (2013). We review a defendant's request for a new trial or a reduction in verdict pursuant to rule 25 (b) (2) for abuse of discretion. See id. at 410. Given the history and facts of this case, the motion judge did not abuse her discretion in declining to reduce or reverse the verdict.

To assess a request for a required finding of not guilty pursuant to rule 25 (b) (2), we view the evidence in the light most favorable to the Commonwealth. See id. The evidence was sufficient to support the defendant's conviction for home invasion for the reasons explained by other panels of this court in Negron I and Negron II. The defendant is not entitled to relief under rule 25 (b) (2).

4. Lack of an evidentiary hearing. The motion judge did not abuse her discretion in declining to hold an evidentiary hearing before deciding the defendant's third and fourth motions for a new trial. The defendant's motions and supplemental materials did not raise any substantial issues. See Commonwealth v. Amaral, 482 Mass. 496, 509 (2019), quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001) (“A judge may decide a motion for a new trial without holding an evidentiary hearing if ‘no substantial issue is raised by the motion or affidavits’ ”).

We are mindful that in determining whether a new trial should be granted, the motion judge may “look beyond the specific, individual reasons for granting a new trial to consider how a number of factors act in concert to cause a substantial risk of a miscarriage of justice and therefore warrant the granting of a new trial.” Commonwealth v. Rosario, 477 Mass. 69, 77-78 (2017). Even when considered in their totality, the defendant's claims do not suggest that justice may not have been done.

Conclusion. The order dated February 28, 2019, denying the third motion for a new trial, is affirmed. The order dated February 13, 2020, denying the fourth motion for a new trial, is affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   In his briefs in this consolidated appeal, the defendant does not challenge the motion judge's rulings with respect to some of the issues raised in his motions. We address the claims raised in the defendant's briefs to the extent we are able to discern them, and to the extent they are supported by reasoned argument and adequate citations to authorities and the record. We pass on claims that are not raised or supported. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

3.   Specifically, the defendant is estopped from arguing that he was prejudiced by the erroneous jury instruction on home invasion, that trial counsel was ineffective for failing to present evidence that one of the firearms malfunctioned during a test-fire, that the evidence was insufficient to prove that the defendant possessed a dangerous weapon during the home invasion, that assorted errors relieved the Commonwealth of its burden of proving the dangerous weapon element of the offense, that the evidence was otherwise insufficient to convict the defendant of home invasion, that the jury improperly weighed and credited certain evidence, that appellate counsel did not properly challenge the home invasion conviction on direct appeal, and that this court erred in concluding that the offense of home invasion had different elements from offenses on which the defendant's convictions were reversed.

4.   To the extent that the defendant contends that the Commonwealth should have been barred from presenting any evidence of joint venture without first showing that a joint venture existed by the preponderance of the evidence, we reject that argument for the same reasons set forth by the motion judge and in the Commonwealth's brief. The cases on which the defendant relies concern the admissibility of specific types of evidence not at issue here. See Commonwealth v. Braley, 449 Mass. 316, 319-320 (2007) (admissibility of out-of-court statements by one coventurer against another when made in furtherance of ongoing joint venture); Commonwealth v. Young, 10 Mass. App. Ct. 410, 414-415 (1980) (admissibility of one defendant's acts or statements against another in joint enterprise).

5.   “Some of the offenses that are before you have as elements the use or possession of a weapon. Therefore, in proving a shared intent under this joint venture theory for those particular offenses, the prosecution will have to have shown, in other words, the evidence must convince you beyond a reasonable doubt that Mr. Negron knew that the principal actor possessed the weapon in question, and that Mr. Negron knew the principal actor would or could use that particular weapon in the commission of the crime.”

6.   The trial judge did not err in furnishing the jury with a general verdict slip for the home invasion charge over defense counsel's objection. See Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009) (“We continue to permit the trial judge to furnish the jury with a general verdict slip even when there is differing evidence that the defendant committed the crime as a principal or as an accomplice”).

7.   In his brief, the defendant asserts that each of the three alleged coventurers was convicted of “armed burglary in dwelling.” The record in this case reflects that at least two of the three alleged coventurers were indicted on a home invasion charge but pleaded guilty to other offenses in connection with the 2005 incident.

8.   As additional support for his claim of a vendetta, the defendant alleges that during a lobby conference, the judge “expressed concern” that the prosecutor did not extend the same plea offer to the defendant as she did to his coventurers. He also claims that his plea offer was conditioned upon him falsely stating that he knew his coventurers were wearing body armor before the commission of the crime.