COMMONWEALTH v. GOPARIAN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a trial held in the Superior Court in 2005, a jury found the defendant, Donovan Goparian, guilty of unarmed burglary, assault, and malicious destruction of property over $250. A panel of this court affirmed the judgments, and the Supreme Judicial Court denied further appellate review. See Commonwealth v. Goparian, 69 Mass. App. Ct. 1101, S.C., 449 Mass. 1106 (2007).

Eleven years later the defendant filed a motion for postconviction relief under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). The trial judge having retired, a different Superior Court judge acted on the motion and denied it without a hearing on March 21, 2019. The defendant appeals.

The defendant's brief is rambling, repetitive, and disorganized. We address the claims raised in the defendant's brief 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).

Ineffective assistance of counsel. The defendant asserts that his trial counsel provided constitutionally ineffective assistance because counsel failed to present evidence that the defendant had cosigned a lease, paid a security deposit, and possessed a key to the apartment he was convicted of breaking and entering into. To prevail on a claim of ineffective assistance, the defendant must show that “(1) defense counsel's conduct fell ‘measurably below that which might be expected from an ordinary fallible lawyer’ (performance prong), and (2) he was prejudiced by counsel's conduct in that it ‘likely deprived the defendant of an otherwise available, substantial ground of defence’ (prejudice prong).” Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Thus, a defendant must prove both deficient performance and prejudice.” Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012).

The defendant has failed to prove either prong. At trial, one of the centrally contested issues was whether the defendant still lived at the apartment or was no longer welcome there. Leah Tower, the defendant's former girlfriend, who previously lived with him at the apartment, testified that two months prior to the crimes, she and the defendant broke up, she changed the locks, and the defendant was no longer permitted to be there unless invited. Defense counsel presented four witnesses who testified, to the contrary, that the defendant lived at the apartment at the time of the crimes. The judge clearly instructed that the Commonwealth was required to prove beyond a reasonable doubt that “the premises were a dwelling house of another.” The judge further explained, “The Commonwealth must also prove beyond a reasonable doubt that the defendant had no right of habitation or occupancy in the dwelling house at the time of the entry.”²

Defense counsel's efforts to create reasonable doubt on this issue, albeit unsuccessful, did not fall measurably below the efforts of an ordinary fallible lawyer. Even if counsel had introduced evidence that the defendant had at one point signed a lease, paid a security deposit, and had a key, it would not have been a substantial defense where the evidence showed that he did not use the key to gain entry, but entered through a bedroom window and the cellar bulkhead instead.

Duplicative convictions. The defendant argues that his conviction of malicious destruction of property is duplicative of his conviction of burglary because it is a “predicate offense.” The two crimes have similar elements regarding the defendant's state of mind -- to prove burglary the Commonwealth was required to prove that the defendant intended to commit a felony when he entered the dwelling, and to prove malicious destruction the Commonwealth had to prove that the defendant's actions were willful and intentional. But malicious destruction is not a predicate offense of burglary, and because “[e]ach offense contains elements that the other does not,” multiple convictions and sentences are appropriate and not duplicative. Commonwealth v. Vick, 454 Mass. 418, 432 (2009). See Commonwealth v. Ford, 397 Mass. 298, 302 (1986) (charges of breaking and entering in nighttime with intent to commit felony, larceny in building, and malicious destruction of property arising from same incident not duplicative); Commonwealth v. Donoghue, 23 Mass. App. Ct. 103, 112–113 (1986) (charges of armed assault in dwelling and mayhem not duplicative).

Instructions on defendant's intent. The defendant argues the judge failed to instruct that the Commonwealth was required to prove that he had the intent to commit a felony at the moment he entered the dwelling. To the contrary, the judge clearly instructed that “the Commonwealth must prove beyond a reasonable doubt that the defendant specifically intended to commit a felony in the dwelling at the time of entry” (emphasis added). The defendant also claims that the judge's instructions distinguishing between felonies and misdemeanors were inadequate. This issue was decided against the defendant in his prior appeal, and he is barred from raising it again. See Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 699 (2015).³

Order denying motion for new trial affirmed.

FOOTNOTES

2.   To the extent the defendant takes issue with the judge's instructions on this element of the crime of burglary, we discern no error. The instructions were clear and correct. If the jury believed the defense witnesses, the instructions would have required an acquittal.

3.   The defendant also argues that the Department of Social Services (DSS), as it was then known, violated his due process rights by requiring Tower, the mother of the defendant's child, to obtain a restraining order against the defendant. We cannot discern how such evidence of DSS's involvement would have been relevant to or admissible in the defendant's trial or would warrant a new trial.