COMMONWEALTH v. VICK (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2010, after a jury trial in the Superior Court, the defendant was convicted of possession of a class B substance, G. L. c. 94C, § 34, and sentenced to time served. The defendant appealed, challenging the denial of his pretrial motion to suppress evidence seized as a result of the stop and subsequent searches. See Commonwealth v. Vick, 90 Mass. App. Ct. 622, 623 (2016). We concluded that the searches were proper, and affirmed the defendant's conviction. See id. at 628, 633. In 2019, the defendant filed a motion for new trial and two motions for postconviction discovery. The trial judge denied these posttrial motions. The defendant then filed a motion for reconsideration, which also was denied. We affirm.

Background.² We briefly summarize the relevant trial testimony, reserving certain facts for later discussion. Early in the evening on May 9, 2007, Boston Police Officers Cazeau and Stanford from their police car observed Anthony Cianci, a man known to them from prior drug arrests, get into the passenger's side of the defendant's car. The defendant's car was parked on a crosswalk on Tremont Street. When the car did not move from the crosswalk, Cazeau got out of the police car with the intention of ticketing it. Cazeau testified that Stanford wrote the ticket and handed it to Cazeau, who then approached the car to place the ticket on the car's windshield. As he did so, he saw the defendant in the driver's seat and Cianci in the front passenger's seat. He saw money on the center console, and noted that the defendant was reclined in the driver's seat with his jeans pulled down to just above his knee. According to Cazeau, the defendant's penis was visible. Cazeau believed that the defendant and Cianci were transacting sex for a fee. He ordered the defendant out of the car and the police pat frisked the defendant, ultimately discovering the drugs the defendant was charged with possessing.

Discussion. Motions for discovery. “The purpose of postconviction discovery is to allow a defendant to gather evidence to support ‘an apparently meritorious claim ․ [where] the evidence that can be adduced to support the claim is unknown to the court.’ ” Commonwealth v. Ware, 471 Mass. 85, 94 (2015), quoting Commonwealth v. Daniels, 445 Mass. 392, 406 (2005). “A trial judge has broad discretion in deciding whether a defendant has established a prima facie case for relief such that a postconviction discovery motion should be allowed.” Ware, supra.

After his conviction was affirmed, the defendant moved for postconviction discovery of Cazeau's personal cell phone records and of computer-aided dispatch (CAD) records documenting the time of Cianci's arrest, arguing that these records contained evidence that could impeach Cazeau's testimony about the precise time at which he arrested the defendant. In doing so, however, the defendant failed to establish that the evidence he sought in his motion was “unknown to the court,” or that it supported a meritorious claim. Ware, 471 Mass. at 94, quoting Daniels, 445 Mass. at 406. As the judge noted, at least as to the cell phone records, the defendant brought the matter to the court's attention when he attempted to obtain the discovery before trial. To the extent that his efforts were unsuccessful, he could have addressed that issue in the trial court and his first appeal, but did not do so. See generally Vick, 90 Mass. App. Ct. 622. See also Fogarty v. Commonwealth, 406 Mass. 103, 107 (1989), quoting Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973) (“ ‘[A] motion for a new trial may not be used as a vehicle to compel a trial judge to review and reconsider questions of law’ on which a defendant has had his day in an appellate court, or foregone that opportunity”). Moreover, the defendant failed to show how the records at issue would support any of his claims or defenses. The judge did not abuse her discretion in denying the defendant's motions for postconviction discovery.

Motion for new trial. A judge may, within his or her discretion, order a new trial “if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We review the denial of a motion for new trial for an abuse of discretion. See Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). Whether to hold an evidentiary hearing on a motion for new trial is likewise left to the discretion of the judge; a hearing is not required where the defendant's motion and affidavits fail to raise a “substantial issue.” Commonwealth v. Lys, 481 Mass. 1, 5-6 (2018). Appellate courts generally treat such determinations with deference. See Commonwealth v. Licata, 412 Mass. 654, 660 (1992).

We discern no abuse of discretion in the judge's denial of the defendant's motion for new trial here, or in her conclusion that the motion failed to raise a substantial issue requiring a hearing. See Lys, 481 Mass. at 5-6. The defendant's argument that the Commonwealth failed to produce evidence concerning the timing and, as between Stanford and Cazeau, the identity of the officer who issued the citation that brought the police to his car window, and that suppression of this evidence amounted to the withholding of favorable evidence in violation of the prohibitions set out in Brady v. Maryland, 373 U.S. 83, 87 (1963), was not supported by the record. Even assuming that the Commonwealth had that information and did not provide it, the defendant and the court were, as the judge observed, aware of the existence of the records before trial. Indeed, the defendant highlights the fact that he made pretrial discovery requests seeking production of the records at issue. To the extent that those efforts were unsuccessful, the defendant could have included the denial of that request in his initial appeal. However, he did not do so. See McLaughlin, 364 Mass. at 229.

Moreover, we agree with the judge that the defendant's papers failed to show that the records he sought would have been either material or exculpatory. See Commonwealth v. Caillot, 454 Mass. 245, 261-262 (2009) (to make out Brady violation, defendant must show prosecutor possessed, and failed to disclose, material information, that “tended to exculpate [the defendant]”); Commonwealth v. Ellison, 376 Mass. 1, 21 (1978) (under Brady, “suppression by the prosecution of requested material evidence which is favorable to the accused is a denial of due process”). The records that the defendant seeks would only confirm that Cazeau made a telephone call to an agent of the rental company that owned the car the defendant occupied when he was approached by the police in this case. The defendant does not satisfactorily explain how this confirmation would be exculpatory, and we can discern no basis on which it would be. The same is true for any CAD records concerning the timing of Vick's and Cianci's arrest on May 9, 2007.

We are unpersuaded by the defendant's argument that, under United States v. Cronic, 466 U.S. 648 (1984), his attorneys' failure to test the Commonwealth's case was so deficient as to justify a finding of prejudice per se. His motion for new trial, which argues ineffective assistance based on his claim that his attorneys failed to pursue Cazeau's telephone records, does not demonstrate the “complete” failure to test the government's case to which Cronic applies. Commonwealth v. Alvarez, 62 Mass. App. Ct. 866, 872 (2005), quoting Bell v. Cone, 535 U.S. 685, 697 (2002). We are no more convinced that the defendant met his burden for showing ineffective assistance of counsel under the familiar test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We are not persuaded that the defendants' attorneys fell below the standard of “an ordinary fallible lawyer” in failing to obtain Cazeau's telephone records or the CAD records that the defendant represents would provide detail about the timing of the events that culminated in his arrest. Id. Even were that not the case, the defendant failed to satisfy the second part of the Saferian test, in that he did not show that “better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

Other issues. To the extent that the defendant's appeal raises other arguments not discussed here, we have not overlooked them, but conclude that they are without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Conclusion. We affirm the order entered December 20, 2019, denying the motion for new trial and the motions for postconviction discovery, as well as the order entered January 28, 2020, denying the motion for reconsideration.

So ordered.

affirmed

FOOTNOTES

2.   The defendant has not provided us with complete transcripts of the trial, despite having been invited to request that the transcripts be transferred from his earlier appeal. As the transcripts were part of the record of the defendant's prior appeal, and the Commonwealth appears to have relied on them in formulating its argument, we nonetheless consider them.