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Appeals Court of Massachusetts.



Decided: March 16, 2021

By the Court (Green, C.J., Meade & Rubin, JJ.1)


Following a jury trial, the defendant was convicted of armed robbery, assault and battery on a police officer, and threatening to commit a crime in violation of G. L. c. 275, § 2. The defendant filed a motion for a new trial, which was denied following a nonevidentiary hearing. On appeal from the denial of that motion,2 the defendant argues that trial counsel was ineffective in (1) failing to suppress two out-of-court identifications that were obtained through unnecessarily suggestive showup procedures; (2) failing to object to the introduction of in-court identifications from two eyewitnesses, given the Commonwealth's failure to file a motion in limine; (3) failing to suppress the entire video surveillance footage of the crime scene, given CVS's negligence in losing portions of such footage; and (4) representing the defendant despite a direct conflict of interest arising from the defendant filing multiple complaints against his counsel with the Board of Bar Overseers (BBO). We affirm.

1. Standard of review. We review a ruling on a motion for new trial under Mass. R. Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), for an abuse of discretion, and the motion judge's decision “will not be reversed unless it is manifestly unjust.” Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020), quoting Commonwealth v. Gorham, 472 Mass. 112, 117 (2015). Where such a motion is filed based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant. See Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015). “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that his counsel's behavior fell measurably below that of an ordinary fallible lawyer and that he was prejudiced as a result.” Commonwealth v. Domino, 465 Mass. 569, 577 (2013), citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2. Out-of-court identifications. The defendant claims that trial counsel's failure to suppress the unduly suggestive out-of-court identifications from two eyewitnesses constitutes ineffective assistance of counsel. A showup identification may be unnecessarily suggestive (1) where there was not good reason for the showup procedure, or (2) where “the identification procedure so needlessly adds to the suggestiveness ․ such that it is ‘conducive to irreparable mistaken identification.’ ” Commonwealth v. Crayton, 470 Mass 228, 235-236 (2014), quoting Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014). However, the burden is on the defendant to make such a showing by a preponderance of the evidence. See Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006). The defendant claims that the police's decision to place his Yankees hat on him during the showup identification procedure involving Green rendered the procedure unnecessarily suggestive and counsel was ineffective for not moving to suppress the identification or object to its introduction in evidence. We disagree.3

After the initial showup procedure, where Green stated he was eighty-five to ninety percent certain that the defendant was the perpetrator, the police placed his Yankees hat on him, and Green then stated he was ninety-five percent sure that the defendant was the perpetrator. While we certainly do not encourage such a procedure, we do not need to decide whether it rendered the showup procedure unnecessarily suggestive because the defendant failed to establish prejudice.4

There was no dispute that the Yankees hat belonged to the defendant, nor was there a dispute that he was wearing the hat at CVS during the night of the armed robbery. The defendant himself testified to these facts. In these circumstances, even if the defendant had satisfied his burden of proving that the showup procedure was unnecessarily suggestive, he has not shown prejudice from counsel's failure to object to the introduction of the identification. The defendant does not dispute that he was at the CVS on the night of the armed robbery, nor does he dispute that the CVS surveillance footage shows him, with his distinctive neck tattoo, wearing the very same clothes as the perpetrator. Therefore, where there was independent evidence identifying the defendant, and placing him at the CVS on the night of the armed robbery dressed in the very clothes worn by the perpetrator, and where identification was not a contested issue at trial, we see no prejudice in the failure to seek suppression of the showup identification procedures. See Domino, 465 Mass. at 577.5

3. In-court identifications. The defendant also claims that the introduction of the in-court identifications by Brown and Green were improper under Crayton, 470 Mass. at 235-236, given the Commonwealth's failure to file a motion in limine prior to their admission. We disagree.

In Crayton, the Supreme Judicial Court held that the burden is on the prosecutor to move in limine to admit an in-court identification by a witness where there has been no prior out-of-court identification. See Crayton, 470 Mass. at 243. “[T]he in-court identification is treated as an in-court showup,” and is only admitted “where there is ‘good reason’ for its admission.” Id. at 241. The court extended this rule in Commonwealth v. Collins to situations “where an eyewitness did participate before trial in a nonsuggestive identification procedure and made something less than an unequivocal positive identification of the defendant.” Commonwealth v. Collins, 470 Mass. 255, 262 (2014).

Here, as explained above, both Brown and Green participated in nonsuggestive showup procedures prior to trial. Furthermore, Brown stated during the showup procedure that she was “100 percent” certain that the defendant was the person who committed the armed robbery. Given her level of certainty, Brown's positive identification of the defendant was unequivocal, and therefore, the Commonwealth need not have filed a motion in limine to admit her in-court identification of the defendant. See Crayton, 470 Mass. at 244.

Green, however, initially stated he was only eighty-five percent certain that the defendant was the perpetrator. He later stated that he was ninety-five percent certain the defendant was the perpetrator once the defendant was wearing his hat. The defendant claims that Green's positive out-of-court identification was not unequivocal, and as such, the Commonwealth was required to file a motion in limine to admit Green's in-court identification of the defendant. We disagree. See Commonwealth v. Collins, 92 Mass. App. Ct. 395, 398 (2017) (words used by eyewitness during positive identification not necessarily determinative of whether identification is unequivocal). However, even if Green's identification was not unequivocal, and the Commonwealth was in fact required to file a motion in limine under the rule in Collins, for the reasons discussed above, the defendant has failed to make any showing of prejudice from counsel's failure to object to the admission of the identification. Without such proof of prejudice, the defendant cannot establish that he received ineffective assistance of counsel. See Domino, 465 Mass. at 577.

4. CVS surveillance footage. The defendant further claims that counsel's failure to seek any remedy for the lost CVS surveillance footage constituted ineffective assistance of counsel. In particular, the defendant claims counsel erred in failing to object to the admission of testimony about the contents of the missing surveillance footage and should have then sought to suppress the remaining portions of the surviving surveillance footage. We disagree.

“A defendant who seeks relief from the loss of potentially exculpatory evidence has the initial burden” of establishing “a ‘reasonable probability, based on concrete evidence rather than a fertile imagination,’ ” that such evidence would be exculpatory. Commonwealth v. Cintron, 438 Mass. 779, 784 (2003), quoting Commonwealth v. Neal, 392 Mass. 1, 12 (1984). Assuming the defendant is able to meet this initial burden, we then balance “the culpability of the Commonwealth, the materiality of the evidence, and the potential prejudice to the defendant” to determine if the defendant is entitled to relief from such lost evidence. Cintron, supra, quoting Commonwealth v. Willie, 400 Mass. 427, 432 (1987).

Here, the defendant has not shown that the lost video would have produced evidence favorable to his defense. Rather, he relies on mere speculation that there is a possibility that the lost surveillance footage from CVS would be exculpatory, despite the witnesses offered by the Commonwealth, who instead testified that the lost surveillance footage undisputedly corroborated the eyewitness account from Brown. At bottom, without any concrete evidence to show the lost surveillance footage was in fact exculpatory, the defendant has not met his initial burden.6 See Commonwealth v. Meas, 467 Mass. 434, 448 (2014) (defendant failed to show exculpatory nature of lost videotape where claim was predicated on fairly speculative assertions, and not equivalent of concrete evidence). As such, the defendant cannot establish that he was deprived of “an otherwise available, substantial ground of defence.” Saferian, 366 Mass. at 96.

5. Conflict of interest. Finally, the defendant claims he was deprived of effective assistance of counsel as a result of the multiple BBO complaints he filed against his counsel, which created a conflict of interest. We disagree.

A defendant is entitled to effective assistance of counsel under art. 12 of the Massachusetts Declaration of Rights, which includes the “right to the full and undivided loyalty of his attorney.” Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). This right includes assistance from counsel “free from any conflict of interest.” Id. A defendant who establishes an actual conflict of interest is entitled to a new trial without a showing of prejudice. See Commonwealth v. Cousin, 478 Mass. 608, 616 (2018). “An ‘actual’ or ‘genuine’ conflict of interest exists where the ‘independent professional judgment of trial counsel is impaired, either by his own interests, or by the interests of another client.’ ” Id. at 616-617, quoting Shaiar, supra. To determine whether an actual conflict of interest exists, we look to the rules of professional conduct. See Cousin, supra at 617.

Here, the defendant relies upon Mass. R. Prof. C. 1.7(a) (2), as appearing in 471 Mass. 1335 (2015), to argue that trial counsel operated under an actual conflict of interest. However, the defendant has failed to explain the precise character of the alleged conflict of interest. He cites no facts to demonstrate that the BBO complaints posed a significant risk that trial counsel's representation of the defendant would be materially limited by his own personal interest.7 Therefore, given the absence of any concrete evidence to prove the existence and precise character of an actual conflict of interest, we find no error in the motion judge's dismissal of the defendant's motion for a new trial. See Commonwealth v. Soffen, 377 Mass. 433, 437-439 (1979) (defendant bears burden of proving both existence and precise character of conflict of interest without relying upon speculation).

Order denying motion for new trial affirmed.


2.   The defendant's direct appeal was dismissed for lack of prosecution.

3.   The defendant also contends, without citation to the record, that an expert psychologist explained that dressing a suspect in clothing similar to that described by the victim increases the likelihood of a false identification, particularly where the clothing at issue involves a hat. Without citations to the record, the argument is waived. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019).

4.   We also agree with the motion judge that there existed “good reason” for the police to conduct showup identifications, where both showup procedures occurred within a few hours of the crime, while the witnesses’ memories were still fresh, and while the perpetrator of a violent crime was still at large. See Crayton, 470 Mass. at 235-236. Furthermore, prior to the showup procedure involving Green, the police gave proper warnings to Green that the individual in custody may or may not have been the perpetrator, and that the investigation would continue if Green stated that the individual was not in fact the person who committed the armed robbery. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009) (proper police procedure includes giving warnings that showup procedure may not necessarily reveal person who committed crime).

5.   The defendant also challenges the showup procedure surrounding the identification made by Brown. Without any citation to the record, the defendant claims that the police intentionally dressed him in a shirt similar to that of the perpetrator, rendering the showup procedure unnecessarily suggestive. In this posture, given counsel's failure to provide record support for this assertion, the claim does not constitute an appellate argument, and it is waived. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). In any event, the defendant also misstates the record by claiming that the shirt did not belong to him. Indeed, the defendant himself testified that he was wearing the shirt described in Brown's showup when police arrived at the scene of his arrest and described it as “my shirt.” Furthermore, Brown testified that the defendant can be seen wearing this shirt in the surveillance footage of the CVS entrance on the night of the armed robbery. Given the lack of any evidence whatsoever that the police intentionally dressed the defendant in a shirt similar to that of the perpetrator, the defendant has not met his burden of proving that the showup procedure involving Brown was unnecessarily suggestive. See Martin, 447 Mass. at 279-280.

6.   The motion judge found no culpability on the part of the Commonwealth, as it was the negligence of CVS that caused the loss of the surveillance footage. Furthermore, the defendant has been unable to demonstrate prejudice, given the strong evidence against him. Therefore, even if the defendant had met his initial burden, the balancing test does not favor his request for relief from the lost evidence. See Commonwealth v. Meas, 467 Mass. 434, 448 (2014) (without showing prejudice, balancing test did not favor defendant's claim for relief from lost evidence).

7.   The motion judge properly determined that the defendant failed to show either (1) how counsel's interests were not in alignment with those of the defendant, or (2) how the BBO complaints would cause counsel to provide anything but zealous defense of the defendant.

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