COMMONWEALTH v. JANUARIO OLIVEIRA (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this consolidated appeal from his conviction of possession of a firearm without a license and an order denying his motion for a new trial, the defendant asserts that the judge (1) improperly excused a prospective juror during empanelment, (2) erred in concluding that trial counsel was not ineffective, and (3) erred in concluding that inconsistencies between the testimony of a prosecution witness at a pretrial hearing on the defendant's motion to suppress and at trial did not warrant a new trial. We affirm, addressing each claim in turn.¹

1. Juror excusal. “A judge has broad discretion in deciding whether a prospective juror is impartial, and his decision will be reviewed only for an abuse of discretion.” Commonwealth v. Ruell, 459 Mass. 126, 136 (2011). Though the judge acknowledged in his memorandum that he “did not conduct as thorough an individual voir dire of Juror 7 as the SJC ․ advises,” the juror's responses to the judge's questions established sufficient cause for her excusal. The juror stated during voir dire that her preconceptions about racial profiling in policing would incline her to be “inherently biased to side [with] and be more empathetic towards” the defendant. Thereafter, in response to further questioning by the judge, the juror responded that, based on her perception of racial profiling she had “preconceived notions” that the gun found on the defendant would not have been visible to the officers unless they were targeting him. The judge reasoned that, in light of certain limitations on the evidence the Commonwealth would be allowed to present at trial explaining why officers were focused on the defendant's waistband, the juror would likely rely on her preconceptions about racial profiling to explain the officers' conduct. It was not an abuse of discretion for the judge to conclude that further questioning was unnecessary to establish a risk that the juror would rely on her preconceived notions rather than an impartial view of the evidence, and we discern no error in the judge's decision to excuse her.

2. Ineffective assistance of counsel. We review a judge's denial of a motion for a new trial for abuse of discretion or other error of law. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Further, “[w]e 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. Martin, 467 Mass. 291, 316 (2014). To establish a claim of ineffective assistance of counsel, a defendant must show both that trial counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and that the defendant was consequently deprived “of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A strategic or tactical decision by defense counsel will not be considered ineffective assistance unless it was “'manifestly unreasonable' when made” (citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).

The defendant asserts that trial counsel deprived him of a substantial ground of defense by failing to retain a ballistics expert and raise challenges to the chain of custody and operability of the gun produced at trial. The defendant does not establish why an expert would be necessary to develop a question concerning the chain of custody, nor does he adduce any evidence suggesting that the gun was inoperable. Further, after trial counsel reviewed the evidence from the defendant's first trial on these charges, he opted not to focus his theory of the defense on the chain of custody or operability of the gun, as he believed, in the second trial, the Commonwealth would likely close any gaps on these issues which were left open after the first trial, and instead elected to focus his defense on challenging the credibility of the police witnesses. We agree with the judge that this strategic decision was “eminently reasonable.”

Likewise, the judge appropriately determined that counsel was not ineffective for failing to object to the use of the phrase “priority one” to describe the 911 call to which the officers responded. Trial counsel made a reasonable strategic decision to introduce the entire 911 call in evidence for use in his closing argument. We discern no abuse of discretion in the judge's conclusion that the availability of the entire call, which established the reason for the officers' presence in the area, would have rendered any objection to the characterization of the call as “priority one” frivolous.

3. Inconsistent testimony. Finally, the judge did not err in rejecting the defendant's contention that differences between testimony of Officer Diamantino Araujo at trial and his testimony at the pretrial hearing on the defendant's motion to suppress warranted a new trial. Under Mass. R. Crim. P. 13 (a) (5), as appearing in 442 Mass. 1516 (2004), “[u]pon a showing that substantial justice requires, the judge ․ may permit a pretrial motion which has been heard and denied to be renewed.” “[M]inor inconsistencies in [an officer's] testimony. . . are not sufficient to support a conclusion that 'substantial justice' require[s] reconsideration of [a] motion to suppress.” Commonwealth v. Marmolejos, 35 Mass. App. Ct. 1, 3 (1993). Contrary to the defendant's contention that Officer Araujo's testimony at the hearing on his motion to suppress and at trial were materially different, the minor discrepancy as to the precise point at which Officer Araujo saw the gun tucked into the defendant's waistband before arresting him does not warrant reconsideration of the denial of the motion to suppress; under both versions of the officer's testimony the officer saw the gun in the defendant's waistband before he seized it.²

Judgment affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

1.   The defendant's letter dated September 7, 2022, purportedly filed pursuant to Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1634 (2019), improperly (i) includes three full paragraphs of argument, contrary to the limitations on such letters set forth in the rule, and (ii) has no bearing on any of the claims raised in the defendant's brief on appeal, but instead attempts to raise an entirely new claim. Accordingly, the Commonwealth's motion to strike the letter is allowed.

2.   The defendant's reliance in his brief on Commonwealth v. Cornish, 28 Mass. App. Ct. 173 (1989), is misplaced because that case is inapposite. That case involved a motion for new trial supported by evidence raising a “serious question” that a key prosecution witness had perjured himself at trial. Id. at 174.