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Appeals Court of Massachusetts.



Decided: November 10, 2021

By the Court (Wolohojian, Sullivan & Ditkoff, JJ.1)


The defendant appeals from the denial of his second motion for new trial, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), in which he argued that appellate counsel who handled the consolidated direct appeal of his convictions and the appeal from the denial of his first motion for new trial (first appeal and first appellate counsel) was ineffective.2 The defendant now argues that first appellate counsel failed to raise the issue that trial counsel was ineffective for failing to argue that the trial judge should have compelled the Commonwealth to disclose evidence that it intended to use in rebuttal should the defendant rely either on a third-party culprit defense or on a Bowden defense, see Commonwealth v. Bowden, 379 Mass. 472, 486 (1980). We affirm.

The charges stem from a shooting that occurred on the evening of January 5, 2011, in the parking lot of a restaurant. Two relevant encounters took place earlier that same day in the same parking lot. First, the defendant had been part of a group that had made fun of the victim, who was arguing with his girlfriend. As part of this encounter, the defendant and the victim exchanged words. Next, the victim had intervened in a dispute between his friend, Jeff Merrifield, and a different group of people over the sale of fake Percocet pills. The shooting took place later the same evening when the victim was changing his girlfriend's tire. The victim testified that the defendant was the person who shot him.

In his first appeal, the defendant had argued (a) that certain statements in the prosecutor's closing argument merited reversal, and (b) that the defendant's motion to dismiss the indictments should have been allowed because the prosecutor withheld exculpatory evidence from the grand jury. A different panel of this court affirmed the defendant's convictions.3 Commonwealth v. Zinov, 92 Mass. App. Ct. 1127 (2018). Four years later, the defendant filed the Rule 30 (b) new trial motion that underlies this appeal (second new trial motion), in which the defendant challenged discovery orders related to his third-party culprit and Bowden defenses.4

The defendant supported his second new trial motion with an affidavit from first appellate counsel, who averred that he failed to investigate or raise an argument that trial counsel had “felt ‘boxed in’ by the Commonwealth's failure to disclose, and the Court's failure to order, proper discovery related to rebuttal evidence the Commonwealth would offer should the defense cross-examine the lead detective.” As a result, first appellate counsel averred, he could not have properly determined whether trial counsel's “decision not to question the lead detective was either one of an ineffective defense counsel or one of mistaken strategy.”

Tellingly, the defendant's second new trial motion was not supported by an affidavit of trial counsel, which would have shed light on trial counsel's thinking, decision-making, and strategy. In the circumstances, the absence of such an affidavit is fatal because the record reflects that trial counsel in fact argued vigorously to the judge that the Commonwealth should be required to disclose the so-called rebuttal information so that he could determine whether to press forward with the third-party culprit or Bowden defenses. The judge, after permitting a voir dire examination of the detective establishing that the Commonwealth did not intend to introduce the jailhouse calls (the so-called rebuttal evidence), and after confirming with trial counsel that counsel did not want to open the door to admission of those calls, determined that no ruling on the admissibility of those calls was required (which, in any event, had already been produced to the defendant). The judge also declined to require the disclosure of any additional information from the Commonwealth. Having received the judge's ruling, trial counsel then chose not to cross-examine the detective to avoid opening the door to inculpatory evidence the Commonwealth otherwise would not introduce.

Where, as here, a claim of ineffective assistance of counsel is based on appellate counsel's failure to raise an argument in a previous appeal, the defendant has the burden of showing that he would have been successful had the issue been raised. See Commonwealth v. Butler, 464 Mass. 706, 719-720 (2013). The defendant must also show that trial counsel's tactical decision not to cross-examine the detective was manifestly unreasonable at the time it was made. See Commonwealth v. Ayala, 481 Mass. 46, 62 (2018); Commonwealth v. Alammani, 439 Mass. 605, 613 (2003). Given the absence of an affidavit from trial counsel explaining his strategic decision not to cross-examine the detective, the motion judge (who was also the trial judge) did not abuse his discretion in concluding that the defendant has not met his burden here. See Commonwealth v. Kolenovic, 471 Mass. 664, 674-675 (2015). See also Commonwealth v. Montez, 450 Mass. 736, 758 (2008). For this reason, we discern no abuse of discretion in denying the second new trial motion without an evidentiary hearing.

So much of the order dated June 15, 2020, as denied the defendant's motion to vacate conviction and for new trial is affirmed.

So ordered.



2.   The defendant's second motion for new trial was accompanied by a motion to vacate or modify his sentence pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001); the motion judge addressed both motions in a consolidated order. So much of the consolidated order as allowed the defendant's motion to vacate or modify his sentence is not before us.

3.   The defendant was convicted, after a jury trial, of armed assault with intent to murder, aggravated assault and battery with a dangerous weapon, carrying a firearm without a license, possession of a firearm in the commission of a felony, and possessing a firearm while having previously been convicted of two prior violent crimes or serious drug offenses.

4.   The motion judge, who had been the trial judge, see Commonwealth v. Scott, 467 Mass. 336, 344 (2014) (“[p]articular deference is to be paid to the rulings of a motion judge who served as the trial judge in the same case”), accurately described the defense theories at trial as follows:“Zinov's defense at trial ‘centered on the existence of dual and distinct motives for the shooting; the victim's credibility and inconsistent statements to the police; the victim's cooperation agreement with law enforcement; and the victim's failure to identify the defendant to the police until approximately eighteen months after the shooting, and while in custody after his subsequent arrest.’ ․ A key element of Zinov's defense was third party culprit, that [the victim] was shot by someone in the group of people who argued about the sale of fake Percocet and not someone in the group who had earlier laughed at him. In addition, Zinov argued a Bowden defense that the police failed to properly investigate the drug rip off confrontation involving Merrifield and its connection to the shooting.”

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