COMMONWEALTH v. MONTEIRO (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in 2015, the defendant, Keon Monteiro, was found guilty of two counts of murder in the second degree and illegal possession of a firearm; the defendant's direct appeal from those convictions was stayed. The defendant's first motion for a new trial was denied without a hearing in 2017. The defendant did not appeal from that order but instead, a few months later, filed a second motion for a new trial, based on ineffective assistance of counsel, which was denied following an evidentiary hearing in 2019. In this consolidated appeal, from the defendant's convictions and the denial of his second motion for a new trial, we consider the defendant's arguments that the trial judge erroneously allowed the Commonwealth to admit evidence of the defendant's nickname, the trial judge erroneously admitted consciousness of guilt evidence, and that defense counsel provided ineffective assistance of counsel. Discerning no error, we affirm.

Discussion. 1. Nickname. The defendant contends the prejudicial impact of the admission into evidence of his nickname, “Killa,” substantially outweighed its probative value. While trial counsel objected during the motion in limine hearing, there was no objection during trial and therefore we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 538 (2012).² “Relevant evidence is admissible unless unduly prejudicial, and, ‘[i]n weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge's decision in this area unless it is palpably wrong.’ ” Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004), quoting Commonwealth v. Sicari, 434 Mass. 732, 752 (2001), cert. denied, 534 U.S. 1142 (2002). To establish that a judge abused his or her discretion a defendant must show that there was “a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Following the murders, the defendant twice threatened George Bryson, who was a friend of the murder victims, Victor Otoadese and Sean Repetto. The defendant asked Bryson “why [Bryson] was running around telling people that [the defendant] ․ did what he did.” The first threat occurred a few days before Otoadese's funeral, and the second occurred two weeks before Bryson testified before a grand jury. The defendant addressed himself to Bryson as “Killa” and Bryson knew the defendant by the nickname “Killa.” At the time of the first threat the defendant moved his hand to his waistline indicating he may have been carrying a concealed weapon.

The defendant also threatened Stephanie Vega, a friend of both victims, whom he had not met prior to the murders. The defendant approached Vega in a convenience store, introduced himself as “Killa,” and told her “if you keep talking, you can end up the same way like them.”

“We recognize that references to a defendant's alias (or nickname) by the prosecution can be prejudicial because ‘[a]liases can be suggestive of bad character and prior criminality, and therefore raise a possibility that the jury will improperly consider criminal propensity.’ ” Commonwealth v. Martinez, 458 Mass. 684, 697 (2011), quoting Commonwealth v. Carter, 423 Mass. 506, 514–515 (1996). However, “a prosecutor may refer to, or ask witnesses about, a defendant's nickname or alias when there is a reason to do so.” Martinez, supra at 697. Here, evidence of the defendant's nickname was relevant to his identity and to the context of the threat he intended to convey to both witnesses. Like in Martinez, where the nickname was relevant to identity, here, both witnesses testified that they knew the defendant by the nickname “Killa,” that he addressed himself as “Killa,” and, in the case of Vega, that he had specifically introduced himself to her by that name at the time he made the threat. See id. at 698. Further, the witnesses’ awareness that the defendant was known as “Killa” and the defendant's use of his nickname when he approached Vega provided context to the threats made to both witnesses. See Commonwealth v. Walters, 472 Mass. 680, 693 n.29 (2015), S.C., 479 Mass. 277 (2018) (“Where a defendant has been charged with threatening to commit a crime ․ based on an ambiguous statement or writing, we have ․ analyzed the substance of the communication as well as the surrounding context to determine whether the communication expressed an intent to harm the recipient and caused that person reasonable fear”). Additionally, the record does not support the defendant's further claim that the Commonwealth made gratuitous use of and exploited the defendant's nickname to impeach his character. The witnesses who were threatened did not overuse the nickname during their testimony. Finally, the single reference to the nickname during the prosecutor's closing argument did not constitute a substantial risk of a miscarriage of justice. Martinez, 458 Mass at 697. We determine there was no abuse of discretion in the judge's allowing the witnesses to identify the defendant by his nickname.

2. Consciousness of guilt evidence. The defendant next argues that the judge's ruling that the threats to the two witnesses were admissible as consciousness of guilt evidence was severely prejudicial, and that threats are admissible as consciousness of guilt only when they are directed at a person the defendant has a reason to believe would be a witness. Defense counsel did not object during trial to the use of the threats as consciousness of guilt evidence; therefore, we review for a substantial risk of a miscarriage of justice. See Lawton, 82 Mass. App. Ct. at 538.

“Evidence of flight, concealment, false statements to police, destruction or concealment of evidence, bribing or threatening witnesses, or similar conduct generally is admissible as some evidence of consciousness of guilt. See Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008).” Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014). “Evidence showing consciousness of guilt, such as a threat to kill a potential witness, is admissible to prove that a defendant committed the crime charged, even if it tends to indicate that the defendant committed or planned to commit another offense.” Commonwealth v. Fernandes, 427 Mass. 90, 94 (1998). Here, Bryson was a potential witness because he saw the victims get into the defendant's vehicle shortly before the time of the murders, and he observed the defendant drive in the direction of where the victims would eventually be killed. As for Vega, the defendant's threat to her was based on her Facebook posts where she implicated him as having information about the murders. It is reasonable that the defendant believed Vega could be a potential witness and therefore evidence of his threat to her is admissible. See id. It is clear based on the content of the defendant's threats that he intended to keep Bryson and Vega silent and prevent them from spreading information about the murders. Therefore, we conclude there was no error in admitting the threats as consciousness of guilt evidence.

3. Ineffective assistance of counsel. Finally, the defendant contends that trial counsel was constitutionally ineffective because (1) trial counsel's strategy was flawed because of its propensity to inculpate the defendant, and (2) a number of errors by trial counsel cumulatively deprived the defendant of effective representation. “We review a judge's denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion,’ granting ‘special deference to the rulings of a motion judge who was also the trial judge.’ ” Commonwealth v. Alcide, 472 Mass. 150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). The defendant bears the burden of demonstrating that his counsel's performance “[fell] measurably below that which might be expected from an ordinary fallible lawyer,” and that counsel's failure “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When the record demonstrates a strategic basis for counsel's course of action, we “ ‘conduct our review with some deference ․’ and ask whether the decision was manifestly unreasonable when made.” Commonwealth v. Gomes, 478 Mass. 1025, 1026 (2018), quoting Commonwealth v. LaBrie, 473 Mass. 754, 771 (2016).

The defendant first argues that trial counsel's strategy to show that every civilian witness was lying worked to inculpate the defendant rather than exculpate him. Defense counsel's strategy as it related to witness Luis Docanto was to discredit him for (1) not immediately approaching first responders after the murders, (2) to highlight his potential bias to the Commonwealth because of his interest in becoming a police officer, and (3) casting doubt on the authenticity of the note in his phone where he wrote down the partial license plate number. Trial counsel attempted to discredit Bryson based on (1) his criminal history, (2) his substance abuse, and (3) the differences in his testimony at trial and to the police and grand jury. Here, trial counsel was an experienced criminal defense lawyer who had tried hundreds of cases in Superior Court -- including eight murder trials -- and sought to undermine the Commonwealth's case by strategically attempting to discredit the testimony of critical witnesses. We conclude that his decisions were reasonable, strategic decisions and we are not persuaded by the defendant's claim that defense counsel was ineffective, where in hindsight the defense counsel's tactics merely turned out to be unsuccessful. See Commonwealth v. Kolenovic, 471 Mass. 664, 675 (2015).

The defendant also argues trial counsel's strategy was flawed because he irrationally and fatally conceded that the defendant was the user of the phone that was close in proximity to the crime scene a few minutes after the murders. However, we do not consider trial counsel's concession to be irrational since trial counsel was aware that the Commonwealth had a witness who would testify that she bought the phone for the defendant and that she had spoken to him on that cell phone twice on the day of the murders. It was not unreasonable, in light of that evidence, to concede the defendant was the user of the phone and instead to attempt to discredit the evidence by casting doubt that the defendant was at the location of the murders. See Kolenovic, 471 Mass. at 675. Therefore, trial counsel's performance did not fall measurably below that of an ordinary fallible lawyer. See Saferian, 366 Mass. at 96.

The defendant further argues that defense counsel made a number of missteps over the course of the trial that cumulatively constituted ineffective assistance of counsel. Specifically, the defendant claims, without any evidentiary support, that the Commonwealth was allowed to misstate crucial deoxyribonucleic acid (DNA) evidence when the defense counsel failed to object to a follow up question by the prosecutor to the crime laboratory witness regarding the victims’ DNA. In addition, the defendant claims that defense counsel failed to strike testimony regarding a Facebook entry; failed to object to the admission of grand jury testimony; failed to object to what one officer learned from another officer at the scene of the murder; failed to object to a witness's testimony that the defendant knew her father was a Boston police officer; and failed to object to an improper attempt to refresh a witness's recollection. Since the defendant's argument as to each of these issues was presented in a cursory and conclusory fashion, and for the most part without citation to supporting legal authority, his arguments do not rise to the level of appellate argument and need not be considered. Halstrom v. Dube, 481 Mass. 480, 483 n.8 (2019). See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Even so, after a thorough review of the record, we conclude that none of the individual instances raised here resulted in a substantial risk of a miscarriage of justice, nor did they collectively impair the defendant's rights to a fair trial and due process. We discern neither conduct by trial counsel that fell below that expected of an ordinary lawyer nor prejudice to the defendant by any such conduct. See Saferian, 366 Mass. at 93-98. Therefore, we conclude there was no error in denying the defendant's second motion for a new trial.³

Judgments affirmed.

Order entered May 3, 2019, denying second motion for new trial affirmed.

FOOTNOTES

2.   But see Commonwealth v. Grady, 474 Mass. 715, 719 (2016).

3.   “To the extent that we have not specifically addressed other points made ․ in [the] brief, they ‘have not been overlooked. We find nothing in them that requires discussion.’ ” Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).