COMMONWEALTH v. ARRUDA (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his second motion for new trial, in which he alleged that he received ineffective assistance from the attorney who represented him with respect to his first motion for new trial and direct appeal from his conviction of trafficking in over 200 grams of cocaine. After review, we affirm.

Background. Pursuant to a search warrant for items related to cocaine distribution at the defendant's second floor apartment, police seized more than 200 grams of cocaine (packaged in more than seventy individual .2 gram bags), along with two scales, scissors, plastic bags, and blue latex gloves, from a trash can within the fenced-in back yard of the two-family house.² Consequently, the defendant was indicted. He later moved to suppress the evidence seized as a result of the search. The motion challenged probable cause to support the warrant, specifically the nexus between drug dealing activity and his home, as well as delay in execution. The motion was denied, and the case proceeded to jury trial, after which the defendant was convicted. The defendant thereafter appealed.

While the appeal was pending, the defendant's appellate counsel moved for a new trial on the basis of newly discovered evidence. Determining that the claimed evidence was not newly discovered, the judge denied the motion. The defendant appealed the denial of his motion for new trial, which was consolidated with his direct appeal. This court affirmed the conviction as well as the denial of the motion for new trial.³

The defendant subsequently moved, pro se, for a new trial on the basis that he received ineffective assistance from the attorney who represented him in his postconviction motion as well as on appeal (appellate counsel). His claim was that appellate counsel failed to argue (either in his first motion for new trial or on appeal) that his trial counsel was ineffective for failing to challenge the seizure of evidence from the trash can on the theory that the trash can was not located within the curtilage of his second floor apartment and therefore its search was not authorized by the warrant for the apartment. The defendant's motion was supported by the affidavit of appellate counsel, who averred that the defendant raised the curtilage issue with him but that he did not pursue it because he assumed, based on his general experience, that it was not a viable claim. The judge denied the motion without a hearing.

Discussion. On appeal, the defendant argues that the judge erred in denying his motion without a hearing because he raised a substantial issue as to ineffective assistance of counsel for appellate counsel's failure to raise the issue of curtilage. We review the denial of a motion for new trial claiming ineffective assistance of counsel by applying the familiar two-part test: (1) whether the defendant has demonstrated “serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” and (2) whether counsel's poor performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 755 (2008). “The standard for determining ineffective assistance of appellate counsel is the same standard set forth in Commonwealth v. Saferian, 366 Mass. at 96.” Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 281 (2014).

“When assessing whether appellate counsel's behavior fell below the standard of an ordinary, fallible lawyer, we focus on whether appellate counsel ‘failed to raise a significant and obvious issue ․ which ․ may have resulted in a reversal of the conviction, or an order for a new trial” (citation omitted). Aspen, 85 Mass. App. Ct. at 282. “The failure of counsel to litigate a viable claim of an illegal search and seizure is a denial of the defendant's Federal and State constitutional right to the effective assistance of counsel.” Commonwealth v. Henderson, 486 Mass. 296, 302 (2020), quoting Commonwealth v. Comita, 441 Mass. 86, 90 (2004). “To prevail on an ineffective assistance of counsel claim on this basis, a defendant is required to demonstrate the existence of a viable claim and a likelihood of success on the merits if a motion to suppress had been filed.” Id. See Comita, supra at 91.

Here, the defendant failed to show in his second motion for new trial that he would have prevailed in his motion to suppress evidence had the curtilage issue been raised. “ ‘The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.’ United States v. Dunn, 480 U.S. 294, 300 (1987). It has since been applied to define those areas associated with a dwelling house that the police may not search without a warrant. Commonwealth v. McCarthy, [428 Mass. 871,] 873-874 [(1999)]. In a ‘unique twist in the law,’ United States v. Stanley, 597 F.2d 866, 870 (4th Cir. 1979), ‘[i]n the present context ․ curtilage serves a different function -- it helps define where the police can search pursuant to a warrant.’ Commonwealth v. McCarthy, supra at 874.” Commonwealth v. Fernandez, 458 Mass. 137, 142 n.10 (2010).

In determining whether, in the multifamily home and apartment context, a particularly described area is curtilage, a four-factor test is applied. See Commonwealth v. Leslie, 477 Mass. 48, 55 (2017). That test looks to (i) “the proximity of the area claimed to be curtilage to the home”; (ii) “whether the area is included within an enclosure surrounding the home”; (iii) “the nature of the uses to which the area is put”; and (iv) “the steps taken by the resident to protect the area from observation by people passing by.” Id., quoting Dunn, 480 U.S. at 301. Here, the record reflects ⁴ that the trash can was in the back yard, alongside a ramp that leads to the door used to access the defendant's second floor apartment. The can was lined up with several other trash cans, undifferentiated by any designation of connection to a particular apartment. Further, the yard area where the trash can was located was enclosed by a fence. The defendant parked his car in the yard, within the fenced-in area. Thus, by all indications, the trash can was within an area “so intimately tied to the [defendant's apartment home] itself that it should be placed under the home's ‘umbrella’ of Fourth Amendment protection.” Id., quoting Dunn supra. In other words, it was within the curtilage.

The defendant argues that because his residence was a second floor apartment, he had exclusive control only as to his apartment, and that as a result, any area outside of his apartment could not be considered curtilage to his apartment. He further argues that, because he and his mother, the first floor resident, had shared access to the yard, police were required to get the consent of either him or his mother in order to search the trash cans. But exclusive control does not define curtilage. See Leslie, 477 Mass. at 54 (“we reject the Commonwealth's argument that in cases involving a search in a multifamily home, the validity of the search turns on the defendant's exclusive control ․ in the area searched”). A shared common area can very well constitute curtilage of multiple units within a building. See Commonwealth v. Pierre, 71 Mass. App. Ct. 58, 62-63 (2008) (basement, with unrestricted access, within curtilage of second floor apartment). See also Leslie, supra (porch and side yard of three-family house within curtilage of entire house).

As the trash can was located within the fenced-in back yard of the defendant's apartment building (and the yard was used by the defendant to store his car, among other things), it was within the curtilage of the defendant's apartment, and the police were not required to obtain consent to search the trash can. It follows that, had the issue of curtilage been raised, it would not have succeeded. Appellate counsel was therefore not ineffective for failing to raise the issue in the postconviction motion and appeal. See Breese v. Commonwealth, 415 Mass. 249, 256 (1993) (“[a]ppellate counsel was not ineffective for choosing to forgo a meritless argument”). The defendant raised no substantial issue requiring an evidentiary hearing. See Commonwealth v. Vaughn, 471 Mass. 398, 404-405 (2015) (no hearing required on motion for new trial unless substantial issue raised).

Order denying second motion for new trial affirmed.

FOOTNOTES

2.   Additionally, from inside the defendant's apartment, police seized $6,000 in cash, and boxes of plastic bags and blue latex gloves.

3.   See Commonwealth v. Arruda, 99 Mass. App. Ct. 1126 (2021).

4.   A single judge presided over the defendant's pretrial motion to suppress, jury trial, and both motions for new trial. As a result, she would have been aware of the record evidence when considering the defendant's second motion for new trial.