Com. v. Delong

• Decision Date: 13 June 2008
• Docket Number: No. 06-P-1164.,06-P-1164.
• Parties: COMMONWEALTH v. Joseph DELONG.
• Court: Appeals Court of Massachusetts

888 N.E.2d 956

72 Mass. App. Ct. 42

COMMONWEALTH v. Joseph DELONG.

No. 06-P-1164.

Appeals Court of Massachusetts, Suffolk.

Argued January 3, 2008.

Decided June 13, 2008.

Kathleen M. McCarthy for the defendant.

Nicole Rimar (Carina R. Canaan, Assistant District Attorney, with her) for the Commonwealth.

Present: DUFFLY, GRASSO, & COWIN, JJ.¹

COWIN, J.

The defendant, Joseph Delong, was convicted of armed robbery by a Superior Court jury following the theft of $4,500 from Shaw's Supermarket in the Brighton section of Boston. He filed a notice of appeal and then a motion for a new trial. His motion was denied by the trial judge, and he appealed also from that order. We consolidated the appeals and affirmed both the judgment of conviction and the denial of the motion for a new trial. See Commonwealth v. Delong, 60 Mass.App.Ct. 528, 803 N.E.2d 1274 (2004).

The defendant thereafter filed a second motion for a new trial, which was denied by the trial judge without a hearing. The judge based her decision in part on waiver (i.e., that the issues either had been, or could have been, advanced previously), and in part on a determination that "[t]here was no ineffective assistance of appellate counsel in light of the overwhelming evidence on the sole issue raised by the defendant—misidentification." In his appeal from this order, the defendant, by counsel, asserts error in two respects: (1) that evidence that he was identified by a nontestifying witness violated his constitutional right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and (2) that it was ineffective assistance on the part of his trial counsel not to object to the admission of that identification or to the omission from the judge's jury charge of an "honest but mistaken" instruction regarding identification as set forth in Commonwealth v. Pressley, 390 Mass. 617, 619-620, 457 N.E.2d 1119 (1983). The defendant has submitted a separate brief pro se in which he reiterates the above claims and asserts others not addressed by his counsel. We consider the various claims of error individually below, including necessary facts in relation to each subject,² and affirm the order denying the defendant's second motion for a new trial.

1. Right of confrontation. The robbery in question took place on January 17, 1998. As the judge observed, the defense was that the defendant had been mistakenly identified as the perpetrator. On January 19, 1998, Detective Paul Mahoney of the Boston police department displayed a photographic array containing a photograph of the defendant to four employees of Shaw's Supermarket who were present at the Brighton store during the robbery (specifically, Kevin Beaton, Richard LaMonica, Aleika Lewis, and Angela Wilson). In direct testimony, Mahoney stated that each of the four had identified the defendant as the perpetrator from the array. While Beaton, LaMonica, and Lewis testified and generally corroborated Mahoney's testimony with respect to their out-of-court identifications of the defendant, Wilson did not testify. The defendant, acknowledging the absence of an objection to Mahoney's testimony on the subject, argues that it was error to admit Mahoney's reference to Wilson's identification in these circumstances, and that the error created a substantial risk of a miscarriage of justice because of the denial of the right of confrontation as set forth in Crawford v. Washington, supra.

The United States Supreme Court rendered its decision in Crawford after we disposed of the direct appeal in this case. Consequently, the decision does not apply to this conviction, at least as the product of any Federal constitutional requirement. See Whorton v. Bockting, ___ U.S. ___, ___, ___-___, 127 S.Ct. 1173, 1177, 1181-1184, 167 L.Ed.2d 1 (2007). While a State may choose to apply the Crawford principle retroactively under its own law, see Danforth v. Minnesota, ___ U.S. ___, ___-___, 128 S.Ct. 1029, 1041-1042, 169 L.Ed.2d 859 (2008), there has been no indication to date that this is a view that the Supreme Judicial Court is likely to adopt.

Be that as it may, the defendant has a reasonable basis for complaint because, irrespective of Crawford, Mahoney's testimony that Wilson made an out-of-court identification of the defendant should not have been admitted. Indeed, the Commonwealth concedes as much. An observer of an out-of-court identification may testify thereto, and such testimony may be received for substantive purposes, if the identifying declarant testifies at trial. See Commonwealth v. Cong Duc Le, 444 Mass. 431, 436-437, 828 N.E.2d 501 (2005).³ This rule of evidence is not in conflict with the confrontation clause of the United States Constitution. See United States v. Owens, 484 U.S. 554, 559-563, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). If, however, the declarant does not testify, the out-of-court statement is inadmissible for substantive purposes under traditional hearsay rules.

The question then becomes whether the defendant was harmed by the error. In the absence of an objection, we review to determine whether there is a substantial risk of a miscarriage of justice, see Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967), meaning that "we are left with uncertainty that the defendant's guilt has been fairly adjudicated." Commonwealth v. Randolph, 438 Mass. 290, 294-295, 780 N.E.2d 58 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002). We are certain that, given the remainder of the testimony, the erroneously admitted evidence made no difference in the outcome.

As indicated, Beaton, LaMonica, and Lewis testified at trial and acknowledged that they had made the out-of-court identifications of the defendant to which Mahoney testified. Each of them had interacted with the perpetrator on the occasion of the robbery to a greater extent than had Wilson. Each independently described the perpetrator in similar terms and in material respects, including the gaps in his teeth, dark clothing, sunglasses, and green hooded sweatshirt. There was in addition testimony by two other witnesses who had identified the defendant from a photographic array in connection with similar armed robberies perpetrated earlier at Shaw's Supermarket stores in Newton.⁴ By contrast, Mahoney's statements at trial regarding Wilson's identification were minimal, coming essentially by means of his lumping together Wilson's identification with those of the other three.⁵

The challenged testimony consisted of three fleeting references made over the course of a four-day trial in which there was substantial evidence of guilt. Where that evidence fully supported the verdict, the improper testimony did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Rebello, 450 Mass. 118, 129, 876 N.E.2d 851 (2007). Contrary to the defendant's contention, cross-examination did not expose such weaknesses in the witnesses' testimony that the inadmissible evidence could reasonably be viewed as having made a material contribution to persuading the jury to return a guilty verdict. In any event, "[t]he mistaken admission of hearsay evidence, if merely cumulative of another witness's testimony, does not constitute reversible error," Commonwealth v. O'Connor, 407 Mass. 663, 670, 555 N.E.2d 865 (1990), and it follows that it clearly does not establish the existence of a substantial risk of a miscarriage of justice.

2. Ineffective assistance of counsel. We apply to the defendant's contentions the standards applicable to a claim of ineffective assistance of counsel, which standards do not require repeating. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). If an alleged tactical error of counsel is at issue, the defendant must demonstrate that counsel's tactical judgment was "manifestly unreasonable." Commonwealth v. Stuckich, 450 Mass. 449, 461, 879 N.E.2d 105 (2008), quoting from Commonwealth v. Finstein, 426 Mass. 200, 203, 687 N.E.2d 638 (1997). Whatever the defendant's theory, it is his burden to demonstrate that counsel has been ineffective in the sense set forth in Saferian, supra. See Commonwealth v. Comita, 441 Mass. 86, 90, 803 N.E.2d 700 (2004). The defendant has not persuaded us that he has been a victim of ineffective assistance of counsel in any respect.

The defendant's first objection to his counsel's performance is that counsel failed to object to Mahoney's testimony regarding Wilson's out-of-court identification. This assertion essentially recycles his argument, disposed of above, that there was a substantial risk of a miscarriage of justice by virtue of a denial of his right of confrontation. We pass the very real possibility that counsel, prepared to attack the identifications of the three witnesses who did testify, chose not to call special attention to the out-of-court observer by objecting to the brief references to the hearsay. Such a tactic cannot be said to be manifestly unreasonable in the context of the case. See Commonwealth v. Beliard, 443 Mass. 79, 88-89, 819 N.E.2d 556 (2004). Even were it otherwise, we have concluded that the outcome of the case could not have been affected by admission of the hearsay. It follows, therefore, that ineffective assistance has not been shown given that counsel's decision did not "likely deprive[ ] the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. at 96, 315 N.E.2d 878.

We turn to the defendant's claim that his counsel was constitutionally ineffective for failing to object to the judge's omission in the jury charge of an instruction regarding the possibility of an "honest but mistaken" identification by the identifying witnesses. See Commonwealth v. Pressley, 390 Mass. at 619-620, 457 N.E.2d 1119. Defense counsel in fact requested such an instruction, proposing that the judge charge, in relevant part, that "[y]ou (the jury) must also...