Com. v. McGann

• Decision Date: 26 June 1985
• Citation: 477 N.E.2d 1075,20 Mass.App.Ct. 59
• Parties: COMMONWEALTH v. Michael B. McGANN.
• Court: Appeals Court of Massachusetts

Page 1075

477 N.E.2d 1075

20 Mass.App.Ct. 59

COMMONWEALTH v. Michael B. McGANN.

Appeals Court of Massachusetts Worcester.

Argued Jan. 16, 1985.

Decided May 15, 1985.

Further Appellate Review Denied

June 26, 1985.

Thomas J. Butters, Boston, for defendant.

Daniel F. Toomey, Asst. Dist. Atty., for the Com.

KASS, Justice.

Of five indictments for receiving stolen goods upon which the defendant McGann stood indicted, a jury returned verdicts of guilty on three. McGann argues nine grounds of appeal, some of which are before us on direct appeal from the judgment on the verdict and some from the denial of a motion for postconviction relief under Mass.R.Crim.P. 30, 378 Mass. 900 (1979).

What the Commonwealth's evidence described was an operation which, in outline, proceeded as follows. The defendant would buy a badly damaged vehicle from a dealer in wrecks and would, in the process, acquire a valid certificate of title and a usable vehicle identification number (VIN). At his shop in West Swanzey, New Hampshire, the defendant would replace the damaged parts from the wrecks with working parts from stolen vehicles of similar make and vintage, thus producing a saleable vehicle composed significantly from stolen parts, but with a valid vehicular pedigree, i.e., VIN and title. In an appendix to this opinion we trace the path of the six vehicles involved with the three indictments on which the jury found the defendant guilty.

1. Ineffective assistance of counsel. Appellate counsel and the defendant have compiled a formidable catalog of asserted lapses by trial counsel. It will serve no purpose to discuss them all, but a sampling will aid discussion. Preparation, appellate counsel argues, was deficient: As to a Ford pickup truck involved in the case, trial counsel failed to call four witnesses (one of whom was an associate of trial counsel) who could have supplied testimony helpful to the defense. An expert on paints should have been called. Counsel failed to press several discovery motions he had made. Counsel failed to inspect the vehicles which the Commonwealth claimed contained stolen parts. He did not interview the alleged victims. Counsel did not take steps to recover business records which McGann said public authorities had seized.

Invariably the lawyer who refights a campaign on the written record finds ways to fight it better. Indeed, it must be a smug lawyer who, upon completing a trial or an argument, does not reflect ruefully on what should have been said or done. The purpose of the right to counsel afforded by the Sixth Amendment to the United States Constitution and by art. 12 of the Declaration of Rights of the Massachusetts Constitution is, however, something less than a guarantee of a perfect defense; rather it is to insure a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 8 L.Ed.2d 674 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). Commonwealth v. Howell, 394 Mass. 654, 657, 477 N.E.2d 126 (1985). Thus, counsel's failings must be so grave, so fundamental, that "the trial cannot be relied on as having produced a just result." Strickland v. Washington, 104 S.Ct. at 2064. In evaluating trial counsel's performance, judicial scrutiny must be deferential. Id. at 2065. If the test were whether some step or omission of counsel might have affected the outcome, scarcely any conviction would avoid retrial. Id. at 2067. Compare United States v. Bosch, 584 F.2d 1113, 1121-1123 (1st Cir.1978). Conduct which falls "measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), implies either lack of preparation or manifestly unreasonable judgment, Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978), with resultant prejudice, Commonwealth v. Sellon, 380 Mass. 220, 223, 402 N.E.2d 1329 (1980), including, generally, the loss of an otherwise available and substantial ground of defense. Commonwealth v. Hamm, 19 Mass.App. 72, 76, 471 N.E.2d 416 (1984).

As we read the transcript, trial counsel mounted a reasonably prepared, aggressive, and adroit defense. His cross-examinations displayed command of salient facts in the case and study of prior testimony and statements by prosecution witnesses. We do not fault trial counsel on his election to emphasize weaknesses in the testimony of witnesses who identified car parts they had not seen for years, rather than pitching his closing speech on the defendant's lack of knowledge that those parts were stolen. Once the jury believed that parts in more than one reconstructed vehicle were stolen, it would have demanded a high order of credulity from the jurors to persuade them that the defendant had no knowledge of the origin of those parts. The defendant says his trial counsel, in connection with the identification of stolen car parts by owner witnesses, should have demanded a charge which elaborated the hazards of identification and potential for good faith error as set forth in the appendix to Commonwealth v. Rodriguez, 378 Mass. 296, 310-311, 391 N.E.2d 889 (1979). In charging the jury, the judge touched on the possibility of mistake by witnesses and, while elaboration on the subject of good faith error by witnesses would have done the defense no harm, we harbor considerable skepticism that such an instruction would have altered the outcome. Certainly, we do not think that failure to ask for a Rodriguez instruction in a situation where Rodriguez would not spring to mind--the identification dealt not with people, as in Rodriguez, but with car parts--constitutes ineffective representation.

2. Refusal to hold evidentiary hearing on defendant's rule 30 motion. Whether to hold a hearing on a motion for postconviction relief or to consider it solely on the basis of affidavits and other supporting material is a decision which rests in the sound discretion of the judge, based on a determination whether the motion and affidavits raise a substantial issue. Mass.R.Crim.P. 30(c)(3), 378 Mass. 901 (1979). Commonwealth v. Stewart, 383 Mass. 253 257, 418 N.E.2d 1219 (1981). Commonwealth v. Saarela, 15 Mass.App. 403, 406, 446 N.E.2d 97 (1983). Commonwealth v. Nicholson, 20 Mass.App. 9, 11, 477 N.E.2d 1038 (1985). The issues raised in the rule 30 motion are very much the same as those argued on direct appeal. These issues lent themselves particularly to presentation in documentary form. Successor counsel conscientiously offered a voluminous compilation of supporting material. That material, coupled with a grasp of the case which the judge had obtained from presiding at trial, provided an adequate basis from which the judge could conclude, as he did, that there was no substantial issue which required fleshing out through oral testimony.

3. Severance. Before trial, and again on the eve of trial, the defendant moved unsuccessfully for a separate trial of each indictment. Concededly, the crimes charged took place at separate times. They did, however, share common elements of proof, notably the source of the wrecks and a modus operandi. See Commonwealth v. Hoppin, 387 Mass. 25, 32-33, 438 N.E.2d 820 (1982); Commonwealth v. King, 387 Mass. 464, 471, 441 N.E.2d 248 (1982), and cases there cited; Commonwealth v. Kenneally, 10 Mass.App. 162, 180, 406 N.E.2d 714 (1980), S.C., 383 Mass. 269, 418 N.E.2d 1224, cert. denied, 454 U.S. 849, 102 S.Ct. 170, 70 L.Ed.2d 138 (1981). There were also common witnesses: Benjamin McClaren, who sold the wrecks, Trooper Rand, and F.B.I. Special Agent Ryall. Commonwealth v. Hoppin, supra at 32-33, 438 N.E.2d 820. Inevitably there is spillover from the proof of one indictment to the other, but that may be appropriate when a defendant is engaged in offenses of a common character; where the defendant is, so to speak, in the business of committing a kind of crime. See generally Smith, Criminal Practice and Procedure § 1056 (2d ed. 1983). In this case one cannot but observe that the "seepage effect" from one indictment to another must have been to some degree diluted because the jury acquitted the defendant on two of the five indictments. The joinder of the indictments for trial was consistent with the authority conferred in Mass.R.Crim.P. 9(a), 378 Mass. 859 (1979), in the case of related offenses. Contrast Commonwealth v. Blow, 362 Mass. 196, 200-201, 285 N.E.2d 400 (1972).

4. Failure to suppress evidence. Several witnesses identified as stolen from them parts of automobiles recovered from a search of McGann's place of business in New Hampshire. There was an unsuccessful effort at trial to suppress evidence flowing from that search.

(a) Probable cause for the search warrant. The affidavit made by a deputy sheriff of Cheshire County, New Hampshire, to an issuing magistrate of the Keene, New Hampshire, District Court stated that he was investigating a stolen vehicle and vehicle parts ring and spelled out in detail not only vehicles, equipment and parts for which the sheriff wished to search but stated with considerable precision where on the defendant's property those items had been seen by the informant. Even if we read out of the affidavit certain paragraphs about which a judge of the Superior Court of New Hampshire later expressed doubt, there remained sufficiently detailed information about the circumstances underlying the informant's tip, as well as information about the reliability of his previous tips in leading to seizure of stolen parts sold by McGann, to justify issuing the warrant. See Commonwealth v. Upton, 394 Mass. 363, 369-377, 476 N.E.2d 548 (1985), which restored to grace Aguilar v. Texas, 378 U.S. 108, 113-115, 84 S.Ct. 1509, 1513-1514, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 413-418, 89 S.Ct. 584, 587-590, 21 L.Ed.2d 637 (1969). The standard for evaluating probable cause under art. 14 of the Declaration of Rights is, thus, more strict than that demanded by the Fourth...