Com. v. Montanez

• Decision Date: 30 May 1991
• Citation: 571 N.E.2d 1372,410 Mass. 290
• Parties: COMMONWEALTH v. Rufino MONTANEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1372

571 N.E.2d 1372

410 Mass. 290

COMMONWEALTH v. Rufino MONTANEZ.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Feb. 7, 1991.

Decided May 30, 1991.

Neila J. Straub, Malden, for defendant.

Michael Fabbri, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LYNCH, Justice.

The defendant, Rufino Montanez, was convicted of distribution of cocaine (second offense) and trafficking in cocaine in violation of G.L. c. 94C, §§ 32A (b ), 32E (b )(2) (1988 ed.). ¹ The judge sentenced him to from nine to ten years on the distribution charge and from fourteen to fifteen years on the trafficking charge, the sentences to be served consecutively at the Massachusetts Correctional Institution at Cedar Junction. The defendant appealed, arguing that the judge erred in: (1) denying his motion for a new trial on the ground of ineffective assistance of counsel; (2) denying his motion to suppress certain evidence; (3) denying his motion to sever the two charges for separate trials; and (4) denying his motion for a required finding of not guilty on the trafficking charge. We transferred the case to this court on our own motion, and we now affirm.

The jury could have found the following facts from the evidence at trial. On February 6, 1988, the defendant sold three and one-half grams of cocaine to an undercover police officer at the defendant's Woburn apartment. For the following four months, police maintained continuous surveillance of the defendant as part of an ongoing drug investigation in the area. During this period the police noted that, when the defendant was at his apartment in the evening, a lighted lamp would be set in a certain second-floor window (though this window was not in the defendant's apartment), the defendant's black Lincoln Continental automobile would be parked outside, and foot and automobile traffic to and from the rear entrance of the apartment building would increase.

On June 3, 1988, the police obtained a search warrant authorizing a search of the defendant's apartment. The affidavit in support of the application for the warrant described the undercover purchase of February 6, 1988, and the observations gathered in the subsequent surveillance of the defendant. In addition, the affidavit included information provided by two confidential informants. The first informant stated that he had seen the defendant sell cocaine to others on four separate occasions, and that he had personally purchased cocaine from the defendant in May of 1988. All of these sales took place in the defendant's apartment. The second informant, according to the affidavit, also said that he had seen the defendant sell cocaine from his apartment, and added that "the way to know if Montanez is [doing] business is if the Black Lincoln [Continental] is outside the building" and "the window curtain is pulled back and a lamp is in the window."

The warrant was executed on the evening of June 3, 1988. As police entered the hallway leading to the defendant's second-floor apartment, the defendant poked his head out of the apartment door a number of times. When the defendant then came out into the hallway, the police ordered him to lie prone on the staircase landing outside the apartment. The defendant was arrested, and a search of his person revealed $1,406 in cash. Inside the apartment, the police found a flare gun and flares, a telephone tap detector, and several empty, plastic-coated paper folds of a type used in the drug trade to package small amounts of cocaine for sale. In addition, an officer moved a tile in the dropped ceiling directly outside and above the door to the defendant's apartment. Sliding the hallway ceiling tile aside, the officer discovered three plastic bags. The first plastic bag contained a powder that proved to be nearly-pure cocaine, ² the second contained a nonnarcotic white powder commonly used to dilute cocaine, and the third contained five or six paper folds, each of which in turn contained approximately one-half gram of cocaine.

On April 5, 1989, the evening before trial was to begin, the defendant, trailed by a Woburn police officer, went to an airline terminal at Logan International Airport in Boston. There the officer approached the defendant, who was standing with a brown suitcase at the ticket counter. The clerk at the counter gave the officer the ticket that he was processing at the time, a one-way ticket to Puerto Rico issued in the name Rafael Lindt. The flight was scheduled to leave that night. The officer observed various articles of men's clothing in the brown suitcase when a woman accompanying the defendant opened it to remove certain items. The officer arrested the defendant, placed the suitcase in the police cruiser, and left with the defendant and the woman. The suitcase was admitted in evidence over the defendant's objection.

1. Ineffective assistance of counsel. The defendant claims that the judge improperly denied his motion for a new trial based on ineffective assistance of counsel. He points to three purported shortcomings in his attorney's performance: (1) counsel's failure to investigate a simultaneous search of another resident of the defendant's apartment building; (2) counsel's failure to seek suppression of the brown suitcase seized at the airport; and (3) counsel's failure to present mitigating factors at sentencing and to request concurrent sentences. We reject the first two claims on procedural and substantive grounds, and the third on procedural grounds only.

The defendant's claims of ineffective assistance are barred as a procedural matter because the defendant failed to raise these arguments in a timely fashion. ³ A procedural chronology is in order. Several months after his trial, the defendant moved for a new trial, pursuant to Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), on the ground of ineffective assistance. The motion was denied on April 2, 1990. The defendant moved for reconsideration of the motion for a new trial on May 8, 1990. The motion for reconsideration was denied on May 14, 1990. The defendant then appealed both rulings on June 7, 1990.

Upon the denial of the motion for a new trial on April 2, the defendant was permitted thirty days to file either an appeal, Mass.R.A.P. 4(b), as amended, 378 Mass. 928 (1979), or a motion for reconsideration. Commonwealth v. Cronk, 396 Mass. 194, 197, 484 N.E.2d 1330 (1985). ⁴ The defendant filed his motion for reconsideration thirty-six days later, on May 8, and his appeal more than sixty days later, on June 7. In addition, the defendant has made no showing of "good cause" that might justify our extending the thirty-day deadline. Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). Thus, the defendant's motion for reconsideration and his appeal from the denial of the motion for a new trial are time barred. ⁵

Nevertheless, we address the merits of the defendant's claims. We discuss the first claim because we reject it for substantive as well as procedural reasons. In addition, we note that the defendant raises the second and third claims for the first time on this appeal. Because these claims have not been adjudicated, the trial judge may consider them on a second motion for a new trial or resentencing under Mass.R.Crim.P. 30(b). Therefore, we express our view of the second and third claims, although they are not properly before this court, in order to guide the trial judge should the defendant elect to raise them again in a rule 30(b) motion for postconviction relief. ⁶

The standards governing claims of ineffective assistance of counsel are well established. The defendant must demonstrate that his attorney's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and that counsel's conduct "has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). See Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977) (requiring a "showing that better work might have accomplished something material for the defense"). Where the defendant challenges counsel's tactical or strategic decisions, he must establish that such decisions are not merely unreasonable, but "manifestly unreasonable," Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978), in order that we may "avoid characterizing as unreasonable a defense that was merely unsuccessful." Commonwealth v. White, 409 Mass. 266, 272, 565 N.E.2d 1185 (1991). ⁷ The defendant's claims do not meet these tests.

The defendant argues, first, that counsel's failure to investigate the arrest of one of the defendant's neighbors constituted ineffective assistance. Simultaneous with the search of the defendant's second-floor apartment, the police, pursuant to a warrant, conducted a search of a third-floor apartment in the same building. The search revealed cocaine, and the neighbor was arrested. The defendant claims that he informed his lawyer of these facts, but that his lawyer failed to investigate the lead further. Noting that the neighbor also had access to the ceiling in the common hallway on the second floor, the defendant suggests that counsel's omission constitutes ineffective assistance in that it deprived him of the defense that the cocaine hidden in the ceiling belonged not to the defendant, but to the neighbor. We disagree.

If we assume for purposes of analysis that counsel's decision not to investigate the neighbor's arrest was "manifestly unreasonable" (though we do not so decide), the defendant clearly was not prejudiced thereby. The defendant suggests that, had counsel obtained the affidavit and return attached to the warrant authorizing the search of the neighbor's apartment, he would have learned that the neighbor was also known to sell cocaine and that cocaine packaged in paper folds was found in the neighbor's apartment....