Commonwealth v. Ferreira

• Decision Date: 28 June 2022
• Docket Number: 19-P-1570
• Parties: COMMONWEALTH v. RAUL FERREIRA.
• Court: Appeals Court of Massachusetts

COMMONWEALTH v. RAUL FERREIRA.

No. 19-P-1570

Appeals Court of Massachusetts

June 28, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Juvenile Court, the defendant was convicted of assault with intent to murder and assault and battery by means of a dangerous weapon.^[1] Approximately two years later, the defendant filed a motion for new trial without supporting affidavits.^[2] After a nonevidentiary hearing the motion was denied. The defendant subsequently filed a motion for reconsideration that was denied. On appeal, the defendant claims that his trial counsel was ineffective. We affirm.

Background.

The jury could have found the following facts. On January 4, 2015, at approximately midnight, S.T. walked to a store to buy cigarettes. When she arrived, the store was closed. As she walked on North Main Street in Brockton, S.T. noticed the defendant walking behind her. She stopped to allow him to pass. S.T. next saw the defendant standing by the side of a building crying. She asked him what he was doing, and the defendant said that he was upset because he had an argument with his mother.^[3] The defendant said that he was walking to a relative's home on Lansdowne Street.

The defendant and S.T. walked together. As they approached Lansdowne Street, the defendant "propositioned" S.T. for sex in exchange for money. S.T. said no, and told the defendant that that he was too young, and that he could find a girl his age. The defendant laughed and became quiet. The defendant then grabbed S.T. from behind by her neck and tried to unbutton her pants. He told S.T. that she "should've took the money and he wouldn't have to take . . . [her] pussy." The defendant tried to take S.T's shirt off and grab her breasts. He also hit S.T. on the side of her forehead. S.T. elbowed the defendant and freed herself. As S.T. turned to run away, the defendant stabbed her in the back five times, three times on the right side and twice on the left side, before fleeing. Two people heard S.T. scream, and called 911. S.T. gave the police a physical description of the defendant, whom she later identified in a photographic array. S.T. was transported to Brockton Hospital where she underwent surgery.

Discussion.

The defendant contends that the judge abused her discretion by denying his motion for a new trial without an evidentiary hearing. "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974).

Because the motion judge was also the trial judge for both trials, we give "special deference" to her views of trial counsel's performance. Commonwealth v. Barnett, 482 Mass. 632, 638 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See Commonwealth v. Sin, 100 Mass.App.Ct. 172, 177 (2021). Strategic decisions by counsel are not ineffective assistance unless they were "manifestly unreasonable when made" (quotation omitted) . Id. at 178. A judge may decide a motion for a new trial without an evidentiary hearing "if no substantial issue is raised by the motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011). Rule 30 (c) (3) "encourages the denial of a motion for a new trial on the papers, without hearing, where no substantial issue is raised." Commonwealth v. Gordon, 82 Mass.App.Ct. 389, 394 (2012). "'Although the motions and supporting materials filed by a defendant need not prove the issue raised therein, they must at least contain sufficient credible information to cast doubt on the issue' in order to create a substantial issue." Commonwealth v. Barry, 481 Mass. 388, 401 (2019), quoting Commonwealth v. Denis, 442 Mass. 617, 629 (2004).

Specifically, the defendant argues that trial counsel was ineffective for (1) failing to challenge a juror; (2) failing to exclude references to the defendant's sexual conduct; (3) failing to impeach S.T.; (4) failing to call a witness; (5) acquiescing to the impeachment of a witness; and (6) failing to effectively argue the evidence during closing arguments.

For the reasons that follow, we conclude that the defendant failed to make an adequate showing of an act or omission of trial counsel that amounted to the ineffective assistance of counsel. See Commonwealth v. Britto, 433 Mass. 596, 608 (2001). See also Mass. R. Civ. P. 30 (c) (3). a. Failure to challenge juror.

During empanelment, juror no. 8, whose brother was a police officer, answered, "Yes," when asked whether he would be more inclined to believe a police officer based on the officer's profession. The judge asked follow-up questions during which juror no. 8 said that if instructed by the judge to assess the credibility of all witnesses the same, regardless of employment, he could do so. Neither party objected, and the juror was seated.

"Whether to exercise a peremptory challenge of a particular juror is a question of strategy addressed to the judgment of the defendant and his counsel." Commonwealth v. Torres, 71 Mass.App.Ct. 723, 726 (2008). Juror no. 8's responses to the judge's questions demonstrated the juror's unequivocal belief that he could be fair and impartial.^[4] See Commonwealth v. Colton, 477 Mass. 1, 17 (2017) (no error in empaneling juror where, "Yes, I think so," in response to judge's question "fairly could be viewed as unequivocal"); Commonwealth v. Ortiz, 50 Mass.App.Ct. 304, 308, 309 (2000) (counsel not ineffective for failing to challenge seating of police officer who indicated he could impartially weigh testimony of police officers). The defendant failed to show any prejudice from trial counsel's decision to forego a peremptory challenge.

b. Testimony about sexual conduct.

The defendant contends that the doctrine of collateral estoppel and principles of double jeopardy precluded the prosecutor from presenting evidence of the sexual conduct related to the charge on which he had been acquitted in the first trial. He argues that trial counsel was ineffective for failing to exclude this evidence.^[5]

First, each of the three indictments required proof of a fact that the others did not. See Commonwealth v. Brule, 98 Mass.App.Ct. 89, 93 (2020) ("A defendant may be punished for two crimes arising out of the same conduct so long as each crime requires proof of an element that the other does not"). Second, the doctrine of collateral estoppel did not prevent introduction of this evidence.^[6] The prosecutor did not introduce this evidence to argue that the defendant committed the crime of assault with intent to rape. See Commonwealth v. Adams, 485 Mass. 663, 674-677 (2020). Rather, the evidence was properly presented to present "as full a picture as possible of the events surrounding the incident." Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982). See also Commonwealth v. Longo, 402 Mass. 482, 489 (1988) ("The Commonwealth is entitled to 'show the whole transaction of which the crime was a part'" [citation omitted]). Indeed, the evidence supported the Commonwealth's theory that the defendant's frustration over S.T.'s refusal of his proposition served as the motive for the stabbing. See Adams, 485 Mass. at 676-677. The prior jury's acquittal of the defendant did not necessarily determine that the defendant had not engaged in sexually motivated conduct during the incident in question.

Finally, even if its admission were error, this evidence did not create a substantial risk of a miscarriage of justice where the primary issue at trial was identification. As such, the absence of a motion to exclude this evidence was not ineffective assistance of counsel where it had a minimal chance of success, and the defendant used this evidence to attack the victim's credibility. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).

c. Impeachment of S.T.

Next, the defendant argues that trial counsel was ineffective for failing to impeach S.T. with her prior out-of-State convictions, and criminal charges that were pending at the time of trial.

Pursuant to G. L. c. 233, § 21, witnesses may be impeached with prior convictions, subject to strict timing limitations --five years for a misdemeanor and ten years for a felony. See G. L. c. 233, § 21. If these limitations apply, the judge has no authority or discretion to admit the evidence. See Commonwealth v. Childs, 23 Mass.App.Ct. 33, 35-36 (1986) (judge erred in permitting impeachment of defendant's credibility with convictions that were time-barred under G. L. c. 233, § 21).

In 2003, S.T. was convicted in Virginia of theft, drug, and firearm offenses. She was sentenced to "split" and suspended sentences, and placed on supervised probation for five...