Commonwealth v. Garvin

• Decision Date: 14 May 2010
• Docket Number: SJC-09548
• Parties: COMMONWEALTHv.Anthony GARVIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

456 Mass. 778

926 N.E.2d 169

COMMONWEALTHv.Anthony GARVIN.

SJC-09548

Supreme Judicial Court of Massachusetts Hampden.

Argued Jan. 8, 2010.

Decided May 14, 2010.

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Emanuel Howard for the defendant.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

In 2004, the defendant was convicted of the murder in the first degree of the victim, Felipe Santiago, on the theory of deliberate premeditation, and of unlawful possession of a firearm. He appealed. Represented by new counsel, he filed a motion for a new trial and an evidentiary hearing, charging that his trial counsel was constitutionally ineffective and that there was reversible error in the prosecutor's closing argument. He requested a new trial or, alternatively, discovery and funds to acquire additional information to support his motion. After an evidentiary hearing, the motion was denied by the same judge who presided at his trial. The defendant appealed. His claims on appeal arise principally out of his motion for a new trial, which he argues was denied in error. He requests that we remand the case for a more extensive evidentiary hearing on his motion, further discovery, and funds. Alternatively, he argues that we should exercise our power under G.L. c. 278, § 33E, to set aside his conviction and order a new trial. Because we conclude that there was no error in the denial of the defendant's motion for a new trial or in the other issues he raises on direct appeal, and our review of the entire record provides no basis to exercise our power under G.L. c. 278, § 33E, we affirm the defendant's convictions and the denial of his motion for a new trial.

Facts. We present the essential facts the jury were warranted in finding, reserving details for our discussion of the issues raised.

Two of three eyewitnesses, Luis Orlando Blanco Moreno, whom we shall call Blanco, and Nelson Aponte, testified to the details of the murder for the Commonwealth. On September 22, 2002, the defendant was standing on the third-floor rear porch of an apartment building in Springfield with Aponte, Blanco, Gabriel Plazaola, and the victim, who was also known as Pupi. The defendant was the only African-American present. Aponte, Plazaola, and the victim were members of the La Familia gang.

The defendant and the victim exchanged heated words. The defendant walked inside the apartment. Shortly thereafter, the victim, Plazaola, and Blanco were on the back porch, leaning on the rail, facing the back yard. The defendant, who had returned to the porch area, walked up behind the victim and shot him at close range in the back of the neck using a nine millimeter semiautomatic handgun. Aponte testified that, after he shot the victim, the defendant said, “What happened?” and fled. Later that day, Aponte and Blanco, who were acquainted with the defendant, gave statements to police and identified the defendant as the shooter from a photographic array.¹ In exchange for their testimony at trial, both witnesses were promised consideration concerning criminal charges pending against them.²

The bullet damaged major blood vessels in the victim's neck, causing a fatal loss of blood. It exited to the left of his upper lip, near his left nostril, fracturing a tooth in the left upper jaw. An empty shell casing and a spent projectile consistent with a nine millimeter semiautomatic pistol, as well as pieces of a tooth and a gold tooth decoration engraved with the name “Pupi,” were recovered from the ground below. The spent projectile had struck a nearby building at a point some twelve feet high before it fell to the ground. No weapon was recovered. There was no physical evidence linking the defendant to the shooting.

After fleeing to New York and then Virginia, the defendant turned himself in to the Springfield Division of the District Court Department on May 27, 2003. Aponte saw the defendant again while the defendant was incarcerated awaiting trial. The defendant stated that he was on “angel dust” at the time of the shooting. He also told Aponte not to testify against him and, in return, the defendant would not reveal that Aponte was a “snitch” for giving a statement about the victim's shooting to police.

Omar Marrero, who shared a cell with the defendant for approximately two weeks, also testified for the Commonwealth. The defendant told Marrero that he shot the victim in the back of the neck because a “kid” who was selling drugs for the defendant refused to continue doing so after the victim told the “kid” not to. The defendant also stated that he had his wife tell Plazaola not to testify, see note 1 supra, and that he was going to pay two “girls” to say that they tried to rob the defendant at gunpoint, and when the defendant tried to wrestle the gun away, it went off. In addition, after the victim was shot the defendant telephoned the police because “somebody told him they wanted to question him.” The defendant went next door to a neighbor's house and “when he saw the police come with their guns drawn, he ... went on the run.”

Marrero also overheard the defendant say to another inmate, Timothy Zanetti, who was a member of La Familia, “That's why I killed your boy,” after which Marrero observed an altercation between the two men.

The defendant did not testify. Through the witnesses he called and the cross-examination of the Commonwealth's witnesses, the theory of the defense was that someone else shot the victim and that the shooting was related to a power struggle over leadership of the La Familia gang, of which the victim was a member.³ The evidence also supported the inference that the defendant was not a member of La Familia or any other gang. The defense asserted that the others who were present that day also were members of La Familia, and were lying to frame the defendant. In addition, the defense used the testimony of an officer from a District Court lockup that he saw the defendant and Aponte talking together at some point after the murder with no apparent hostility between them, to support an inference that, if the defendant actually had shot the victim, members of the La Familia gang would not have been friendly to him. The defense established that the jailhouse informant, Marrero, also was a member of La Familia, which supported the inference that Marrero was participating in the gang's attempt to blame the defendant. In addition, trial counsel also attacked the credibility of Marrero, Aponte, and Blanco, emphasizing that the Commonwealth promised each consideration concerning criminal charges pending against them in exchange for their testimony.⁴ Moreover, trial counsel elicited from Blanco that shortly after the shooting he washed blood, presumably the victim's, off his shoes. ⁵

In his closing argument, trial counsel argued that the defendant's asking “What happened?” after the shooting was evidence of his innocence because they were not the words of a “cold-blooded killer” who “turned himself in.” He stated that the reason that the defendant was identified as the shooter was because he was the only African-American the witnesses had seen previously at the apartment. He derided the Commonwealth for focusing exclusively on the defendant at the behest of Aponte and Blanco. He again attacked the credibility of Aponte, Blanco, and Marrero, calling them “liars all,” who were trying to help themselves, and stated that La Familia gang members stand together. He pointed out that Aponte was a witness in a different murder case and argued he was “well on his way to earning the government murder witness merit badge.” Counsel implied that Aponte was the shooter, twice stating that people who stood next to Aponte “end up dead.” He asked why Aponte, who was a childhood friend of the victim, was friendly to the defendant in the lockup if he were so grieved by the victim's murder. Concerning Marrero, counsel emphasized that he seemed to have been a jailhouse “snitch” more than once, given that he had been moved around to many cells before he ended up sharing a cell with the defendant. He further implied that Marrero was placed in the defendant's cell by the Commonwealth. Trial counsel also attacked the credibility of Blanco's testimony that everyone fled the porch immediately after the shooting and followed the defendant into the apartment. He pointed out that they did not flee by using the stairs to the porch, thereby taking a route that would have led them away from the defendant, whom they allegedly saw shoot the victim (and who still presumably possessed the gun), but rather they followed after him into the apartment. Moreover, trial counsel argued that the ballistics evidence did not assist the jury in evaluating the defendant's guilt or innocence.

Discussion. In his amended motion for a new trial, the defendant argued that he received constitutionally ineffective assistance of his trial counsel, alleging that he prevented him from testifying at trial; failed to introduce evidence to negate consciousness of guilt evidence; failed to present, through the defendant's testimony, critical evidence he announced in his opening statement to the jury; failed to present a viable defense; failed to impeach fully the two eyewitnesses and jailhouse informant Marrero; and ineffectively pursued motions to suppress the statement of Marrero. He also argued that a remark in the prosecutor's closing improperly infringed on his constitutional right to remain silent.

The judge, who also was the trial judge, denied the motion after an evidentiary hearing limited to the issue whether trial counsel prevented the defendant from testifying. The defendant argues that the judge erred in denying his motion for a new trial, and abused his discretion in not allowing appellate counsel to testify at the evidentiary hearing and in limiting the scope of the hearing. “Where the denial...