MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of aggravated rape of a child, in violation of G. L. c. 265, § 23; enticement of a child under sixteen, in violation of G. L. c. 265, § 26C (b); possession with intent to distribute a Class D substance, in violation of G. L. c. 94C, § 32C (a); and possession of Class B and C substances, in violation of G. L. c. 94C, § 34.
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The defendant appealed, and while his appeal was pending he filed a motion for a new trial in which he alleged ineffective assistance of counsel. The motion was denied by the trial judge without an evidentiary hearing. The defendants direct appeal has been consolidated with his appeal from the denial of the new trial motion.
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We affirm.
1. Factual background. The jury could have found the following facts. The two victims, Susan and Diane (pseudonyms), were fifteen years old in the summer of 2014 and were close friends. Both Susan and Diane admitted that they used drugs: they smoked marijuana and consumed cough medicine in pill form, known as “triple Cs,” that made them feel drunk. One day, Diane met the defendant at the Malden train station and obtained marijuana from him. About two weeks later, both victims met the defendant at the same train station to buy marijuana. He drove the victims around and told them that he wanted them to sell marijuana for him, but that they had to earn his trust first, which they could do by exposing their breasts. The defendant stopped the car in a parking lot and again asked the victims to show him their breasts. The victims initially hesitated, but after further suggestion by the defendant, Susan flashed her bare breasts, and then Diane did the same.
Not long thereafter, Susan made plans to meet with the defendant alone. During the encounter, the defendant drove Susan around and told her that he wanted a video of her “playing with [her]self,” but she refused. He then suggested that if she would not do that, she should fellate him. The defendant got into the back seat of the car and Susan sat next to him. The defendant pulled his pants and underwear down and pushed Susans head toward his crotch, and Susan performed oral sex on him. Susan returned to Dianes house, but did not tell Diane about the incident because she was embarrassed.
Later in the summer, Susan was hospitalized for a drug overdose. At trial, the defendant suggested to the jury, by pointing out inconsistencies in the testimony of Susan and Diane, that Susan fabricated the allegations against the defendant to avoid getting in trouble.
2. The motion for a new trial. The defendant filed a motion for a new trial contending that trial counsel was ineffective for (1) not filing a motion to suppress the evidence seized during the execution of the search warrant at the defendants apartment and (2) failing to call a pharmacology expert to opine on the effects of ingesting cough medicine containing dextromethorphan. The trial judge denied the motion in a well-reasoned written memorandum of decision.
Under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), a judge may grant a motion for “a new trial at any time if it appears that justice may not have been done.” A motion for a new trial is thus committed to the sound discretion of the judge, Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and we pay particular deference to the rulings of a motion judge who served as the trial judge in the same case, see Commonwealth v. Leavitt, 21 Mass. App. Ct. 84, 85 (1985). Where, as here, a motion for a new trial is based on ineffective assistance of counsel, the defendant must show 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. Saferian, 366 Mass. 89, 96 (1974). For the reasons that follow, we conclude that the new trial motion was properly denied.
a. Alleged failure to file a motion to suppress. After the defendant was arrested, the police executed a search warrant at his apartment. The warrant authorized the seizure of evidence of the following crimes: enticement of a child, posing a child for sexual photographs, and possession of child pornography. While executing the warrant, the police seized various pills, marijuana, money, a ledger, four cell phones, drug sale paraphernalia, and a cell phone memory card containing a video in which the defendant made the statement, “I sell drugs and shit like that.” These items were later introduced at trial as evidence of the drug crimes.
As the judge correctly observed, a failure to file a motion to suppress may constitute ineffective assistance of counsel if there existed some likelihood that such a motion would have been successful. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) (“It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success”). Here, a motion to suppress would have had minimal, if any, chance of success.
The defendant argues that trial counsel could successfully have moved to suppress the evidence because the affidavit filed in support of the search warrant contained only generalized facts that were insufficient to establish probable cause to believe that the defendant possessed child pornography and that evidence of that crime would be found at his apartment. We disagree. The information contained in the affidavit was obtained during an interview of Diane, who reported that the defendant (1) had repeatedly asked her and Susan to expose their breasts and had once taken a photograph with his cell phone of Susan doing so; (2) had had Susan perform oral sex on him; and (3) had repeatedly requested that the victims provide him with pornographic videos of themselves. The investigating officer also stated in the affidavit that those who have a demonstrated sexual interest in children are likely to keep and collect sexually explicit images of children. This information was sufficient to establish probable cause to believe that the defendant had a sexual interest in minors, that he had photographed Susan exposing her breasts, and that evidence of enticement of a child, posing a child for sexual photographs, and possession of child pornography would be found in his apartment. See Commonwealth v. Anthony, 451 Mass. 59, 70-71 (2008); Commonwealth v. Kenney, 449 Mass. 840, 845 (2007). As a result, a motion to suppress based on the alleged insufficiency of the affidavit to establish probable cause would not have been successful, and the judge properly denied the new trial motion on this ground.
b. Expert testimony. The defendant next claims that trial counsel was ineffective for failing to call a pharmacology expert to opine on the effects of ingesting cough medicine containing dextromethorphan, an ingredient found in “triple Cs.” In support of this claim, he submitted an affidavit from a pharmacist who opined that dextromethorphan “can provide a ‘high’ associated with opioids if not taken correctly” and that “orally ingesting an excess of dextromethorphan ․ [in] an excessive amount causes hallucinations and dissociative effects.” The defendant argues that expert testimony to this effect would have aided trial counsel in his effort to impeach the credibility of Diane and Susan by showing their ability to accurately recall events was affected by their consumption of “triple Cs.”
“Where the claimed ineffectiveness is the result of a [strategic or] tactical decision of trial counsel, the defendant will prevail only if he demonstrates that counsels tactical choice was ‘manifestly unreasonable.’ ” Commonwealth v. Holland, 476 Mass. 810, 812 (2017). “The decision to call, or not to call, an expert witness fits squarely within the realm of strategic or tactical decisions.” Commonwealth v. Ayala, 481 Mass. 46, 63 (2018). Here, as the judge observed, the defendants primary strategy was to suggest that both Susan and Diane had fabricated the allegations. Expert testimony on the hallucinogenic properties of dextromethorphan would not have benefited this strategy. Moreover, as the judge also noted, given the defense strategy and the manner in which the victims testified, the introduction of expert testimony as proposed in the new trial motion “would likely have been counterproductive and ill advised.” We agree with the judges assessment and the denial of the new trial motion on this ground.
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Judgments affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. The case first proceeded to trial on July 8, 2016, but ended in a mistrial. Thereafter, three indictments charging human trafficking, one charging enticement of a child, and one charging rape of a child were nol prossed. The defendant also was charged as a habitual offender, but that charge was dismissed after the parties agreed to a joint sentence recommendation.
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. Although the defendant appealed from “the judgment of conviction by a jury,” the only issues addressed in his brief concern the denial of the new trial motion.
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. The defendant also argues that the judge erred in denying his motion for a new trial without holding an evidentiary hearing. Because the sufficiency of the affidavit in support of the warrant application and the reasonableness of trial counsels decision not to call an expert on the effects of dextromethorphan is apparent on the record, there was no need for an evidentiary hearing. See Commonwealth v. Barry, 481 Mass. 388, 401 (2019) (judge did not err in denying motion for new trial without evidentiary hearing where no substantial issue was raised and “the briefs, supporting documents, and trial transcripts were sufficient to allow him to reach an informed decision”).