MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In November of 2007, the defendant was convicted of armed assault with intent to murder, armed robbery, assault and battery, assault and battery by means of a dangerous weapon, and kidnapping. Following an unsuccessful direct appeal of his convictions, and two unsuccessful new trial motions, the defendant filed this third motion for a new trial in 2019. He argued, for the first time, that his trial counsel at the 2007 trial was ineffective in not calling an expert witness on the science of eyewitness identification. A Superior Court judge denied the motion, concluding that trial counsels tactical decisions as to how to the defend the case, including the decision not to present an expert, were not manifestly unreasonable when made. The defendant appeals, claiming that the motion judge abused his discretion. We affirm.
Background. The defendant and his codefendant, Jorge Gomes, were tried and convicted in November of 2007. The evidence at trial showed that in the early morning of June 3, 2006, the defendant and Gomes beat and robbed their cab driver (victim) at knifepoint in New Bedford. The defendant and Gomes then drove the cab to Westport and left the victim on the side of the road, bleeding from a stab wound. Later that day, the police located the defendant and Gomes near where the victim had picked them up earlier that morning. The police photographed the two men and showed the pictures to the victim, who identified the defendant and Gomes as his attackers.
Before trial, the defendant moved to suppress all evidence of the defendants identification, arguing that the procedure used -- showing the victim pictures of only the defendants and not utilizing a photograph array -- was unnecessarily suggestive and thus a violation of due process. That motion was denied. The defendant thereafter appealed his convictions, claiming error in the denial of his motion to suppress. After a panel of this court affirmed, the defendant joined Gomess 2011 motion for a new trial, arguing, among other things, that trial counsel was ineffective in failing to present evidence contradicting the Commonwealths timeline of events. The motion was denied, and a different panel of this court affirmed on a second appeal, in 2014. The defendant filed his second motion for a new trial in 2018, arguing that developments in the case law regarding eyewitness identification was “newly available evidence” that justified a new trial. The motion judge denied the motion, reasoning that the evidence was not in fact new, and therefore did not warrant a new trial.
The defendant filed the subject third motion for a new trial in 2019, arguing ineffectiveness of counsel based on the failure to present an expert witness on eyewitness identification. The motion judge denied the motion, concluding that trial counsels decision to proceed without an expert was not manifestly unreasonable, and that counsel had effectively exploited the weaknesses of the identification through other methods. Specifically, trial counsel cross-examined both the victim and a police witness regarding the photographic identification, noting that the police showed the victim only the two pictures of the defendants and did not utilize a photograph array. Counsel then argued in closing, at length, that the identification was flawed for this reason.
Discussion. The defendant argues that the motion judge abused his discretion in denying the third new trial motion.
2
To succeed on his ineffective assistance claim, the defendant needed to show that his attorneys performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and that he was “likely deprived ․ of an otherwise available, substantial ground” of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Moreover, where a claim of ineffective assistance is based on a “strategic tactical decision” -- such as calling or not calling an expert -- the decision must have been “manifestly unreasonable” at the time that it was made. Commonwealth v. Ayala, 481 Mass. 46, 62-63 (2018). We review the motion judges decision for an error of law or an abuse of discretion. Commonwealth v. Brescia, 471 Mass. 381, 387 (2015).
“[I]n evaluating whether [trial counsels] decision [wa]s manifestly unreasonable,” the Supreme Judicial Court has cautioned that we must “eliminate the distorting effects of hindsight.” Ayala, 481 Mass. at 64 n.20, quoting Commonwealth v. Holland, 476 Mass. 801, 812 (2017). Our decision must be informed by the fact that, in 2007, “the retention of experts on eyewitness identification was not as prevalent as it is today.” Ayala, supra.
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Particularly with this context in mind, the motion judge did not abuse his discretion in denying the defendants motion.
Trial counsels decision to forgo an expert “fits squarely within the realm of strategic or tactical decisions.” Ayala, 481 Mass. at 63. See id. (collecting cases). See also Commonwealth v. Gomes, 478 Mass. 1025, 1026 (2018) (“decision not to present expert testimony ․ was a tactical one”). The Supreme Judicial Court has twice held that where, as here, trial counsel highlights the weaknesses of the identification through other means, a decision not to present expert testimony on the issue is not manifestly unreasonable. In Ayala, supra at 63-65, for example, the Court -- informed by the fact that it was not particularly common for defense counsel to retain eyewitness experts in 2009 -- held that counsels decision to proceed without such an expert was not manifestly unreasonable. The Court emphasized that the reliability of the identification was “vigorously challenged” through cross-examination and during closing argument. Id. at 64-65. Similarly, in Commonwealth v. Watson, 455 Mass. 246, 258 (2009), the Court held that trial counsels decision to forgo an eyewitness expert was not manifestly unreasonable, where counsel attacked the reliability and credibility of the identification on cross-examination and “repeated” such attacks “forcefully” in closing.
The defendants case here is not materially different from Ayala and Watson. Trial counsel effectively cross-examined the victim and the police on the identification procedure, eliciting that the police showed the victim only two pictures, both of which were of the defendants, and that the police did not use a line-up or photograph array. Trial counsel emphasized these facts in closing, arguing forcefully that they rendered the identification unreliable. Particularly where eyewitness identification experts were not as common in 2007 as they are today (and where counsel may have concluded that an experts testimony would not have been effective in this case), we cannot say that the motion judge abused his discretion in concluding that trial counsels decision was not manifestly unreasonable.
Order denying third motion for a new trial affirmed.
FOOTNOTES
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. We note at the outset that, as the Commonwealth argues, the defendant appears to have waived this argument. “[A] defendant must assert all reasonably available grounds for postconviction relief in his first [motion for a new trial], or those claims are lost.” Commonwealth v. Deeran, 397 Mass. 136, 139 (1986). This “rule applies equally to constitutional claims,” including those for ineffective assistance of counsel, “which could have been raised, but were not raised, in the defendants original motion.” Id. This is the defendants third motion for a new trial, yet it is the first time he argues that trial counsel was ineffective for failing to call an expert on eyewitness identification. Although apparently fitting squarely within the waiver doctrine, the motion judge considered this argument on the merits. See Commonwealth v. Watson, 409 Mass. 110, 112 (1991). As did the motion judge, we address the merits of the defendants claim.
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. Although the Supreme Judicial Court discussed eyewitness identification at length in Commonwealth v. Gomes, 470 Mass. 352 (2015), and also detailed the need for jury instructions on the subject, that decision does not play into our analysis where it came years after the defendants 2007 trial. Nor did trial counsel have the benefit of the Report and Recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence: Report and Recommendations to the Justices (July 25, 2013).