MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the district court, the defendant was convicted of carrying a firearm without a license.
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See G. L. c. 269, § 10 (a). He moved for a new trial on the ground of ineffective assistance of counsel in connection with a motion to suppress evidence that was denied prior to trial. The motion for new trial was heard, not by the trial judge, but by the judge who had heard the pretrial motion to suppress (motion judge). On appeal, the defendant contends that the motion judge erred in denying his motion to suppress evidence and his motion for new trial. Although we take issue with the motion judge, rather than the available trial judge, hearing the motion for new trial, we affirm the defendants conviction and the order denying his motion for new trial.
Facts at the suppression hearing.
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At approximately 10:15 p.m. on January 19, 2017, Amesbury police officer David Noyes observed a gray Honda motor vehicle with two male occupants who “looked at [him] wide-eyed,” rolled through a stop sign, and made a “quick right and accelerated” without signaling. The officer noticed that the Hondas license plate was hanging and was secured by a single screw. The officer called dispatch to conduct a registry query of the vehicle. Shortly thereafter, Amesbury police officer Neil Moody, who was nearby and heard the dispatch request, observed the same vehicle. Upon learning that the Hondas registered owner did not have a valid license, Officer Moody pulled up directly behind it as it was stopped at a red light; when the light turned green, the officer activated his signal lights to initiate a traffic stop. The Honda, which had been signaling a left turn, continued straight through the green light and did not stop at available locations it passed, instead turning left into the parking lot of a convenience store and parking in front of a building, “slightly askew ․ taking up two [parking] spaces.” Officer Moody pulled in behind the Honda and Officer Noyes pulled in behind him.
Before the officers were able to approach the Honda, both the driver and passenger (later identified as the defendant) “jumped out” of the vehicle and, leaving the doors open, began walking quickly in opposite directions. Both officers got out of their police cars and yelled at the defendant and the driver to stop and get back into their car. The defendant was eight to ten feet away from the vehicle when Officer Moody drew his taser and pointed it at the defendant, ordering him “multiple times” to get back into the vehicle. After several orders from the officers, the defendant and the driver returned to the vehicle and were ordered to put their hands on the vehicles dashboard. Although they initially complied, both the defendant and the driver took their hands off the dashboard. After the defendant bent down at the waist, Officer Noyes asked Officer Moody to remove the defendant from the vehicle, due to safety concerns. Once the defendant was removed, Officer Noyes went to remove the driver, who then lunged towards the center console. After both the defendant and the driver were secured, an officer searched the front passenger compartment and located a loaded handgun.
The defendant and the driver were placed under arrest. When they told the officers that they did not speak English well, a Spanish speaking officer from another police department was called to the scene; after that officer administered Miranda warnings in Spanish, the defendant and the driver appeared to understand.
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Subsequently, the driver admitted that the firearm was his, and that he had purchased it on the street in Lawrence. The defendant stated that he had been trying to hide the firearm.
Discussion. 1. Motion to suppress. On direct appeal, the defendant contends that, because the Commonwealth failed to establish that the defendant “receive[d] the Miranda warnings” in the “only language that [the defendant] speaks and understands,” his statements should have been suppressed. He argues that the motion judge erroneously relied on testimony from officers who “did not speak or understand Spanish” to conclude that such warnings were properly given. In our review of a ruling on a motion to suppress, “[w]e accept the findings of the motion judge absent clear error, but determine independently ‘the correctness of the judges application of constitutional principles to the facts as found’ ” (citation omitted). Commonwealth v. Santiago, 470 Mass. 574, 578-579 (2015).
As a preliminary matter, we note that the defendants motion to suppress did not allege that Spanish was the only language that he spoke and understood. The motion alleged generally that the defendant did not waive voluntarily his rights under the U.S. Constitution and Massachusetts Declaration of Rights. The defendants supporting affidavit likewise indicated generally that he did not knowingly and voluntarily waive any constitutional rights and that any statements attributed to him “were not accurate and not truly voluntary.” Neither the motion nor the affidavit indicated that a language issue was the basis for seeking suppression. To the contrary, the factual predicate for the defendants motion was that he was “intimidated by the number of law enforcement officers converging on the scene,” and that he was “intimidated by the demeanor and aggressiveness of the officers at the scene.” Under the circumstances, the language issue was waived.
Regardless of the lack of notice given as to the language issue, however, the Commonwealth addressed it at the hearing. Officers Noyes and Moody testified that, once they understood that there was a language issue, they secured the assistance of a Spanish speaking officer. The officers also testified that the Spanish speaking officer read the defendant his Miranda rights in Spanish, after which, the defendant appeared to understand and then made statements to the police. The motion judge credited the testimony of the officers and determined that the defendant was advised of Miranda rights in his native language and made a knowing, voluntary, and intelligent waiver of those rights. This he was entitled to do. See Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001) (in hearing on motion to suppress, “determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses”).
The defendant nevertheless contends that the police did not speak or understand Spanish and therefore had no basis on which to testify what was communicated between the Spanish speaking officer and the defendant. Yet, there was no evidence adduced at the hearing concerning the ability of Officers Noyes and Moody to speak or understand Spanish. Moreover, the defendant did not object to the officers’ testimony on the basis that they lacked a foundation to testify as to the communication between the Spanish speaking officer and the defendant.
Additionally, the defendant never contended that there was any defect with the Miranda warnings as given. Rather, the defendants claim (made explicit only post-hearing) was that they were not given at all. Under the circumstances, the record was sufficient for the motion judge to conclude that the defendant was properly advised of his Miranda warnings. See Commonwealth v. Perez, 411 Mass. 249, 256 (1991) (rejecting argument that non-Spanish speaking officers testimony that Spanish speaking officer administered Miranda warnings was insufficient to show that proper warnings were administered).
2. Motion for new trial. The defendant moved for a new trial on the basis of ineffective assistance of counsel premised on two grounds, both related to the motion to suppress evidence. On appeal, we consider whether the motion judge committed a significant error of law or abuse of discretion in denying the defendants motion for new trial. Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020). Motions for new trial are committed to “the sound discretion of the judge,” Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and “are granted only in extraordinary circumstances.” Commonwealth v. Comita, 441 Mass. 86, 93 (2004). “A judge may make the ruling based solely on the affidavits,” Commonwealth v. Scott, 467 Mass 336, 344 (2014), and “the burden is on the defendant to prove facts that are ‘neither agreed upon nor apparent on the face of the record’ ” (citation omitted). Comita, supra.
Where, as here, the motion is based on ineffective assistance of counsel, the defendant must show that there has been a “serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” and that counsels performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made” (citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). When the claim involves counsels performance with respect to a motion to suppress, “the defendant must demonstrate that the evidence would have been suppressed if properly challenged.” Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011).
a. Miranda warnings. The defendant argues that trial counsel performed deficiently by failing to “hold the Commonwealth to its burden to prove that [the defendant] received accurate and complete Spanish-language Miranda warnings.” As the motion judge noted, however, the affidavits in support of the motion for new trial failed to raise an issue with respect to the adequacy of the warnings. In his own affidavit, the defendant acknowledged that “a Spanish speaking officer arrived” at the scene but contended that the officer did not tell him any of the things that constitute Miranda warnings.
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Therefore, the defendant failed to establish counsels deficient performance and the motion judge properly denied the defendants motion on this ground.
b. Disproportionate force. The defendant also argues that trial counsel was ineffective for failing to argue that the use of disproportionate force during the encounter required suppression of the defendants statements. The defendant contends that his trial counsel should have argued that, when Officer Moody “painted” him with the red laser light of a taser, the defendant was effectively under arrest but the police did not have probable cause to believe that he had committed any crime at that time. Relying on cases involving the threat of lethal force (i.e., pointing a gun), the defendant argues that a disproportionate force argument would have succeeded in suppressing evidence leading to dismissal of the case. As noted by the motion judge, however, the defendants theory was a novel one, as evidenced by the lack of any case law involving a disproportionate force argument in the context of a taser. See Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 678 n.5 (2011) (“omission of novel theory does not typically constitute performance below the level of the ordinary fallible lawyer”). The judge further concluded, and we agree, that this was not a routine traffic stop and that the officers could have perceived the defendant as a threat. As the defendant failed to demonstrate counsels deficient performance, the judge properly denied the motion for new trial on this ground as well.
3. Judge hearing motion for new trial. The parties appeared for hearing on the defendants motion for new trial before the judge who had heard the pretrial motion to suppress evidence. The motion judge explained to the parties that the trial judge had referred the case to him because the motion for new trial concerned the motion to suppress that had been handled by him. Although the prosecutor alerted the judge to specific recent case law indicating that the motion should be heard by the trial judge, the motion judge asked the defendant whether he had any objection to his hearing the motion or, alternatively, whether he preferred to have the trial judge hear the motion for new trial. The defendant indicated no objection to proceeding before the motion judge and, at the prosecutors insistence, the motion judge placed the defendant under oath and had him waive any issue on appeal regarding the election.
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The trial judge should have heard and decided the motion for new trial. Motions for new trial are governed by Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), which provides that the “trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done.” The rule specifically authorizes the trial judge, not any judge, to rule on a motion for new trial, because the trial judge, having presided over the trial, is in the best position to determine whether justice may not have been done. See In re McCastle, 401 Mass. 105, 106 (1987).
Even where a pretrial motion to suppress is at issue in a postconviction motion for new trial, the judge who heard the pretrial motion is not in any better position than the trial judge. Although the motion judge may be well placed to evaluate defense counsels performance in connection with the suppression motion, a motion for new trial requires a further assessment of the strength of the Commonwealths case and the impact at trial of the evidence at issue in the motion to suppress. This requires the vantage point of the trial judge.
As the Supreme Judicial Court observed in Commonwealth v. Richards, 485 Mass. 896, 911 (2020): “If a claim of ineffective assistance of counsel necessarily includes an evaluation of the likelihood that a motion to suppress would have been allowed if the defendant had received effective trial counsel, the trial judge would not refer the matter to the judge who had heard the motion to suppress for his or her analysis; nor, if the claim involves an analysis of whether the jurys verdict would have been different, would the trial judge reconvene the jury. Instead, in deciding a motion for a new trial, a trial judge conducts his or her own evaluation of the likelihood of success.”
Furthermore, the parties should not have been given an option to choose the judge who would hear the motion where the rules of criminal procedure and case law clearly established that the issue was for the trial judge. The rule avoids an occurrence where parties are asked to select which judge they want to hear the motion, and the “undesirable problem of judge shopping” (citation omitted). Demoulas v. Demoulas, 432 Mass. 43, 53 (2000). See Commonwealth v. Gebo, 489 Mass. 757, 768-769 (2022) (“ ‘Judge shopping’ refers to a litigants attempt to steer a case toward or away from a particular judge, generally out of some belief that the judges idiosyncrasies would make it more or less beneficial to the litigant that that particular judge preside over the litigation,” which is, “inherently unfair to other litigants, undermines public confidence in the judiciary, and properly has earned the condemnation of courts across the country”).
We therefore once again reiterate that a motion for new trial is properly heard by the trial judge and assigned to another only when the trial judge is unable to hear the motion. See, e.g., Richards, 485 Mass. at 904 (because trial judge had retired, another judge was assigned case).
Judgment affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. The defendant was also charged with one count of carrying a loaded firearm without a license and one count of disorderly conduct. The trial judge allowed the defendants motion for a required finding of not guilty on the disorderly conduct charge. The defendant was acquitted of carrying a loaded firearm without a license.
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. The facts are taken from the motion judges findings, supplemented by evidence presented at the hearing on the motion to suppress, which does not detract from those findings. See Commonwealth v. Garner, 490 Mass. 90, 93-94 (2022).
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. Despite the language issue, the police were able to communicate basic commands with which the defendant and the driver complied, for example, to put their hands on their heads or the steering wheel and to get back into the car.
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. In a post-hearing memorandum of law, the defendant argued that he “did not receive Miranda warnings” and, as support, drew the courts attention to the fact that the arrest report did not mention the defendant receiving Miranda warnings in Spanish. The argument appears to be aimed at persuading the judge to discredit the testimony of Officers Noyes and Moody that the defendant was advised of Miranda rights in Spanish. The judge, however, found it improbable that a Spanish speaking officer would be called to the scene for the specific purpose of administering Miranda warnings and then fail in that single task.
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. Having assented to this procedure, the defendant has not raised any challenge to the motion judge hearing the new trial motion. Additionally, because our own review of the record leads us to conclude that the motion was properly denied, we need not vacate the order and remand the new trial motion so that the trial judge can decide it.