Commonwealth v. Ayoub

By the Court (Kantrowitz, Kafker & Hanlon, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28

After a jury trial, the defendant was convicted of being an accessory after the fact to armed robbery and assault and battery by means of a dangerous weapon; his motion for a new trial was denied. He now appeals, arguing that there was a "prejudicial divergence between the evidence presented to the grand jury and the evidence presented at trial." He also contends that the judge erred in denying, without an evidentiary hearing, his motion for new trial claiming ineffective assistance of counsel. We affirm.

Variance. There was evidence that the defendant's three codefendants, Gary Corriveau, Glen Despres, and Patrick Szalay, approached someone they believed to be a drug dealer in Haverhill; they told him to get into their car and then demanded that he give them Percocets. When the victim refused, Corriveau "pistol whipped" him in the face, breaking his nose, and then shot him. The victim managed to get out of the car and the three drove off.

The Commonwealth presented evidence to the grand jury that the defendant was a friend of the codefendants, and that they picked him up after the crime was committed, on their way back to Salem, New Hampshire. The grand jury also heard that the defendant later assisted Corriveau, using "rubbing alcohol to wipe down the rest of the back seat," removing blood from the car where the shooting occurred.

At trial, Szalay testified that, although the defendant was with the group earlier, while they planned the robbery, they dropped him off at his mother's house immediately before the three drove to Haverhill to obtain the drugs. Afterwards, when the three men returned to New Hampshire, they picked the defendant up at his mother's house. The petit jury also heard evidence that, after the robbery, the defendant and Corriveau cleaned the blood from the "backseat and above the headrest on the passenger seat." According to Szalay, the defendant later told him to "dummy up and get a lawyer." The defendant also told Corriveau that he was keeping the .38 caliber gun and that Corriveau should get rid of the .22 caliber gun he had used in the shooting.

Szalay testified that the two guns were housed in a safe at Corriveau's home, and that Corriveau and the defendant handled both guns the same night the shooting occurred. Corriveau put the .22 caliber gun in the glove box of the car Szalay drove to Haverhill for the purpose of scaring the victim in order to "get the percocets for free"; Corriveau later transferred the gun into his jacket before they approached the victim.

The defendant was indicted on the charge of "harbor[ing], conceal[ing], maintain[ing] and/or assist[ing]" his codefendants with the intent to "avoid or escape detection, arrest, trial or punishment" for "armed robbery and assault and battery with a dangerous weapon" (accessory after the fact). See G. L. c. 274, § 4. He does not argue that the evidence presented to the grand jury was insufficient to establish probable cause that he had committed the crime. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Nor does he argue that the evidence presented at trial was insufficient to prove that he "'[knew] the identity of the principal perpetrator[s] and [had] knowledge of the "substantial facts of the felonious crime" that the principal[s] committed' and, possessed of such knowledge, aid[ed] the principal[s] in avoiding punishment." Commonwealth v. Hoshi H., 72 Mass. App. Ct. 18, 21 (2008).

The defendant's argument is, rather, that, while the grand jury heard evidence of only one method of committing the crime, that is, helping to clean up the blood from the car, the petit jury also heard evidence that the defendant had told Corriveau to get rid of the gun and Szalay to "dummy up and get a lawyer." In addition, during deliberations, the petit jury's questions indicated that at least one juror, and possibly others, were considering the advice to get rid of the gun as a potential theory of the case. The judge responded that "the major focus of the Commonwealth's charge" was evidence "relating to the defendant cleaning the car," but also told the jurors, over the defendant's objection, that they could consider the advice to get rid of evidence as a basis for finding the defendant guilty of being an accessory. In addition, the judge gave a specific unanimity instruction, that is, that all of the jurors had "to agree at least as to one type of assistance . . . there has to be at least agreement as to one aspect of it."

Later, the judge reminded the jury that the Commonwealth was required to "prove beyond a reasonable doubt that the defendant personally assisted the perpetrator or perpetrators of the crime by rendering one or more of the perpetrators aid."

This issue is controlled by this court's holding in Commonwealth v. Clayton (No.1), 63 Mass. App. Ct. 608 (2005), a statutory rape case where the grand jury heard evidence "only of acts of unnatural sexual intercourse." Id. at 610. At trial, there also was evidence of "natural" sexual intercourse. Ibid. We said,

"The flaw in the defendant's logic is his confusion of the role of the grand jury in indicting and that of the
petit jury in deciding whether the Commonwealth has proved that the defendant committed the crime in the indictment. To comply with art. 12 due process requirements, the Commonwealth need not present to the grand jury evidence of each theory under which the defendant may be found guilty at trial of the crime for which he is indicted. We have never required that there be an exact match between the evidence presented at trial and that presented to the grand jury. It suffices that at trial the Commonwealth presented sufficient evidence to establish statutory rape under each theory of prohibited intercourse. . . . See Commonwealth v. Fuller, 421 Mass. 400, 412 (1995) (where crime can be committed in any one of several ways, defendant may be convicted if it is proved he committed crime in any one of those ways)."

Id. at 612 (citations omitted). See Commonwealth v. Berry, 63 Mass. App. Ct. 910, 912 (2005) (There was no requirement that there "be an exact match of evidence between the evidence presented to the grand jury and the evidence presented at trial"). We see no error.

The defendant's citations to Commonwealth v. Barbosa, 421 Mass. 547 (1995), and Commonwealth v. Smith, 459 Mass. 538 (2011), do not help him. In Barbosa, supra at 550, evidence of two separate drug transactions was presented to the grand jury "and yet [the grand jury] returned only one count." In Smith, supra at 543, the grand jury returned an indictment on a single charge of armed home invasion; neither the victim nor the home was specified. At trial, the prosecutor offered evidence of two separate home invasions at different locations with different victims. See ibid. In each case, the court concluded that the conviction must be reversed, because there was "a substantial risk that the defendant was convicted of a crime for which he was not indicted by a grand jury." Barbosa, supra at 554. Smith, supra at 543. See art. 12 of the Massachusetts Declaration of Rights which "requires that no one may be convicted of a crime punishable by a term in the State prison without first being indicted for that crime by a grand jury." Id. at 544. In the present case, although there were different theories offered, the defendant was indicted and convicted of the same crime.

Motion for new trial. In support of his motion for a new trial, the defendant filed an affidavit, alleging that he told his trial attorney that Corriveau, who had tendered a guilty plea in the same court room immediately before the defendant's trial began, was willing to "tell the jury [Corriveau] was the one who had cleaned the blood from the seat," not the defendant.The attorney did not call Corriveau as a defense witness. In his affidavit, the defendant also asserted that he "did not tell anyone to lawyer up or to get rid of a gun." He argues that failing to call Corriveau as a trial witness was "manifestly unreasonable."

In support of his motion for a new trial, the defendant also filed an affidavit from Corriveau, in which Corriveau took sole responsibility for cleaning the blood from the car's back seat before the defendant arrived, and asserted that the defendant never told anyone to "lawyer up."

The trial judge found Corriveau's affidavit not credible because the "proffered testimony dramatically differ[ed] from the facts he admitted to during his plea colloquy," and, further, that Corriveau's willingness to testify was not corroborated either by his trial counsel, or the defendant's trial counsel. In the judge's view, it was unlikely that Corriveau "would have risked a perjury charge and volunteered to testify for" the defendant.

In addition, the judge concluded that trial counsel's tactical decision not to call Corriveau as a witness was reasonable, using instead other evidence to attack Szalay's testimony and thereby "distanc[ing]" the defendant from Corriveau (because of Corriveau's extensive criminal record and the fact that he was the "principal wrongdoer"). The judge determined that the jury likely would have disbelieved Corriveau and "cast [the defendant] in a bad light given his association with Corriveau"; thus, harming, rather than helping, the defendant's chance of success at trial.

"On a motion for a new trial, the judge may rule on the motion 'on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits.'" Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004), quoting from Mass.R.Crim.P. 30(c)(3), 378 Mass. 900 (1979). "Assessment of whether the motion and supporting materials suffice to raise a 'substantial issue' involves consideration of the seriousness of the issue itself and the adequacy of the showing that has been made with respect to that issue." Goodreau, supra. We review the judge's denial of the motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Robideau, 464 Mass. 699, 702 (2013) (citation omitted).

The strategic or tactical decision to call a witness "reflect[s] the unique training and professional experience which are the province of the attorney." Commonwealth v. Hernandez, 63 Mass. App. Ct. 426, 431 (2005). Here, we see no error in the judge's determination that it was unlikely that Corriveau, in fact, would have testified for the defendant as proffered. Nor do we see error in the judge's determination that, even if he did, trial counsel was not ineffective for failing to call a witness with a substantial criminal record who recently had made inconsistent statements under oath before the same judge. See Commonwealth v. Garvin, 456 Mass. 778, 796 (2010).

Judgment affirmed.

Order denying motion for new trial affirmed.

By the Court (Kantrowitz, Kafker & Hanlon, JJ.),

The panelists are listed in order of seniority.
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Clerk Entered: June 16, 2015.