By the Court (Meade, Hanlon & Maldonado, 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
Following a jury trial, the defendant, Miguel Medina, was convicted of possession of a Class C substance, with the intent to distribute, and trafficking in cocaine. The defendant filed a motion for a new trial, alleging that he received ineffective assistance of counsel. The motion judge, who was also the trial judge, denied the motion without an evidentiary hearing. The defendant appealed. For the following reasons, we affirm.
Background. Prior to trial, defense counsel filed a motion to suppress items seized during a warrantless search of the defendant's residence, contending that the defendant's girl friend, Elizabeth Torres, who lived in the apartment with him and her children, did not voluntarily consent to the search. A judge denied the motion to suppress after a hearing. The defendant now contends that counsel was ineffective for failing to argue that Torres lacked the authority to consent to the search of two dressers that were located in the bedroom she shared with the defendant and where the contraband was found.
The judge who heard the motion for new trial (not the judge on the motion to suppress) made the following findings. On May 9, 2013, detectives from the Lowell police department visited the defendant's home after receiving a report that he had solicited a fifteen year old girl for sex and offered to pay her to sell drugs for him. The defendant and Torres were both home.
The defendant was arrested and taken to the police station and, in his absence, Torres consented to a search of the home. She told the police that if there were drugs in the residence, they could be found in the basement or in the bedroom she shared with the defendant. Torres remained in the kitchen with a detective while other detectives went upstairs to search the bedroom.
The bedroom contained a queen-sized bed and four dressers. The police found contraband in the drawers of two of the dressers. One of the dressers had the defendant's wallet on top of it; the other dresser had contraband in a drawer that also contained men's clothing. The officers did not inquire as to whether Torres had access to the dressers; nor is there evidence that Torres informed the police that two of the dressers in the bedroom belonged to the defendant.
Where police "possess sufficient facts to form the basis for a reasonable conclusion that a third party has authority to give consent to enter a defendant's home," they are not required to inquire further about whether the third party has actual authority to consent to the search. Commonwealth v. Santos, 465 Mass. 689, 695 (2013). See Commonwealth v. Gray, 465 Mass. 330, 342-343 (2013).
In support of the motion for a new trial, the defendant offered affidavits from trial counsel, himself, and Torres. Trial counsel's affidavit stated that she considered whether to argue that Torres did not have the authority to consent to the search of the dressers, but believed that this argument would weaken her primary argument that the search was not voluntary. In their affidavits, both the defendant and Torres claimed that the searched dressers belonged exclusively to the defendant, that Torres did not put any of the defendant's clothes away in his dressers, that she kept her own clothes in different dressers and, finally, that Torres did not have permission to access the defendant's dressers. Except for the statements that Torres stored her clothes separately from the defendant, the judge did not credit the two affidavits, and she denied the defendant's motion for a new trial without an evidentiary hearing. This appeal followed.
Trial counsel also stated that the "basis of [her] decision" was the fact that the defendant "was not listed as a person living in the house -- and he had not signed the lease."
Discussion. When a defendant files a motion for a new trial based on a claim of ineffective assistance of counsel, the burden is on the defendant to show that counsel's behavior fell below the standard of an ordinary fallible lawyer and that this has "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). In deciding a motion for a new trial, "[t]he credibility, weight, and impact of the affidavits in support of the motion are entirely within the judge's discretion." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997). "[T]here was no requirement that the judge hear oral testimony in support of the affidavits; [she] was free to choose the procedure by which [she] would consider the motion." Commonwealth v. DeChristoforo, 360 Mass. 531, 543 (1971).
Where, as here, a claim of ineffective assistance of counsel is raised based on defense counsel's strategic choices, "the defendant must demonstrate that defense counsel's tactical judgment was manifestly unreasonable." Commonwealth v. Finstein, 426 Mass. 200, 203 (1997). Because the voluntariness of a search is a question of fact, Commonwealth v. Angivoni, 383 Mass. 30, 33 (1981), the credibility of the witnesses, including Torres, was paramount. Where the judge who heard the suppression motion found that "[s]ome of the factors suggesting involuntariness were present in this case to a degree," we cannot say that it was manifestly unreasonable for trial counsel to focus on voluntariness, rather than electing to raise the more narrow issue of Torres's authority to consent to a search of the dressers.
Moreover, even if trial counsel's choice was informed by her misunderstanding of the law and not purely a tactical decision, "in order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful." Commonwealth v. Comita, supra at 91. Therefore, we turn to the question whether a suppression motion, based on the theory that Torres lacked authority to consent to a search of the two dressers, would have been granted.
The Commonwealth did not dispute that the defendant had an expectation of privacy in the home and that a search, in the constitutional sense, occurred.
In a situation where the police enter a home without a search warrant and there are no exigent circumstances, the Commonwealth has the burden of proving "that the entry was reasonable because it had the consent of a person with actual or apparent authority over the room." Commonwealth v. Porter P., 456 Mass. 254, 262 (2010). A cohabitant who shares an apartment with another person, "just as an ordinary married couple would[,] . . . [has] presumptively lawful access to all parts of the apartment and its contents." Commonwealth v. Noonan, 48 Mass. App. Ct. 356, 362 (1999). However, there may be limits to a cohabitant's ability to consent to a search.
"[A]n occupant may have been excluded specifically from a particular part of the premises and so could not properly search it or give consent to its search." Ibid. For example, "[e]ven if a coinhabitant of the home had actual authority to consent to a search of the home, the consent would not extend to a closed suitcase, overnight bag, or gym bag located inside the home that did not belong to the coinhabitant." Commonwealth v. Porter P., supra at 265-266 n.11.
Here, because Torres and the defendant shared the apartment and bedroom as a couple, Torres had "presumptively lawful access" to the contents of the apartment. Torres told police that if there were drugs in the home, they would be found in the upstairs bedroom or the basement, and she consented to a search of the bedroom. Unlike the case of Commonwealth v. Magri, 462 Mass. 360, 366 (2012), where a cotenant identified two bags in her bedroom as belonging to the defendant, there is no evidence here that Torres told the police that the two dressers belonged exclusively to the defendant. Furthermore, the dressers were unlocked and gave the appearance of being accessible to both the defendant and Torres. See Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 94 (2010) (mother's consent to search of son's bedroom was valid where son "had never limited her access to his bedroom"). Indeed, on the night of the arrest, when police were taking the defendant away, Torres retrieved a shirt for the defendant, giving further support to the inference that she had access to the dressers where his clothing was stored. Contrast Commonwealth v. Noonan, supra at 363-362 ("the instant record suggests an understanding that one bureau in the apartment was reserved to the defendant alone").
The only evidence of the defendant's exclusive access to the dressers came from the affidavits of the defendant and Torres, which the new trial motion judge, within her discretion, rejected in relevant part. See Commonwealth v. Pingaro, 44 Mass. App. Ct. at 48. Accordingly, a motion to suppress based on the theory that Torres lacked the authority to consent to the search of the two dressers would likely have been unsuccessful. Therefore, trial counsel's failure to pursue suppression on that ground did not fall below the standard of an ordinary, fallible lawyer, see Commonwealth v. Howell, 394 Mass. 654, 658 (1985), quoting from Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) ("[i]t is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success"), and the judge did not abuse her considerable discretion in denying the defendant's motion for a new trial.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Meade, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: August 1, 2017.