NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-683
COMMONWEALTH
vs.
JOSE BALCACER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his second motion
for a new trial, and a related motion for postconviction
discovery, with respect to his 2015 convictions for drug
trafficking. He presses several arguments for why a new trial
is warranted, but primarily contends that (1) newly discovered
evidence, which he claims the Commonwealth improperly withheld,
casts doubt on his convictions, (2) the Commonwealth elicited
false testimony from a trial witness, and (3) the defendant's
previous attorneys rendered ineffective assistance at trial, and
on a prior appeal before this court. We affirm.
Background. The defendant was convicted of two counts of
heroin trafficking in May 2015. In affirming the denial of the
defendant's first motion for a new trial, this court described the underlying facts as follows (quoting the decision of the
motion judge).
"The charges ar[o]se out of the planned controlled purchase of a half-kilogram of heroin, the arrest of the [defendant] and co-defendant Robert Navarro ('Navarro'), the seizure of heroin intended for the controlled purchase, the search of the [defendant]'s person and vehicle, the execution of two search warrant[s] [] at 2 McIntyre Court, Peabody (the 'premises'), and seizure of additional heroin. A regional drug task force used a confidential informant (the 'CI') to set up a series of controlled purchases from Navarro. On October 16, 2013, after three earlier controlled purchases and provision to the CI of two 'samples' of heroin, [the defendant] and Navarro drove together from 2 McIntyre Court to Macys in the North Shore Mall, the agreed-upon meeting place for the next controlled purchase. [The defendant] drove a white Mitsubishi registered to his wife (the 'Mitsubishi').[] They walked into the store together, and split while Navarro met with and showed the CI the contents of a shopping bag that appeared to be the agreed-upon half-kilo of heroin. Upon a signal from the CI and observation of a brief verbal exchange between Navarro and [the defendant], officers arrested Navarro, confirmed the contents of the shopping bag found at his feet, and then arrested [the defendant], a short distance away in the same section of Macys. The substance recovered from the shopping ba[g] was later tested and found to be heroin . . . .
"During a search of [the defendant]'s person incident to his arrest, a set of keys was seized from his front pants pocket ('first set of keys'). Officers immediately responded to the white Mitsubishi, which [the defendant] and Navarro had left in the parking lot before entering Macys. The vehicle was unlocked and officers entered the vehicle and found a second set of keys in the center console ('second set of keys'). Officers then took the two sets of keys and went [to] the premises (i.e., 2 McIntyre Court). The first set of keys contained a key that opened the door to the second floor apartment, which police had earlier established to be [the defendant]'s residence. The second set of keys contained separate keys that opened the second floor apartment and the first floor apartment.
2 "A search warrant was obtained to search the first and second floor apartments at the premis[]es. No potential evidence was seized under the warrant from the second floor apartment. Over 100 grams of heroin, scales, a kilo press, cutting agent, and packaging materials were seized under the warrant from the first floor apartment. The substance recovered from the first floor apartment was later tested and found to be heroin . . . ." The defendant appealed his conviction and, in May 2018,
filed his first motion for a new trial. A Superior Court judge
(who was not the trial judge) denied the motion without an
evidentiary hearing. The defendant appealed, and this court
consolidated the defendant's two appeals. In that first
consolidated appeal, the defendant primarily argued that he
received ineffective assistance of counsel because defense
counsel did not, among other things, move to dismiss the
defendant's indictments based on purportedly false grand jury
testimony. He also argued that the "Commonwealth elicited
improper expert testimony, the prosecutor's . . . closing
argument created a substantial risk of a miscarriage of justice,
and the judge erred in denying his motions to suppress
evidence." A panel of this court rejected those arguments in an
unpublished decision.
In September 2021, the defendant filed a second motion for
a new trial and a related motion for postconviction discovery,
the denials of which are the subject of the present appeal. The
defendant raised a host of arguments, primarily falling into
three categories. First, he made several arguments related to
3 one Sergio Hernandez, a former tenant of the first-floor
apartment at 2 McIntyre Court, who did not testify at trial.
The defendant presented an affidavit from Hernandez in which
Hernandez avers that he was a tenant in the first-floor
apartment until three to four weeks before the defendant's
arrest, that he saw no evidence of drug dealing during his time
in the apartment, and that he told this to a prosecution
interviewer prior to trial. The defendant claimed (1) that this
evidence was "newly discovered," (2) that the Commonwealth
withheld this exculpatory evidence regarding Hernandez, and (3)
(alternatively) that defense counsel rendered ineffective
assistance by not calling Hernandez at trial. Second, the
defendant argued that the Commonwealth knowingly elicited
perjury from a trial witness, Drug Enforcement Agency special
agent Glen Coletti. Finally, the defendant raised several
additional claims of ineffective assistance of his trial counsel
and prior appellate counsel. A different Superior Court judge
(who also was not the trial judge) denied the defendant's
motions without an evidentiary hearing.
Discussion. On appeal, the defendant presses the same
arguments made in his second new trial motion. "Where, as here,
the motion judge did not preside at trial, and no evidentiary
hearing was held, we 'examine [his] conclusion only to determine
whether there has been a significant error of law or other abuse
4 of discretion,' although we 'regard ourselves in as good a
position as the motion judge to assess the trial record'"
(citation omitted). Commonwealth v. Jackson, 468 Mass. 1009,
1010 (2014). We note at the outset that many of the defendant's
arguments pertain to alleged trial errors as to which there was
no objection, or which were not raised in the defendant's prior
postconviction proceedings. For these matters, "we review to
determine whether there was error and, if so, whether the error
created a substantial risk of a miscarriage of justice."
Commonwealth v. Ahern, 96 Mass. App. Ct. 197, 202 (2019). See
Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).
1. Newly discovered evidence. The defendant first
contends that a new trial is warranted because Hernandez, who
did not testify at trial, is "newly discovered," and that the
information that Hernandez provided posttrial likely would have
influenced the jury. To prevail on this theory, the defendant
must show "that the evidence was [previously] unknown to [him]
or [his] counsel." See, e.g., Commonwealth v. Pike, 431 Mass.
212, 218 (2000). Here, the motion judge concluded that
Hernandez was known to defense counsel prior to trial, such that
he was not "newly discovered." We agree. In an affidavit
accompanying the defendant's first new trial motion, defense
counsel averred that he "met with Sergio Hernandez" "[p]rior to
5 trial."1 Hernandez's affidavit, signed in September 2021 and
submitted in connection with the second motion for a new trial,
confirms that this meeting took place, and that during that
meeting Hernandez "told [defense counsel] what [was] included in
[Hernandez's 2021] affidavit."
The defendant next highlights Hernandez's averment that,
prior to the defendant's trial, he told a Commonwealth
prosecutor that he had lived at 2 McIntyre Court up until "three
to four weeks" before the defendant's arrest and "never saw any
evidence of drug dealing." The defendant argues that the
Commonwealth's failure to disclose this information violated
both Mass. R. Crim. P. 14 (a), as amended, 444 Mass. 1501
(2012), as well as the constitutional obligation to disclose
known exculpatory information. See Commonwealth v. Sullivan,
478 Mass. 369, 380 (2017), citing Brady v. Maryland, 373 U.S.
83, 87 (1963).
1 Defense counsel did not submit an affidavit in connection with the defendant's second new trial motion. Rather, current appellate counsel submitted an affidavit which stated that, in August 2021, defense counsel told her that "as far as [he] could tell [Hernandez] was unable to be located at the time of trial." The statement is not necessarily inconsistent with defense counsel's prior affidavit, which was made closer in time to the events at issue. Particularly where Hernandez's affidavit confirmed that Hernandez met with defense counsel prior to trial, the motion judge did not err in crediting defense counsel's prior affidavit without holding an evidentiary hearing. See Commonwealth v. Torres, 469 Mass. 398, 403 (2014).
6 The defendant's argument under rule 14 (a) fails, because
there is no indication the Commonwealth had in its possession a
written statement to which rule 14 (a) applies. See
Commonwealth v. Bing Sial Liang, 434 Mass. 131, 137 (2001).
There is no evidence that, for example, the interviewer prepared
an interview memorandum. Hernandez does not claim to have given
a written statement, and the Commonwealth represented in a
verified discovery response that it did not locate a writing.
Turning to the constitutional argument, even assuming that
Hernandez made the subject statements to the prosecution,2 the
defendant has not made the required showing that he was
prejudiced by the purported nondisclosure. See Sullivan, 478
Mass. at 380. Hernandez states in his affidavit that prior to
trial he spoke not only with a Commonwealth interviewer, but
also with defense counsel, and that he told each of them the
same information (included in his affidavit). "The defendant
was in no way prejudiced by the failure of the Commonwealth to
tell him or his counsel what his counsel already knew."
Commonwealth v. Rooney, 365 Mass. 484, 491 (1974). This is
especially so where defense counsel previously averred (in
connection with the first new trial motion) that he met with
2 We express no opinion on this factual issue. The Commonwealth of course has a duty to disclose known exculpatory information in its possession. See Commonwealth v. Rodriguez-Nieves, 487 Mass. 171, 176-177 (2021).
7 Hernandez, but that he nonetheless made the strategic decision
to pursue a defense under Commonwealth v. Bowden, 379 Mass. 472,
485-486 (1980), in which he "focus[ed] on the fact that the
police never looked for [Hernandez]." Cf. Commonwealth v. Diaz,
100 Mass. App. Ct. 588, 589 (2022) (no prejudice "where defense
counsel was already aware of the [nondisclosed evidence] and had
decided not to use it for strategic reasons").
2. False testimony. The defendant next argues that the
Commonwealth knowingly elicited false testimony from a trial
witness, special agent Coletti, who answered "Yes" when asked by
the Commonwealth: "You did see Navarro go in and out of th[e]
front door [of 2 McIntyre Court] every single drug deal that
happened?" The defendant did not object to the question, and he
did not raise this issue in his prior postconviction
proceedings. We therefore review for a substantial risk of a
miscarriage of justice. See Randolph, 438 Mass. at 294;
Commonwealth v. Deeran, 397 Mass. 136, 139 (1986).
The Commonwealth does not contest that Coletti's testimony
was incorrect, as it appears that Coletti himself was never
assigned to surveil the front door of the apartment. The
Commonwealth argues instead that Coletti made an unintentional
misstatement that does not give rise to a substantial risk of
miscarriage of justice. We agree. Notably, there was another
agent who was tasked with surveilling the front door, and that
8 agent testified that he saw an individual matching Navarro's
description enter and exit the apartment close in time to the
relevant drug sales. The evidence accordingly was properly
before the jury. See Commonwealth v. Resende, 476 Mass. 141,
152 (2017). The misstatement itself was brief and isolated.
Cf. Commonwealth v. McGann, 484 Mass. 312, 324 (2020). Nothing
in the record indicates that Coletti's testimony was
intentionally false and elicited as such by the Commonwealth.
And finally, as this court noted in deciding the defendant's
prior appeal, the Commonwealth presented a strong case. See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Given these
considerations, we are convinced that the error did not result
in a substantial risk of a miscarriage of justice.
3. Ineffective assistance of counsel. The defendant also
argues that he is entitled to a new trial because his trial and
prior appellate counsel rendered ineffective assistance.
Notably, the defendant raised ineffective assistance of defense
counsel in his first new trial motion, and those arguments were
rejected by the motion judge, whose decision was affirmed on
appeal. Many of the defendant's current arguments were not
asserted in that first new trial motion, even though they were
"reasonably available" to him. See Deeran, 397 Mass. at 139.
We nevertheless review for a substantial risk of a miscarriage
9 of justice. Commonwealth v. LeFave, 430 Mass. 169, 173-174
(1999).
"Where a motion for a new trial is based on ineffective
assistance of counsel, the defendant must show that (1) the
'behavior of counsel [fell] measurably below that which might be
expected from an ordinary fallible lawyer' and (2) such failing
'likely deprived the defendant of an otherwise available,
substantial ground of defence'" (citation omitted).
Commonwealth v. Tavares, 491 Mass. 362, 365 (2023).
a. Hernandez. The defendant argues that if Hernandez is
not "newly discovered" then defense counsel was ineffective by
not calling him as a witness. The decision whether to call a
witness is strategic, Commonwealth v. Jacobs, 488 Mass. 597, 602
(2021), and "amounts to ineffective assistance 'only if it was
manifestly unreasonable when made'" (citation omitted).
Commonwealth v. Morales, 453 Mass. 40, 44 (2009). Here, defense
counsel averred in connection with the defendant's first new
trial motion that he "deci[ded] that [he] did not need to call
[Hernandez] as a witness and instead" to raise a Bowden defense.
The focus of that Bowden defense was "on the fact that the
police never looked for [Hernandez]," suggesting that Hernandez
was behind the drug operation. Given that strategic decision,
defense counsel reasonably could have concluded that he did not
want Hernandez to testify, as defense counsel could have
10 determined that Hernandez would have "harm[ed] the defendant's
case more than . . . helped it." Jacobs, supra at 603. We are
not convinced that trial counsel's decision was manifestly
unreasonable, let alone that a substantial risk of a miscarriage
of justice resulted. See Randolph, 438 Mass. at 293-295.
b. Motion to suppress. The defendant also claims that
trial counsel provided ineffective assistance by not
challenging, at the motion to suppress stage, the Commonwealth's
reliance on the "collective knowledge doctrine" to support the
warrantless searches of the defendant, the Mitsubishi, and the
apartments at 2 McIntyre Court. Specifically, he argues that
the State trooper who testified at the suppression hearing
lacked "direct knowledge" of some of the circumstances that led
to those searches. Where, as here, a defendant premises "a
claim of ineffective assistance . . . on grounds not raised in a
motion to suppress, the defendant must show that the motion"
likely would have succeeded. See Commonwealth v. Banville, 457
Mass. 530, 534 (2010). See also Commonwealth v. Villalobos, 89
Mass. App. Ct. 432, 442-443 (2016), S.C., 478 Mass. 1007 (2017).3
3 The defendant's primary suppression argument on this appeal is not based upon ineffective assistance of counsel; rather, he argues directly that his motion to suppress should have been granted due to the Commonwealth's purportedly improper reliance on the collective knowledge doctrine. But the defendant did not raise the trooper's lack of "direct knowledge" during the litigation of the motion to suppress or on direct appeal. "Because the defendant did not properly alert the judge to
11 Here, the trooper testified about his direct involvement in
the investigation, relaying that he saw the defendant inside the
Macy's and effected the defendant's arrest; that he was part of
the surveillance team that observed the defendant and the
Mitsubishi on the day of that arrest (and that had seen the car
used in prior drug sales); and that he was present at 2 McIntyre
Court when officers entered the apartment. Additional members
of the surveillance team contemporaneously relayed information
to the trooper (and the rest of the team) via radio, including
that the defendant and Navarro walked into the Macy's together,
that Navarro was carrying a bag, and that Navarro was arrested
after it was discovered that the bag appeared to contain heroin.
Under the circumstances, there was no "collective knowledge"
issue, because the arresting and searching officers had received
all the information necessary to establish probable cause before
their respective actions.4 See Commonwealth v. Privette, 491
Mass. 501, 503 (2023) (aggregation of officers' knowledge
permissible where they are "involved in a joint investigation,
[this] argument, the waiver doctrine precludes him from doing so on appeal." See Commonwealth v. Silva, 440 Mass. 772, 783 (2004). In any event, for the reasons explained infra, we discern no substantial risk of a miscarriage of justice in the denial of the defendant's motion to suppress. See Commonwealth v. Dew, 478 Mass. 304, 309-310 (2017). 4 Nor was the defendant's prior appellate counsel ineffective by
not raising this argument previously. See Commonwealth v. Richard, 398 Mass. 392, 394, cert. denied 479 U.S. 1010 (1986).
12 pursuing a mutual purpose and objective, and . . . in close and
continuous communication with each other about that shared
objective"). Nor was there error in the trooper testifying to
what he heard from others, as "hearsay is admissible in a motion
hearing relating to suppression." See Commonwealth v. Fletcher,
52 Mass. App. Ct. 166, 168 n.2 (2001). Defense counsel
therefore did not render ineffective assistance by not moving to
suppress on those bases. In any event, we are not persuaded
that suppression was likely, as this court has already held that
the searches at issues, on these facts, were supported by
probable cause.
c. Hearsay statements. Next, the defendant faults trial
counsel for not objecting to testimony from police officers that
repeated hearsay statements attributed to Navarro, to another
co-defendant, Junior Carmona, and to the CI. In particular,
officers testified about (1) what they heard Navarro and Carmona
say concerning "the times and locations of" previous controlled
purchases that did not involve the defendant, including "the
quantities of drugs and prices that were negotiated," and (2)
what the CI told officers that Navarro had said leading up to
the October 16 sale about the "price, timing, . . . and exchange
of samples." However, counsel's failure to object did not
prejudice the defendant, primarily because the statements did
not involve or reference the defendant in the prior controlled
13 purchases. Moreover, many of the details about the controlled
purchases were "cumulative of other, properly admitted evidence"
-- that is, testimony from officers who observed the
transactions, provided the CI with funds for the purchases, and
then collected the drugs that were sold to the CI. See Resende,
476 Mass. at 152. Accordingly, and considering this court's
previous determination that the Commonwealth presented a strong
case, "we are not left with 'a serious doubt whether the result
of the trial might have been different'" (citation omitted).
Commonwealth v. Leary, 92 Mass. App. Ct. 332, 346-347 (2017).
d. Prior appellate counsel. Turning to his appellate
counsel, the defendant claims that counsel was deficient by not
raising the Federal constitutional implications of certain of
the defendant's prior appellate arguments. The motion judge
rejected this argument "for the reasons stated in the
Commonwealth's [o]pposition to the [d]efendant's [s]econd
[m]otion for a [n]ew [t]rial," and we agree. The thrust of the
defendant's argument is that prior appellate counsel would have
obtained a better result had he raised the Federal
constitutional implications of (1) a law enforcement agent's
allegedly false testimony to the grand jury; (2) the admission
of allegedly improper expert opinion testimony; and (3) the
Commonwealth's closing argument. However, this court previously
held that those prior arguments were without merit and
14 "unavailing," or otherwise did not evidence a "substantial risk
of a miscarriage of justice." "Because a better result would
not have been obtained had the claims been made under the United
States Constitution, we reject the defendant's argument[s]."
See Commonwealth v. Hardy, 464 Mass. 660, 669 (2013).5
4. Postconviction discovery. Finally, the defendant
separately argues that the motion judge abused his discretion in
denying the defendant's motion for postconviction discovery
regarding Hernandez, other "potentially exculpatory evidence,"
and "[a]ny and all notes . . . that contain any statements from
any witness." Under Mass. R. Crim. P. 30 (c) (4), as appearing
in 435 Mass. 1501 (2001), a judge "may authorize
[postconviction] discovery" where "affidavits filed by the
moving party under [Mass. R. Crim. P. 30] (c) (3) establish a
prima facie case for relief." The motion judge did not abuse
the "broad discretion" he has to decide whether the "defendant
. . . established a prima facie case for relief." Commonwealth
v. Ware, 471 Mass. 85, 94 (2015). First, the Commonwealth
satisfied the defendant's requests concerning Hernandez, stating
5 Given our conclusions above, we find no merit in the defendant's argument that the cumulative effect of the claimed errors warrants a new trial. See Commonwealth v. Hobbs, 482 Mass. 538, 560 (2019). We also conclude that the motion judge did not abuse his discretion in declining to hold an evidentiary hearing. See Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996); Commonwealth v. Stewart, 383 Mass. 253, 259 (1981).
15 in a verified discovery response that "there are no [responsive]
materials in the Commonwealth's file." Nor has the defendant
offered any reason to think that the Commonwealth withheld other
"potentially exculpatory" evidence or witness statements.
Accordingly, he has not made a prima facie showing "that it is
reasonably likely that such discovery will lead to evidence
possibly warranting a new trial." See Commonwealth v. Camacho,
472 Mass. 587, 598 (2015).6
Orders denying motion for a new trial and for postconviction discovery affirmed.
By the Court (Meade, Englander & Grant, JJ.7),
Clerk
Entered: April 21, 2023.
6 We have considered each of the defendant's arguments on appeal. To the extent any of those arguments are not specifically addressed herein, we have not overlooked them, but have determined that they lack merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). 7 The panelists are listed in order of seniority.