Opinion
11-P-2074
11-12-2014
COMMONWEALTH v. JACQUELINE AMICO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Jacqueline Amico, was convicted of two counts of criminal harassment. In this consolidated appeal from the judgments and from the denial of her motion for new trial, she claims that trial counsel's failure to bring witnesses to the trial, interview proposed witnesses, prepare the defendant to testify at trial, challenge a prospective juror, and seek recusal of the trial judge, deprived the defendant of her constitutional right to effective assistance of counsel. We affirm for substantially the reasons set forth by the trial judge and by the Commonwealth in its brief, adding the following observations.
The defendant makes no separate argument with respect to her direct appeal.
1. Ineffective assistance of counsel. To prevail on her claim of ineffective assistance of counsel, the defendant must establish that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and that because of this, she was likely deprived 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." Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 280 (2014), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
The defendant's numerous vague and general challenges to trial counsel's representation are unsupported by citations to the record. Accordingly, her assertions do not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Moreover, the defendant's complaints center around trial strategy, but are unsupported by affidavits of trial counsel or of any of the forty-five witnesses (besides her husband) she claims could usefully have been called to testify on her behalf. See Commonwealth v. Lynch, 439 Mass. 532, 539 n.2 (2003); Commonwealth v. Ortega, 441 Mass. 170, 178-179 (2004); Commonwealth v. Vasquez, 55 Mass. App. Ct. 523, 533 (2002).
2. Denial of the motion for a new trial without an evidentiary hearing. We review the denial of a motion for new trial for an abuse of discretion, giving special deference to a motion judge who, as here, was also the trial judge. Commonwealth v. Rice, 441 Mass. 291, 302-303 (2004). An evidentiary hearing on a motion for new trial is only required "if the motion and affidavits raise a substantial issue." Commonwealth v. Britto, 433 Mass. 596, 608 (2001). See Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001).
The motion judge had the benefit of presiding over the trial and observing counsel's performance. He was also free to decide what weight, if any, to give to the self-serving affidavits of the defendant and her husband. See Commonwealth v. Denis, 442 Mass. 617, 633 (2004). There was no error in declining to conduct an evidentiary hearing on the motion for new trial.
3. Conclusion. Because "[t]he defendant has not shown that 'better work might have accomplished something material for the defense,'" the trial judge did not abuse his discretion in denying the motion for a new trial. Commonwealth v. Thomas, 399 Mass. 165, 170 (1987), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Wolohojian & Blake, JJ.),
Clerk Entered: November 12, 2014.