Opinion
11-P-1976
12-20-2012
COMMONWEALTH v. DANIEL C. GRIFFIN.
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
The defendant was indicted on multiple counts of assault and assault with intent to murder, as well as firearms violations, following a confrontation with police in which shots were fired. At trial, the defendant argued to the jury that the gun belonged to someone else, that he, like the police, had been a potential target of the shooting, and that he picked up the discarded firearm as a matter of necessity after a struggle. He was acquitted of assault and assault with intent to murder and convicted of one count of unlawful possession of a firearm. In a subsequent bench trial, he was convicted of unlawful possession of a firearm, second offense. On appeal, the defendant claims that counsel was ineffective because counsel conceded that the firearm that was left at the scene was the gun that the defendant was charged with possessing unlawfully. We affirm.
In order to succeed on a 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 counsel's performance 'likely deprived [him] of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 'A strategic decision amounts to ineffective assistance 'only if it was manifestly unreasonable when made." Commonwealth v. Morales, 453 Mass. 40, 44 (2009), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998). The preferred route for raising a claim of ineffective assistance of counsel is through a motion for a new trial. See Saferian, supra at 90 n.1. Here, the claim is made on direct appeal; thus, 'the factual basis of the claim [must] appear [] indisputably on the trial record.' Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Defense counsel's strategic decision was not manifestly unreasonable. The theory of the defense was that the necessity defense applied to all charges. The judge instructed the jury on the defense of necessity as to all counts. The defendant was found not guilty of the most serious charges. The fact that defense counsel deployed a strategy that prevailed with respect to some but not all charges does not constitute ineffective assistance of counsel. See Commonwealth v. Velez, 77 Mass. App. Ct. 270, 278 (2010) (trial strategy which deliberately focused on acquittal of most serious offenses is not ineffective).
Moreover, there is no factual basis appearing plainly in this record to suggest that the 'attorney's tactical decision . . . was manifestly unreasonable when made.' Commonwealth v. Stone, 70 Mass. App. Ct. 800, 808 (2007), quoting from Commonwealth v. Martin, supra. There was no dispute at trial that the defendant had a gun. The defendant acknowledged that he had picked up a gun. Even if the gun itself had been somehow excluded, there was testimony of witnesses who saw the defendant with a gun. However, there was evidence from which a jury could have concluded that this particular firearm was jammed, a conclusion that would have constituted a complete defense. Accordingly, we 'do not second-guess 'arguably reasoned tactical or strategic judgments" of trial counsel. Commonwealth v. Stone, supra, quoting from Commonwealth v. DeLong, 60 Mass. App. Ct. 122, 131 (2003). Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
Officer Carpenter testified that Officer Dara was assigned to keep an eye on the gun at all times until it could be secured.
Judgment affirmed.
By the Court (Green, Graham & Sullivan, JJ.),