Opinion
10-P-1572
11-21-2011
COMMONWEALTH v. PAUL JOHNSON.
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 convicted of unlawful possession of a firearm. He appeals, arguing that his motion for a new trial improperly was denied. We affirm.
Background. The principal issue at trial was whether the defendant knew that there was a firearm in a bag that he had left in the custody of a hotel employee. The defense was that the defendant was a family man and music business executive, in Boston for a business trip, and that he did not know the firearm was in the bag when he left it with the employee. The defendant claims ineffective assistance of counsel, arguing that counsel should have presented evidence that the defendant was intoxicated as a result of ingesting drugs and alcohol, thus preventing him from forming the necessary intent to possess the firearm.
The defendant's alleged intoxication first was raised in his affidavit filed in conjunction with his motion for a new trial.
In a thoughtful decision, the judge rejected this claim and denied the motion.
Discussion. We review the judge's denial of a motion for a new trial for abuse of discretion. Commonwealth v. Moore, 408 Mass. 117, 125 (1990). The defendant argues that the judge abused his discretion in finding that trial counsel's decision not to present evidence of the defendant's intoxication was not manifestly unreasonable.
The defendant's knowledge was the only issue at trial and 'a defendant's mental condition and any effects of the consumption of drugs, including alcohol, may be considered whenever the Commonwealth has the burden of proving the defendant's . . . knowledge.' Commonwealth v. Sires, 413 Mass. 292, 299 (1992).
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To succeed upon 'a claim of ineffective assistance of counsel, the defendant must show that 'there [was] serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defen[s]e." Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 315 (2011), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We agree with the judge that trial counsel's strategy was not manifestly unreasonable. Thus, the defendant has failed to satisfy the first prong of the Saferian test and, therefore, we need not consider the second prong.
The defendant chose to present as a defense that he was a music business executive in Boston, in furtherance of his occupation, and a family man, with children. This 'gentleman' defense is inconsistent with the defendant's argument that his counsel should have presented (cumulatively, or alternatively) evidence of the defendant's drug and alcohol intoxication in an effort to negate the element of intent.
The defendant states in his affidavit that he 'felt confident that [trial counsel] knew what he was doing and we were sure to win' until the jury returned its verdict. A trial strategy is not manifestly unreasonable simply because it is unsuccessful. Commonwealth v. Bol Choeurn, 446 Mass. 510, 521 (2006). Because '[t]he defendant has failed to show that counsel's performance was substandard[,]' Commonwealth v. Morales, 453 Mass. 40, 48 (2009), the judge properly denied the motion for a new trial.
Order denying motion for new trial affirmed.
By the Court (Mills, Milkey & Carhart, JJ.),