Opinion
14-P-212
04-13-2015
COMMONWEALTH v. DENNIS MCDONALD.
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 in District Court, the defendant was convicted of assault by means of a dangerous weapon (a knife). In this appeal from his conviction, he argues that his trial counsel provided ineffective assistance in two respects. We affirm.
The defendant previously had been convicted of larceny based at least in part on the testimony of Abdul Fatah, his former boss. That conviction led to an order that the defendant pay restitution to Fatah. In the case before us, Fatah testified that on October 23, 2012, he was at a garage in Milford where his car had been towed. According to Fatah, the defendant approached him there in a rage and drew a knife and thrust it at him. The defendant testified to a somewhat different version of the events. According to him, upon running into Fatah at the garage, he became angry when Fatah smiled at him and went to shake his hand; he thereafter "started yelling at [Fatah]" and "got up in [Fatah's] face"; he drew his knife only after he felt threatened by Fatah's comment to him, "You're an old man[;] I can hurt you"; and he started backing away as soon as he pulled the knife out, intending to use the knife only if Fatah attacked him (which did not occur).
The tow truck driver who had brought Fatah's car to the garage witnessed the altercation, but he did not testify at trial. The responding police officer testified without objection that after he arrived at the scene, he spoke with all three men and then arrested the defendant. The defendant argues that even though the officer did not relay to the jury what the tow truck driver told him, the officer's testimony nevertheless left the jury with the impression that the driver must have corroborated Fatah's version of the events. Based on this, the defendant argues that his trial counsel provided ineffective assistance by not objecting to such testimony (and not objecting to a preview of that testimony that the prosecutor gave in his opening statement).
In his opening, the prosecutor told the jury that they would "hear from [the responding officer] very shortly and he's going to tell you that he did speak to the tow truck driver, who did give him a statement, but that that driver lives in the state of New Hampshire and, if you will, is, frankly, unavailable to the Commonwealth today to be here." The record does not indicate that the prosecutor ever raised with the trial judge that he planned in his opening statement to refer to an out-of-court statement that an absent witness had made and to inform the jury that the witness was unavailable.
To prevail on a claim of ineffective assistance of counsel, a defendant must prove (1) that counsel's behavior fell "measurably below" the standard for an "ordinary fallible" lawyer, and (2) that the behavior likely deprived the defendant of a "substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The Supreme Judicial Court has equated the second prong to a showing that counsel's actions created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002), and cases cited. Where, as here, a defendant seeks to prove ineffective assistance on direct appeal, the ineffectiveness must appear "indisputably" on the trial record. Commonwealth v. Zinzer, 446 Mass. 807, 811 (2006) (internal quotation marks omitted).
The defendant's claim that his counsel should have objected to the testimony about the officer speaking with the tow truck driver is not without some force. We need not decide whether the defendant has satisfied the first prong of Saferian based on this contention, because we conclude that in any event he has failed to satisfy the second. The defendant's own testimony established that he was the instigator of the heated argument at the garage and that -- despite manifest opportunities to avoid engagement and to disengage -- he drew a knife on Fatah based only on Fatah's alleged comment, "You're an old man[;] I can hurt you." Notably, the prosecutor made no reference to the officer's conversation with the tow truck driver in his closing statement, nor did he even challenge the defendant's claim as to what Fatah may have said. Instead, he argued with great force that the defendant's own testimony established the elements of the charge and negated any claim of self-defense. In these circumstances, the officer's testimony that he interviewed the tow truck driver before arresting the defendant did not create a substantial risk of a miscarriage of justice. It therefore could not support a claim of ineffective assistance of counsel.
The defendant concedes that at least some of the evidence establishing the prior history between him and Fatah was properly admitted. Nevertheless, he argues that his counsel provided ineffective assistance by otherwise not taking steps to mitigate such evidence, e.g., by not requesting an instruction limiting the jury's consideration of his prior conviction. In fact, the defendant himself sought to make significant use of the evidence regarding his past relationship with Fatah. For example, he used the occasion to put forth his claim that the conviction was based on Fatah's false testimony, thus seeking to explain why he reacted as he did. Again, even if his counsel should have requested an instruction cautioning the jury against using the prior conviction as evidence of the defendant's propensity to commit a crime, we conclude that the defendant has not shown a substantial risk of a miscarriage of justice warranting reversal of his conviction on the basis of alleged ineffective assistance of counsel.
Judgment affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 13, 2015.