Opinion
No. 15–P–8.
12-19-2016
COMMONWEALTH v. Jonald PAUL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jonald Paul, appeals from his conviction by a Superior Court judge of assault and battery by means of a dangerous weapon causing serious bodily injury in violation of G.L. c. 265, § 15A. The defendant raises two arguments: (1) that the late disclosure of the Commonwealth's witness's recantation materially prejudiced the defendant; and (2) that defense counsel's failure to request a continuance and failure to call the recanting witness to testify for the defendant constituted ineffective assistance of counsel. We affirm.
1. Late disclosure. Trial counsel did not request a continuance or seek any other remedy after learning that one of the witnesses listed on the Commonwealth's witness list and in the police reports, Zachary Winn, recanted his previous statement to the police that he saw the defendant assault the victim. We therefore review for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 293–296 (2002).
The defendant fails to demonstrate how evidence of Winn's recantation, if disclosed earlier, would have aided him "in preparing and presenting" his case. Commonwealth v. Molina, 454 Mass. 232, 236 (2009), quoting from Commonwealth v. Wilson, 381 Mass. 90, 114 (1980). Winn's recantation was relevant to the defendant's argument that friends of the victim may have been biased. Evidence of bias was elicited by the defense on cross-examination of Officer Florio and emphasized in the defendant's closing argument. Additionally, the defendant had the opportunity to inquire about potential bias through extensive cross-examination of the Commonwealth's remaining percipient witness, Melanie Oberto.
The Commonwealth's disclosure of Winn's recantation, if late, did not create a substantial risk of a miscarriage of justice in light of the evidence at trial and the ability of the defendant to pursue his defense of bias during cross-examination.
The record is unclear on whether the disclosure was timely.
2. Ineffective assistance of counsel. The defendant argues that he received ineffective assistance of counsel where counsel did not ask for a continuance after the late disclosure of Winn's recantation and counsel did not call Winn as a witness for the defendant to impeach the credibility of Oberto.
The defendant filed a posttrial motion for funds to conduct an investigation for a motion for a new trial, which was allowed, but did not file a motion for a new trial.
Generally, "[t]o prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's conduct fell ‘measurably below that which might be expected from an ordinary fallible lawyer.’ " Commonwealth v. Lane, 462 Mass. 591, 596 (2012), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). However, "when a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel, as this defendant has, we do not evaluate the ineffectiveness claim separately." Randolph, supra at 296. We review whether counsel's error gives rise to a substantial risk of a miscarriage of justice. Commonwealth v. Russell, 439 Mass. 340, 345 (2003).
Here, we have determined that the Commonwealth's disclosure of Winn's recantation did not create a substantial risk of a miscarriage of justice. Therefore, we need not address the defendant's ineffective assistance claim that stems from the Commonwealth's disclosure. See Randolph, supra.
Judgment affirmed.