Opinion
12-P-472
12-31-2014
COMMONWEALTH v. ANTOINE RICHARDSON.
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
On appeal from his conviction as a youthful offender on a charge of motor vehicle homicide, the defendant contends that he received ineffective assistance of counsel at his trial. Specifically, he contends that counsel's stipulation to the admission in evidence of the victim's death certificate fell measurably below the standard expected of an ordinary fallible lawyer and that he was deprived of an otherwise available substantial ground of defense as a result. We discern in the defendant's argument no cause to disturb the judgment.
As a threshold matter, we observe that the defendant asserts his claim of ineffective assistance on direct appeal, without the benefit of any additional support he might have developed through the vehicle of a motion for a new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). Consequently, the defendant can point to nothing beyond speculation to support his contention that, but for the stipulation, the Commonwealth would have been unable to establish the cause of the victim's death by alternative means. Nothing in the trial record suggests that the cause of the victim's death was a disputed issue at trial, or that cross-examination of the medical examiner would have cast doubt on the question. There is likewise nothing in the record to suggest that trial counsel's agreement to the stipulation was not based on strategically sound considerations, so as to focus the attention of the judge (the finder of fact in this jury-waived trial) on the defense theory that the accident was caused by road or weather conditions (and not reckless operation), rather than on an implausible suggestion that the crash did not cause the victim's death. In any event, even if trial counsel had refused to stipulate to the admission of the death certificate, from the trial record it appears likely that the trial judge would have allowed Commonwealth's request for a brief continuance in order to permit the medical examiner (who was called away to attend to a "serious health problem" of her mother's, requiring hospitalization) to appear at trial.
Indeed, as the Commonwealth observes, the death certificate was largely corroborative, if not cumulative, of other evidence at trial tending to show that the victim (who was taken from the scene of the crash by ambulance, and died shortly thereafter) died as a result of the crash.
We note that trial counsel agreed to such a continuance, and the defendant raises no contention that his cooperative stance on the Commonwealth's request for a continuance constituted ineffective assistance.
On the present record, the defendant has established neither prong of the familiar Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Accordingly, his claim of ineffective assistance fails.
Judgment affirmed.
By the Court (Kantrowitz, Green & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 31, 2014.