Opinion
21-P-545
11-07-2022
COMMONWEALTH v. DENNIS SENA.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant was convicted by a Suffolk Superior Court jury of assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A (c) (i), and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). After a jury-waived trial, the defendant was also found guilty of being a habitual offender on both counts. A different panel of this court affirmed the defendant's convictions in an unpublished decision issued in October 2017. Commonwealth v. Senna, 92 Mass.App.Ct. 1111 (2017). In September 2020, the defendant filed a motion for a new trial based on ineffective assistance of appellate counsel. After a nonevidentiary hearing, the motion judge, who was not the trial judge, denied the motion. The defendant now appeals from that denial. We affirm.
The jury acquitted the defendant of one count of willful and malicious injury to personal property with a value over $250, G. L. c. 266, § 127.
Discussion.
We review a judge's decision on a motion for new trial claiming ineffective assistance of counsel for abuse of discretion or other error of law. See Commonwealth v. Alvarez, 433 Mass. 93, 101 (2000).
"Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant." Commonwealth v. Montez, 450 Mass. 736, 755 (2008) . "The standard for determining ineffective assistance of appellate counsel is the same standard set forth in Commonwealth v. Saferian, 366 Mass. [89, 96 (1974)]." Commonwealth v. Aspen, 85 Mass.App.Ct. 278, 281 (2014). "When assessing whether appellate counsel's behavior fell below the standard of an ordinary, fallible lawyer, we focus on whether appellate counsel 'failed to raise a significant and obvious issue . . . which . . . may have resulted in a reversal of the conviction, or an order for a new trial" (citation omitted) . I_d. at 282.
1. Expert testimony.
The defendant first claims that appellate counsel was ineffective for failing to argue that the trial judge erred by precluding his expert witness from testifying because the disclosure of the expert's testimony was untimely. The problem with this claim, however, is that the panel who decided the defendant's direct appeal, while finding the expert issue to be waived, nonetheless noted that the judge "was properly within her discretion to exclude the expert testimony" because the "defendant's filing of the expert's statement . . . was untimely." Senna, Mass.App. Ct., No. 16-P-1205, slip op. at 4 n.4 (Oct. 27, 2017). See Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005) (direct estoppel bars relitigation in new trial motion of issue already decided on direct appeal). It follows that raising the issue in the defendant's direct appeal would have been futile and therefore appellate counsel was not ineffective by failing to do so. See Commonwealth v. Butler, 464 Mass. 706, 719-720 (2013).
2. Trial judge's recusal.
Next, the defendant asserts that appellate counsel should have argued that the trial judge abused her discretion by not recusing herself from the defendant's second trial after the first one ended in mistrial.
"The matter of recusal is generally left to the discretion of the trial judge . . . and an abuse of that discretion must be shown to reverse a decision not to allow recusal" (citation omitted). Commonwealth v. Daye, 435 Mass. 463, 469 (2001). When a judge is faced with a question as to her impartiality, she must consult "first [her] own emotions and conscience. If [she] passed the internal test of freedom from disabling prejudice, [she] must next attempt an objective appraisal of whether this [is] 'a proceeding in which [her] impartiality might reasonably be questioned'" (citation omitted). Lena v. Commonwealth, 369 Mass. 571, 575 (1976).
After a close review of the trial transcripts, we discern no reason to question the judge's determination that she could be fair and impartial. Nor do we discern error or an abuse of discretion in the judge's application of the second prong of the recusal test. We agree with the motion judge that appellate counsel's decision to forgo this issue on appeal was not manifestly unreasonable. See Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006) ("A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made" [citation omitted]).
3. Cumulative prejudice.
The defendant next claims that appellate counsel was ineffective for failing to argue that the cumulative prejudice from certain errors at trial concerning jury empanelment, the investigation by police, and the Commonwealth's improper closing argument warranted a new trial. We disagree.
Notably, though an unsigned affidavit of appellate counsel accompanied the defendant's new trial motion in the Superior Court, it was silent as to these three sub-issues. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) ("[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his [or her] actions and suggestive of strategy contrived by a defendant viewing the case with hindsight").
a. Examination of prospective jurors.
The trial judge was within her discretion in declining to probe prospective jurors about whether they would give greater credence to police officers' testimony than other witnesses, as there was no apparent substantial risk present of extraneous issues influencing the jury. See Commonwealth v. Gittens, 55 Mass.App.Ct. 148, 151-152 (2002). See also Commonwealth v. Steeves, 490 Mass. 270, 286 (2022) ("Where the subject of requested questioning is not enumerated in G. L. c. 234A, § 22, or G. L. c. 234A, § 67A, and where, as here, no substantial risk of extraneous influence has been shown, both the scope and form of such questioning are left to the sound discretion of the trial judge" [citation omitted]). Moreover, in the final charge of the second trial, the judge instructed the jury that "[t]he testimony of a police officer is entitled to no special consideration" and that "[p]olice officers do not stand in any higher or lower station in the community than other persons, and the officer's testimony is not entitled to any greater or lesser weight simply because of their employment as a police officer." These instructions were sufficient here. See Commonwealth v. Espinal, 482 Mass. 190, 198 (2019).
b. Police investigation.
Appellate counsel was also not ineffective for not arguing that there was insufficient evidence to convict the defendant because "the police investigation of the incident was riddled with error, including a potential Brady violation."
As an initial matter, appellate counsel argued that trial counsel erred by not moving for a required finding of not guilty on the assault and battery causing serious bodily injury charge. The panel of this court rejected this claim, noting that "[b]ecause we find the evidence sufficient to support a conviction, we need not reach that issue." Senna, Mass.App. Ct., No. 16-P-1205, slip op. at 4 n.3. Moreover, the alleged shortcomings of the police investigation were presented to the jury during the second trial. The defendant's trial counsel highlighted in his cross-examination of certain witnesses and in his opening statement and closing argument that the police did not, among other things, (1) test the blood found on the victim's and the defendant's respective clothing, (2) examine the contents of the cell phone found at the scene of the crime, or (3) preserve the black jacket that multiple witnesses identified as the jacket worn by the defendant during the incident. It is apparent that a sufficiency argument on these grounds, viewing the evidence in the light most favorable to the Commonwealth, would not have made a difference in the defendant's direct appeal.
As for the Commonwealth's late disclosure of a police report detailing a witness interview, the defendant suffered no prejudice from the delay. See Commonwealth v. Stote, 433 Mass. 19, 22 (2000). The report was disclosed to the defense during the first trial, which ended in a mistrial. The defendant had enough time to make use of the report during the second trial, and the interviewing officer and the witness in question testified and were subject to cross-examination by defense counsel.
c. Prosecutor's closing argument.
Finally, the defendant asserts that the prosecutor misstated the evidence when he argued that a certain witness testified that he observed the defendant throw a knife into the woods. While it is true that the witness only testified that he observed the defendant throw an "object" into the woods, a different witness testified at trial that he observed the defendant slash the victim and then throw the knife into the woods. The prosecutor's statement was a fair inference drawn from the evidence. See Commonwealth v. Joyner, 467 Mass. 176, 189 (2014). Furthermore, the judge instructed the jury both before and after closing arguments that they "are not evidence." She further instructed that "[i]f [the jury's] memory of the testimony differs from the attorneys," then "[i]t is always the jury's collective memory of the evidence which controls."
In conclusion, because we discern no ineffectiveness on the part of appellate counsel for not raising the above issues in the defendant's direct appeal, the motion judge did not abuse his discretion by denying the defendant's motion for new trial.
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.