Opinion
16-P-357
03-31-2017
COMMONWEALTH v. Tamika TIRADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Tamika Tirado, appeals from her conviction of assault and battery by means of a dangerous weapon. The conviction arose out of an altercation between the defendant and Antonio Pires, the ex-husband of the defendant's partner, in which the Commonwealth maintained that Tirado assaulted Pires with a knife. At trial, Tirado defended on the grounds of self-defense. We affirm.
Adjutant evidence . The defendant contends that she should have been able to introduce evidence of a second altercation with Pires that occurred after the event in question. See Commonwealth v. Adjutant , 443 Mass. 649, 665-667 (2005). She maintains that the evidence demonstrated Pires's propensity for violence and showed that he was the primary aggressor. The judge did not abuse his discretion in excluding the evidence because conduct arising after the incident giving rise to the charges "is not admissible under the rule stated in Adjutant ." Commonwealth v. Gaynor , 73 Mass. App. Ct. 71, 74 n.4 (2008).
The defendant withdrew this argument at oral argument.
Default . The defendant contends that the Commonwealth allowed Pires to default on an April, 2015, assault and battery charge brought by the defendant in order to avoid either disclosure of the pending charges or the possibility of a conviction with which he could be impeached at the trial of the defendant. The argument lacks any basis in fact in the record as to the reasons for the default, lacks a factual basis for claiming that the Commonwealth procured or tolerated the default, and is wholly speculative with regard to the outcome of any trial of the charges. See Matter of Crossen , 450 Mass. 533, 575 n.54 (2008) (declining to address arguments that are speculative); Commonwealth v. Barbosa , 461 Mass. 431, 436-437 (2012) (lack of evidence based on personal knowledge). Moreover, the defendant was well aware of the charges, and the trial judge allowed trial counsel to cross-examine Pires on the pending case as evidence of possible bias. There was no error.
The defendant contends that the Commonwealth was also able to avoid the mandatory disclosure provisions of Mass.R.Crim.P. 14(a)(1)(D), as amended, 444 Mass. 1501 (2005), because it did not prosecute Pires regarding the subsequent charges. The defendant clearly had notice of the charges and matters falling within rule 14(a)(1)(D).
Ineffective assistance . The defendant contends that trial counsel was ineffective for failing to present the complaint and docket entries regarding Pires's charges of assault against his ex-wife to the jury, and for failing to engage Pires in a more extended cross-examination as to why he allowed the charges to be dismissed.
In order to prevail in an ineffective assistance claim, the "defendant must show that there has been a ‘serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,’ and that counsel's poor performance ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Millien , 474 Mass. 417, 429-430 (2016), quoting from Commonwealth v. Saferian , 366 Mass. 89, 96 (1974). The defendant's counsel did not fail to put the issue before the jury, and there is no showing that representation fell below that of ordinary fallible counsel. Defense counsel did in fact cross-examine Pires about the status of the case. He established that Pires brought charges against his ex-wife, that Pires did not know that the case was dismissed, and that the court's notices to Pires had been sent to the wrong mailing address. How any further cross-examination would have advanced the defendant's case is not apparent on this record.
There is nothing here to suggest that the decision to simply cross-examine, rather than introduce the documents themselves, was anything other than strategic. With respect to strategic considerations, "claims of ineffective assistance should normally be raised through a motion for a new trial, where an appropriate factual record can be developed." Commonwealth v. Diaz , 448 Mass. 286, 289 (2007).
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Sufficiency . For the first time in her reply brief, the defendant argues that the evidence was insufficient to sustain her conviction of assault and battery by means of a dangerous weapon. "Any issue raised for the first time in an appellant's reply brief comes too late, and we do not consider it." Pasquale v. Casale , 72 Mass. App. Ct. 729, 738 (2008), quoting from Assessors of Boston v. Ogden Suffolk Downs, Inc ., 398 Mass. 604, 608 n.3 (1986). See Commonwealth v. Hampton , 64 Mass. App. Ct. 27, 33 n.8 (2005). Even if the argument were not waived, it lacks merit. We assess the evidence "in the light most favorable to the Commonwealth." Commonwealth v. Simpkins , 470 Mass. 458, 461 (2015), citing Commonwealth v. Latimore , 378 Mass. 671, 677 (1979). The defendant's argument is predicated on the notion that the jury impermissibly credited the testimony of Pires. The jury were permitted to credit Pires, whose testimony made out all of the elements of the crime charged.
Judgment affirmed .