Opinion
21-P-869
10-07-2022
COMMONWEALTH v. MIGUEL VEGA.
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
After a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b). On appeal, he claims error in the denial of his motion for new trial based on ineffective assistance of counsel. We affirm.
The defendant's appeal from the order denying his motion for a new trial was consolidated in this court with his direct appeal from the judgment. He argues only that the judge erred in denying the motion for a new trial.
Discussion.
"We review the denial of a motion for a new trial for an abuse of discretion." Commonwealth v. Sorenson, 98 Mass.App.Ct. 789, 791 (2020), cert, denied, 142 S.Ct. 107 (2021). In doing so, "[w]e afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Perez, 484 Mass. 69, 73 (2020), quoting Commonwealth v. Martin, 467 Mass. 291, 316 (2014). In analyzing the defendant's claim for ineffective assistance of counsel, we determine "whether there has been serious incompetency, inefficiency, or inattention of counsel --behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and, if so, "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Sorenson, supra, quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). However, "[a] strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was manifestly unreasonable when made" (quotation and citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). Here, the defendant's motion for new trial was supported only by his own affidavit; it included neither an affidavit of trial counsel nor any explanation for the absence of that affidavit.
The defendant claims that his trial counsel was ineffective for failing to request a jury instruction on defense of another.
Similar to self-defense, defense of another is an affirmative defense that permits a defendant to use justified force against another person to protect a third party if "a reasonable person in the [defendant's] position would believe his intervention to be necessary for the protection of the third person, and . . . in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect [her]self" (citation omitted). Commonwealth v. Young, 461 Mass. 198, 208 (2012) .
At trial, counsel focused on a theory of self-defense. The victim testified that he and his friend were riding their bicycles near the Lynn Common late one evening in August, 2018 when he was accosted by the defendant "and his friends." According to the victim, the defendant, for no apparent reason, "pulled out a very long knife" and began stabbing him. The victim indicated that he grabbed the knife and pulled it from the defendant's hand. He further testified that the defendant's girlfriend, who was standing nearby, begged him to relinquish the knife to her rather than retaliate against the defendant. The victim claimed that he complied, and after handing her the knife he biked a short distance to the police station. Police treated the victim's injuries, which included a large cut on his bicep, several facial lacerations, and cuts to his hands.
In response, trial counsel called the defendant's girlfriend, who testified that the victim and his companion approached her group of friends, came within two or three feet of the defendant, and then "pull[ed] out a knife, [although she] thought it was actually a gun at first." She asserted that the defendant "was basically just trying to defend himself." Trial counsel also introduced evidence of the victim's prior violent conduct to support his argument that the victim was the initial aggressor. See Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005). By contrast, the only evidence of defense of another was the girlfriend's testimony that when she tried to help the defendant, at some point she "started struggling with [the victim] for the knife," and the defendant "was trying to help."
Trial counsel cross-examined the victim about an incident in which he allegedly "pulled a knife" on a man and later threatened him not to testify in court. Trial counsel then called the man to testify that the victim attempted to rob him at knifepoint and later intimidated him outside a court room at the Lynn District Court. Counsel also cross-examined the victim about allegations that he kicked another man on a different occasion.
As we have noted, the defendant failed to provide an affidavit of trial counsel. "[T]he absence from the defendant's moving papers of an affidavit from trial counsel or an averment from appellate counsel explaining the absence of any such affidavit is conspicuous and significant." Commonwealth v Miller, 101 Mass.App.Ct. 344, 351 (2022). The judge properly could have inferred from the transcript and the lack of an affidavit to the contrary that defense counsel's decision to focus on the self-defense argument was a strategic one. See id. at 352 (judge may draw negative inference from defendant's failure to provide affidavit from counsel). If so, based on the evidence in this case, we conclude that trial counsel's strategic approach was reasonable, albeit unsuccessful. See Commonwealth v. Kolenovic, 478 Mass. 189, 193-194 (2017) (counsel not ineffective for highlighting argument best supported by evidence); Commonwealth v. White, 409 Mass. 266, 272 (1991) ("where tactical or strategic decisions . . . are at issue, [courts] . . . review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful"); Commonwealth v. Swan, 38 Mass.App.Ct. 539, 541 (1995) (strategic decision by counsel is not ineffective merely because it is unsuccessful). Because we discern no ineffectiveness on the part of trial counsel, the trial judge did not abuse her discretion by denying the defendant's motion for new trial.
We question whether the evidence at trial of defense of another was sufficient to support a request for a jury instruction. Regardless, failure to request such an instruction did not prejudice the defendant. See Commonwealth v. Green, 55 Mass.App.Ct. 376, 381 (2002) ("In light of the jury's rejection of the defendant's self-defense argument, it is highly unlikely that they would have concluded that he was acting in defense of [another] even if they had been instructed on the subject").
Judgment affirmed.
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.