Opinion
No. 10–P–1934.
2012-10-24
COMMONWEALTH v. Valerie J. BLOOM.
By the Court (BERRY, GREEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant's contention that her jury waiver was involuntary by reason of the Commonwealth's decision to call the victim as a rebuttal witness (and her related claim that her trial counsel was ineffective for failing to request withdrawal of the waiver or a mistrial) is largely controlled by Commonwealth v. Kopsala, 58 Mass.App.Ct. 387, 391 (2003), quoting from Commonwealth v. Berte, 57 Mass.App.Ct. 29, 35 (2003) (“[c]onfusion and misinformation regarding the [state of the Commonwealth's evidence] does not impair the knowing and intelligent nature of the defendant's waiver of his right to a jury trial, because the two are not related issues”). In any event, when the defendant presented testimony that she had acted in self-defense and the judge overruled the Commonwealth's objection grounded on the defendant's failure to list an intention to raise self-defense on the pretrial conference report, the judge based his ruling in part on his decision to allow the Commonwealth to present rebuttal testimony from the victim (who was the defendant's mother). Because the defendant's jury waiver was not rendered involuntary by reason of the Commonwealth's presentation of the victim's rebuttal testimony, the defendant's claim furnishes no cause to disturb the judgment. The defendant's remaining claims are likewise unavailing. The defendant did not raise any issue concerning her pacemaker with her trial counsel until after trial had concluded, and the evidence submitted in support of her new trial motion does not establish that it would have furnished a substantial ground of defense. Similarly, the defendant's concerns about the victim's handling of financial matters were entirely collateral to the question of her guilt on the charge of assault and battery; as the Commonwealth observes, to the extent such evidence would have been relevant at all, it would have furnished motive for the defendant's attack against the victim rather than support for her theory of self-defense. As the Commonwealth also observes, the evidence submitted in support of the defendant's motion for a new trial furnished no basis to conclude that the victim was not competent to testify. For the foregoing reasons, then, the judge correctly rejected the defendant's several claims of ineffective assistance of counsel.
We are not persuaded by the defendant's suggestion that we should not follow Kopsala because (in the defendant's view) it was wrongly decided.
The record contains conflicting accounts of when the defendant disclosed an intention to raise self-defense. When the issue arose at trial, the defendant asserted, and the prosecutor denied, that the defendant had disclosed the strategy during a lobby conference on the morning of trial. Even if the disclosure had been made at that time, it occurred very shortly before commencement of trial, and it was in any event entirely foreseeable that the Commonwealth would (if possible) seek to offer rebuttal evidence. See Commonwealth v. Dietrich, 381 Mass. 458, 462 (1980).
The defendant's challenge to the sufficiency of the evidence is without merit for substantially7 the reasons explained in the Commonwealth's brief at pages 17–20; the defendant's challenge is directed to the weight or credibility of the evidence, rather than its sufficiency. Finally, we presume that the judge correctly instructed himself on the law, see Commonwealth v. Batista, 53 Mass.App.Ct. 642, 648 (2002); in his capacity as finder of fact he was free to weigh and discredit the defendant's claim that she acted in self-defense.
Judgment affirmed.
Order denying motion for new trial affirmed.