Opinion
18-P-1731
12-06-2019
COMMONWEALTH v. Theresa A. CLAPP.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Dorchester Division of the Boston Municipal Court Department, a jury convicted the defendant, Theresa A. Clapp, of assault and battery on a person sixty years of age or older. On appeal, she contends that her attorney's failure to properly cross-examine the victim constituted ineffective assistance of counsel. We affirm.
The jury acquitted the defendant on a charge of threat to commit a crime.
Background. The seventy-seven year old victim rented the second-floor apartment of her home to the defendant. On the date of the incident, as the victim tried to open the door to her apartment, the defendant struck her in the face and knocked her down. The defendant "kept knocking [her] down," and said, "[b]itch, I kill you before the police get here." In order to stop the defendant, the victim grabbed a piece of wood and struck her with it.
Police officers received a call to respond to the scene. Upon arrival, an officer spoke with the victim, who had sustained injuries to her neck and left shoulder. The victim received treatment for her injuries at Brigham and Women's Hospital a few days later. The defendant was arrested on the day of the incident.
Photographs taken at the scene by police officers, including some depicting the victim's injuries, were admitted in evidence at trial.
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The defendant testified at trial, claimed that the victim attacked her, and stated that she "did not touch [the victim] at all." A police officer testified to the injuries sustained by both the victim and the defendant. The case hinged on the credibility of the parties.
Discussion. To prevail on a claim of ineffective assistance of counsel, the defendant must establish that 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 that, as a result, she was "likely deprived ... of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (prejudice standard under second prong of Saferian test met when reviewing court has "serious doubt whether the jury verdict would have been the same had the defense been presented").
The defendant did not raise the ineffective assistance claim through the preferred method of a motion for new trial accompanied by affidavits, and thus presents a claim "in its weakest form[,] because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight" (quotations and citation omitted). Commonwealth v. Diaz, 448 Mass. 286, 289 (2007). "Because the defendant raises [this] claim[ ] for the first time on direct appeal, [its] factual basis must appear ‘indisputably on the trial record’ for us to resolve [it]." Commonwealth v. Vera, 88 Mass. App. Ct. 313, 323 (2015), quoting Commonwealth v. Dargon, 457 Mass. 387, 403 (2010). This is not such a case.
The defendant claims that trial counsel rendered ineffective assistance because his cross-examination led to the introduction of otherwise inadmissible evidence, bolstered the victim's credibility, and undercut the defense theory. The claim is unavailing.
First, absent a motion for new trial, accompanied by an affidavit from trial counsel, we cannot discern on this record whether the absence of any objection had a tactical basis. Although the victim at times testified beyond the scope of the questions asked on cross-examination, defense counsel may have chosen, as a strategic matter, to allow the jury to see her act in a nonresponsive manner. The victim's demeanor on the witness stand could have demonstrated her evasiveness, lack of self-control, and aggressiveness, all consistent with the defense that she was the aggressor at the scene. In these circumstances, we are unable to say that the alleged inadequacy of counsel's performance "appears indisputably on the trial record" (quotation and citation omitted). Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
Even assuming, arguendo, that there was no tactical reason for not moving to strike the victim's nonresponsive testimony, the defendant cannot meet the second prong of the Saferian test, as she did not lose a substantial ground of defense. See Millien, 474 Mass. at 432 ("where counsel was ineffective for failing to present an available ground of defense, that defense is ‘substantial’ for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented"). The case against the defendant was strong in view of the injuries sustained by the victim, and the defendant's incredible testimony that she "did not touch [the victim] at all." On the present record, the defendant has not satisfied the prejudice prong of the ineffective assistance test.
Judgment affirmed.