Commonwealth v. Clark

Full title: COMMONWEALTH v. GEORGIA CLARK.

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Mar 14, 2012

09-P-747 (Mass. Mar. 14, 2012)

Opinion

09-P-747

03-14-2012

COMMONWEALTH v. GEORGIA CLARK.

Mills

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In light of the weaknesses in the Mercadante affidavit -- both the ways in which it contradicts the defendant's testimony, and the questions it raises about the failure of both the defendant and Mercadante to take some of the steps a jury might have expected them to take had they believed on the date in question that the defendant had been drugged instead of voluntarily ingesting alcohol -- the defendant has failed to demonstrate that the failure of her trial attorney to call Mercadante, even assuming he was available, deprived her of a 'substantial ground of defen[s]e.' See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). This suffices to dispose of her claim of ineffective assistance of counsel.¹

1 We therefore need not address, and express no opinion on, the question whether trial counsel's performance fell below that required under the first prong of Saferian, supra.

For the same reason, the defendant has failed to demonstrate that the failure to present Mercadante's testimony created a substantial risk of a miscarriage of justice. Finally, because these determinations can be made on the basis of the trial record and the affidavits presented to the trial court and in the record before us, there was no abuse of discretion in the trial judge's failure to hold an evidentiary hearing on the motion for a new trial.

Judgment affirmed.

Order denying motion for new trial affirmed.

By the Court (Mills, Meade & Rubin, JJ.),