Opinion
10-P-1981
12-31-2012
COMMONWEALTH v. BELINDA M. DEJESUS.
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
After a jury trial, the defendant was convicted of assault and battery. On appeal, she argues that the judge erred in denying her motion for a new trial based upon ineffective assistance of counsel. We affirm.
Background. We summarize the evidence presented at the trial. The defendant and Anthony Poe (Poe) were involved in a dating relationship. On July 11, 2008, the two met in Franklin Park in Boston to discuss their relationship status. An argument ensued and Poe telephoned 911. In the recorded 911 call, he said the defendant was harassing him and would not allow him to leave. He further stated that the defendant 'hit [him] on the back of [his] head.' The incident eventually ended, and the defendant went to the police station and reported that Poe had 'punched' her. Poe remained at the scene and gave his version of the incident to the responding officers. A few days later, the defendant sought, and was granted, a restraining order against Poe. At a pretrial hearing it was agreed that defense counsel would provide the Commonwealth with a 'blank tape' so that the Commonwealth could make a copy of the 911 call for defense counsel. However, counsel never provided the blank audiotape, and, therefore, never received a copy of the 911 call. It was not until the day of trial that counsel was able to listen to the audiotape. At trial, defense counsel argued that the audiotape demonstrated that the defendant's actions were actually an attempt to retrieve her cellular telephone from Poe. Defense counsel cross-examined Poe, questioning whether he actually was punched by the defendant. Furthermore, defense counsel argued that the defendant was too short to have struck Poe in the manner to which he testified. After hearing testimony from both the defendant and Poe, the jury found the defendant guilty of assault and battery.
The defendant gave her attorney 'confusing information' regarding the police report the defendant had filed, and failed to mention the report to the investigator hired by her attorney.
Following her conviction the defendant appealed and moved for a new trial. In her motion, the defendant argued that her counsel was ineffective in failing (1) to obtain a copy of the 911 audiotape and to digitally enhance it in order to determine its exculpatory value; (2) to obtain a copy of the defendant's report to the police in order to use it to bolster her trial testimony; and (3) to effectively cross-examine Poe regarding his prior inconsistent statements and the alleged exculpatory material in the 911 audiotape. The motion judge, who also had presided at trial, concluded that defense counsel's actions were not 'manifestly unreasonable' and denied the motion without an evidentiary hearing.
Discussion. A defendant seeking to establish a claim of ineffective assistance of counsel must demonstrate that (1) trial counsel was seriously incompetent, inefficient, or inattentive in a way that fell measurably below that which might be expected from an ordinary fallible lawyer, and (2) trial counsel's conduct deprived the defendant of a substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Furthermore, where the tactical or strategic decisions of defense counsel are at issue, the defendant must demonstrate that counsel's judgment was manifestly unreasonable. Commonwealth v. White, 409 Mass. 266, 272-273 (1991). Where, as here, 'the motion judge was the trial judge and had the opportunity to assess the credibility of witnesses and the evidence presented,' we give particular deference to that decision. Commonwealth v. Smith, 49 Mass. App. Ct. 127, 131 (2000).
There was no error in trial counsel's assistance regarding the 911 audiotape. In her affidavit, filed in conjunction with the motion for a new trial, trial counsel stated that there was nothing special about this 911 call that would have prompted her to convert it to an MP3 format. Thus, regardless of when counsel listened to the audiotape, there would have been no reason to have it digitally enhanced. Moreover, after listening to the audiotape, counsel proceeded with her theory that the defendant was too short to actually punch Poe in the back of the head as he described. We conclude that trial counsel's actions with regard to the audiotape were not manifestly unreasonable. See Commonwealth v. Lucien, 440 Mass. 658, 670 (2004).
Counsel used the audiotape to demonstrate the defendant was not harassing Poe.
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The defendant's contention that trial counsel's failure to obtain her police report constituted ineffective assistance is without merit. The defendant gave her attorney 'confusing information' about the report and never mentioned it to the investigator. It also is indisputable that the report would not have been admitted in evidence. Finally, everything contained in the report was testified to by the defendant on direct examination and heard by the jury. There was therefore no ineffective assistance. See Commonwealth v. Caillot, 454 Mass. 245, 264-265 (2009).
There was also no error in counsel's cross-examination. Poe was cross-examined as to all aspects of the encounter. Furthermore, we agree with the Commonwealth that it was not manifestly unreasonable for trial counsel to refrain from inquiring into which part of Poe's head the defendant actually struck, because it only would have allowed Poe to testify further as to the battery. See Commonwealth v. Jackson, 78 Mass. App. Ct. 465, 469-470 (2010).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Meade, Sikora & Carhart, JJ.),