Opinion
13-P-104
06-10-2015
COMMONWEALTH v. ROLAND ELLISON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from his conviction and the denial of his motion for a new trial. He argues that the trial judge erred in denying the motion based on trial counsel's ineffective representation. We affirm.
After a jury trial the defendant was found guilty on one count of assault and battery on a correctional officer, in violation of G. L. c. 127, § 38B (count 1), and one count of assault and battery by means of a dangerous weapon, to wit, a grate, in violation of G. L. c. 265, § 15A(b) (count 2). The defendant's motion to dismiss count 2 "as merged into" count 1 was allowed.
Discussion. The defendant contends that his trial counsel provided ineffective assistance by arguing a defense of provocation, claiming that such a defense was not available in the circumstances of his case. To succeed with respect to a claim of ineffective assistance of counsel, the defendant must show that his counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and that, as a result, he "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where counsel's decision may be a strategic or tactical decision, the defendant must show that such strategy was "manifestly unreasonable." Commonwealth v. Hill, 432 Mass. 704, 718 (2000), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998).
Although the defendant asserts that his counsel presented a defense of provocation that was unavailable to him, the record suggests otherwise. In this regard, we agree with the Commonwealth's argument that defense counsel's strategy was an attempt to mitigate the seriousness of the offense of assault and battery on a correctional officer. Specifically, counsel argued that the defendant attacked the correctional officer after becoming enraged by derogatory remarks made by the officer about the defendant's mother, who had recently passed away. The apparent goal of counsel's strategy was to have the more serious charge that he was facing reduced to a simple assault and battery. To that end, counsel claimed that due to the highly offensive nature of the comments, the correctional officer was acting outside the scope of his authority. Counsel thus argued that the defendant was not asserting self-defense, but rather was claiming that any assault that occurred "was personal in nature, and not an assault on [the victim] as a correctional officer." A conviction on the lesser offense of assault and battery would have resulted in a maximum sentence of two and one-half years in a house of correction rather than the nine and one-half to ten years in State prison that the defendant eventually received on the more serious charge. See G. L. c. 265, § 13A. Trial counsel's strategy to mitigate the seriousness of the offense and thereby reduce the defendant's exposure, although unsuccessful, was not manifestly unreasonable. Commonwealth v. McLeod, 39 Mass. App. Ct. 461, 462 (1995).
Moreover, after careful review of the record we conclude that the defendant fails to meet the second prong of the Saferian test in that there is no showing that he was deprived of an otherwise available, substantial ground of defense. There was ample evidence presented against the defendant at trial, including video footage, as well as six witnesses who testified that they either observed or heard the defendant attacking the correctional officer. We discern no alternative defense that might have been available to the defendant in the circumstances. The defendant also claims he would not have testified had he known that provocation was not an available defense. In taking the stand, however, the defendant was able to highlight the offensive nature of the correctional officer's comments. "Indeed, the defendant's testimony was hardly a submission for judgment of guilt." Commonwealth v. Lopez, 447 Mass. 625, 629 (2006). "He used the opportunity as a subtle attempt to humanize himself, diminish his apparent moral (if not legal) culpability, and thereby sway the consciences of the jurors." Ibid., citing Commonwealth v. Hebert, 379 Mass. 752, 755 (1980).
The Commonwealth presented a strong case against the defendant and, considering the lack of any reasonable alternative strategy available to his trial counsel, it has not been made to appear that he provided ineffective assistance. Commonwealth v. Montez, 450 Mass. 736, 754-755 (2008). The motion judge, who was also the trial judge, did not abuse her discretion in denying the motion for a new trial. Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Rapoza, C.J., Brown & Berry, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 10, 2015.