Opinion
10-P-704
11-10-2011
COMMONWEALTH v. SANTO ESPINAL. [FN1]
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
A jury found the defendant guilty of violating an abuse prevention order, G. L. c. 209A, 7, as a result of his presence at a Target store on November 13, 2008, when his former wife and her mother were also there. In these consolidated appeals, the defendant argues that (a) the judge abused her discretion in denying his motion for new trial (which was based on a claim of ineffective assistance of counsel), and (b) the erroneous admission of prior bad act evidence warrants reversal of his conviction. We affirm.
1. Motion for new trial. We review a judge's decision on a motion for new trial claiming ineffective assistance of counsel for abuse of discretion or other error of law. See Commonwealth v. Alvarez, 433 Mass. 93, 100-101 (2000). 'Where, as here, the motion judge was also the trial judge, the decision of the motion judge is entitled to special deference. Moreover, where a claim of ineffective assistance of counsel is the basis for the defendant's motion for new trial, appellate courts accord substantial deference to the trial judge's favorable evaluation of a trial counsel's performance.' Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 493 (1998) (citations omitted). In order to establish ineffective assistance of counsel, the defendant must show that, under the circumstances of his case, (1) '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 (2) that behavior 'has likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant argues his motion for new trial should have been allowed because he was deprived of the effective assistance of counsel when his trial counsel 'opened the door' for the Commonwealth to introduce photographs of injuries sustained by the victim allegedly as a result of prior assaults by the defendant. In support of his motion, the defendant submitted an affidavit from trial counsel stating that he was surprised to learn that the victim had taken pictures of her prior injuries because he had never been provided the photographs in discovery. Counsel also stated that he would not have opened the door had he known that the photographs existed. Absent from the affidavit was any explanation as to why defense counsel persisted in his questioning even after the victim first testified to the existence of photographs, or why he did not move to strike as soon as he learned that supposedly important information, or seek to be heard at sidebar. Instead, the transcript demonstrates that defense counsel asked the victim on at least six different occasions (relating to six separate episodes) if she had taken pictures of her injuries. Regardless of the victim's answer (whether she did, or did not, take photographs), he continued with a similar pattern of follow-up questions. We cannot say that the judge was outside the realm of her broad discretion when she determined, on this record, that defense counsel's questions about the photographs were deliberate and intentional and did not produce answers that were a surprise to him. See Commonwealth v. Bell, 455 Mass. 408, 422 (2009).
On appeal, the defendant does not contest the finding that the Commonwealth had provided the photographs to his counsel before trial began.
Of the six incidents about which counsel cross-examined the victim, she answered the second, fifth, and sixth times that she had taken pictures.
Even were we to assume otherwise, the defendant has not shown that the introduction of the photographs deprived him of a substantial ground of defense. The defendant did not contest that he violated the terms of the restraining order. Rather, the theory of the defense was that the violation was accidental, and that the defendant left the store as soon as he reasonably could. The introduction of the photographs did not deprive the defendant of this defense. Nor did their introduction deprive him of the ability to attack the victim's credibility. Defense counsel challenged her credibility by emphasizing that she had never called the police on earlier occasions despite claiming to have suffered injuries, even when she had photographic evidence, and that she did not always take pictures of the injuries or damage. He also pointed out various inconsistencies between the victim's testimony and that of her mother. The defendant's speculation as to the impact of the admission of the photographs is insufficient to establish that a substantial ground of defense was foreclosed. See Commonwealth v. Jackson, 78 Mass. App. Ct. 465, 473 (2010) (defendant not deprived of substantial ground of defense where it was 'speculative to assume that a different approach to impeachment would have affected the jury's decision '). See also Commonwealth v. Watson, 455 Mass. 246, 256 (2009) ('[M]ere speculation, without more, is insufficient to establish ineffective representation').
In order to establish violation of a G. L. c. 209A order, 'the Commonwealth must prove beyond a reasonable doubt that a court had issued such an order; that the order was in effect on the date that the violation allegedly occurred; that the defendant knew the pertinent terms of the order; and that the defendant violated the order.' Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 492 (2002). If the defendant presents evidence suggesting that contact was accidental, the Commonwealth must prove beyond a reasonable doubt that the defendant 'failed to make reasonable efforts to terminate the accidental encounter.' Commonwealth v. Stoltz, 73 Mass. App. Ct. 642, 645 (2009).
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2. Direct appeal. The defendant argues that evidence of his prior acts of abuse should not have been admitted because its prejudice far outweighed its probative value. Commonwealth v. Marrero, 427 Mass. 65, 67 (1998). The admission of such evidence is 'within the sound discretion of the judge . . . [and] will be upheld on appeal absent palpable error.' Id. at 68, quoting from Commonwealth v. Valentin, 420 Mass. 263, 270 (1995).
No such error appears here. The judge limited the number of acts that could be introduced and also instructed the jury that the evidence was to be considered only for the limited purpose of considering the nature of the relationship between the victim and the defendant. See Commonwealth v. Ridge, 455 Mass. 307, 323 (2009) (no error in admitting evidence of prior bad acts where evidence was relevant to establish defendant's anger and judge gave limiting instruction); Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 54-55 (2009) (evidence of prior violence admissible to show hostile relationship was not unduly prejudicial even without limiting instruction).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Graham, Rubin & Wolohojian, JJ.),