Accordingly, we review to determine whether there was "error and, if so, did it give rise to a substantial risk of a miscarriage of justice." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 182 (2001). "A substantial risk of a miscarriage of justice exists when we have ‘a serious doubt whether the result of the trial might have been different had the error not been made.’ "
January 3, 2002.Further appellate review denied: Reported below: 53 Mass. App. Ct. 168 (2001).
See Commonwealthv. Torres, 479 Mass. 641, 647 (2018). See also Commonwealthv. Ortiz, 53 Mass.App.Ct. 168, 177 n.12 (2001). "The purpose of postconviction discovery is to allow a defendant to gather evidence to support an apparently meritorious claim .
None of them, individually or collectively, satisfy the standard for ineffective assistance of counsel. See Commonwealthv.Ortiz, 53 Mass.App.Ct. 168, 178 (2001) ("Dividing the performance of trial counsel piece by piece to form a collage of alleged ineffectiveness is generally not persuasive, as we assess the performance of counsel as a whole").
"We review to determine whether [plea] counsel's failure to file a motion to dismiss the [complaint] was ineffective assistance and deprived the defendant of an otherwise available substantial defense." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 173 (2001), citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "That, in turn, requires determination of whether a motion to dismiss the [complaint] would have been allowed."
"We review to determine whether [plea] counsel's failure to file a motion to dismiss the indictment[ ] was ineffective assistance and deprived the defendant of an otherwise available substantial defense." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 173 (2001), citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "That, in turn, requires determination of whether a motion to dismiss the indictment[ ] would have been allowed."
Nothing more was required. See Commonwealth v. Williams, 450 Mass. 879, 885 n.2 (2008) (elements of self-defense); Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 182 n.19 (2001) (elements of assault and battery by means of dangerous weapon). See also Commonwealth v. McAfee, 430 Mass. 483, 495-496 (1999) (evidence that Commonwealth met its burden of disproving self-defense beyond reasonable doubt is viewed in light most favorable to Commonwealth).
"[C]ounsel was not ineffective in not filing a futile motion to dismiss the indictments." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 175 (2001).c. Burden shifting.
It is true that "[g]enerally the mere failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 180 (2001). However, for the reasons discussed infra, this is one such a case where "counsel's failure to pursue some obviously powerful form of impeachment" likely affected the jury's conclusion.
In addition, referencing a case and a statute in a reply brief "does not satisfy the appellate standard for presenting an appeal required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975)." Commonwealth v. Ortiz, 53 Mass. App. Ct. 168, 178 n.13 (2001).Even assuming that the plaintiff's brief rises to the level of appropriate appellate argument, his claims are without merit.