Opinion
11-P-81
12-20-2011
COMMONWEALTH v. SCOTT PHILLIPS.
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
The defendant was convicted by a District Court jury of violating an abuse prevention order, G. L. c. 209A, § 7, and malicious destruction of property, G. L. c. 266, § 127. On appeal, he contends that the judge erred in denying his motions for a required finding of not guilty; that testimony of a police officer improperly bolstered the victim's testimony thus creating a substantial risk of a miscarriage of justice; and that the judge improperly considered uncharged conduct of the defendant when sentencing. We affirm.
1. Motion for required finding. The defendant argues that the judge improperly denied his motions for required finding of not guilty because the victim's identification of him was not reliable. We disagree. A reviewing court must consider 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). The victim's identification of the person who slashed her tires was based upon a video in which the tire slasher appears for only a few seconds. At no time is a face visible and the person's body is concealed by an amorphous sweatshirt. Nonetheless, the victim testified that she recognized the defendant as the person in the video by the general shape of the person, the clothing he wore, and the way he moved.
It is well established that 'the weight and credibility of the evidence is the province of the jury.' Commonwealth v. Gomez 450 Mass. 704, 711 (2008) (defendant's claim that identification of defendant insufficient since it was dark and the witness's intoxication rejected as this was question for the jury). Whether the evidence presented in the video was sufficient to permit the victim to identify the person was a matter for the jury to determine.
2. Police officer's testimony. The defendant also argues that trial counsel's failure to object to improper testimony of Officer Nobrega, and to move for a mistrial, constituted ineffective assistance of counsel. To prove this claim the defendant must show that counsel's performance fell 'measurably below that which might be expected from an ordinary, fallible lawyer,' thus depriving the defendant of 'an otherwise available, substantial ground of defence.' Commonwealth v. Sefarian, 366 Mass. 89, 96 (1974). See Commonwealth v. Satterfield, 373 Mass. 109 115 (1977). We are not persuaded.
Nobrega simply testified that, based upon his observations and conversation with the victim, he submitted an application for a criminal complaint against the defendant. Defense counsel's apparent decision not to object to Nobrega's testimony, but to cross-examine Nobrega, neither created a substantial risk of a miscarriage of justice nor provided a basis for an ineffective assistance of counsel claim. See Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).
The proper method of pursuing an ineffective assistance of counsel claim is to raise it in a motion for a new trial, unless the basis of the claim is crystal clear from the record. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) ('[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight'); Commonwealth v. Zinser, 446 Mass. 807, 810 (2006).
3. Sentencing. At sentencing, a judge may only sentence the defendant for the crime for which he has been found guilty and not for uncharged misconduct. Commonwealth v. Henriquez, 440 Mass. 1015, 1015-1016 (2003). However, uncharged conduct may be considered as bearing on 'the defendant's character and his amenability to rehabilitation.' Commonwealth v. Goodwin, 414 Mass. 88, 93 (1993). Here, the judge properly considered the prior uncharged conduct in determining the defendant's amenability to rehabilitation. There was no error.
Judgments affirmed.
By the Court (Rapoza, C.J., Mills & Graham, JJ.),