Opinion
11-P-857
03-01-2012
COMMONWEALTH v. JOSE SERRANO.
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
Upon review of the briefs, record appendix, and transcript, we find no merit in the defendant's various claims of error. Nor do we discern any serious missteps in the manner in which the judge conducted the trial. Accordingly, we address each claim of error in a summary manner, for the most part relying on the Commonwealth's brief and, where appropriate, citing relevant case law.
1. Ineffective assistance. Passing the question whether the ineffective assistance claim here should have been 'advanced in the context of a motion for a new trial,' see Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999), we confidently can conclude that the defendant's claim fails as it does not meet the second prong of the Saferian test, which requires a showing that 'better work might have accomplished something material for the defense,' Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
a. Individual voir dire. It has not been made to appear that the judge's failure to conduct an individualized voir dire beyond that constitutionally or otherwise legally required was an abuse of discretion or other error of law. Moreover, the judge made several inquiries of the venire in an effort to ascertain any potential juror bias, and specifically instructed the jurors not to give the testimony of a priest 'any more or any less [credibility] than any other witness.'
b. Limiting instruction. As to counsel's failure to request a limiting instruction, the short answer is that there was no need, as counsel's objection was sustained.
c. Missing witness instruction. The rule regarding a missing witness instruction is set out in Commonwealth v. Thomas, 439 Mass. 362, 370-371 (2003). For an excellent discussion regarding the propriety of giving a missing witness instruction, see Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134-135 (1986). There is no basis for such an instruction when, as here, 'it appears that the testimony [of the witness] would be unimportant -- merely corroborative of, or merely cumulative upon, the testimony of one or more witnesses who have been called.' Commonwealth v. Thomas, supra at 371, quoting from Commonwealth v. Schatvet, supra at 134. See Commonwealth v. Spencer, 49 Mass. App. Ct. 383, 387 (2000).
2. Sufficiency of the evidence of a dangerous weapon. This issue is controlled in material respects by the language in Commonwealth v. Appleby, 380 Mass. 296, 306-307 (1980). See and compare Commonwealth v. Hesketh, 386 Mass. 153, 154 (1982). '[M]ere touching suffices for conviction.' Commonwealth v. McIntosh, 56 Mass. App. Ct. 827, 832 (2002). Glass shards from a broken window can be a dangerous weapon for the purposes of G. L. c. 265, § 15A. See Commonwealth v. Tevlin, 433 Mass. 305, 310-311 (2001). See also Commonwealth v. McIntosh, supra at 830.
In short, the Commonwealth adduced sufficient evidence to satisfy its burden of establishing that the victim's injuries from the shards of broken glass were more than 'transient and trifling.' Id. at 832, quoting from Commonwealth v. Burno, 396 Mass. 622, 627 (1986).
Judgments affirmed.
By the Court (Green, Brown & Agnes, JJ.),