Opinion
09-P-1625
11-23-2011
COMMONWEALTH v. GERARD R. SPANO, JR.
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
In a jury-waived trial, Gerard R. Spano, Jr., was convicted of use of a motor vehicle without authority; assault and battery; and malicious destruction of property. The judge who presided over the trial denied Spano's subsequent motion for a new trial. On appeal from the judgments and from the order denying his motion for a new trial, Spano argues that (1) trial counsel's failure to call his sister as a witness constituted ineffective assistance of counsel; (2) the victim improperly testified to prior acts of abuse committed by him; and (3) he was unfairly prejudiced by testimony that the police had been called to his home fifty times within the last seven years. We affirm.
Ineffective assistance. Spano claims that trial counsel was ineffective for failing to call his sister, Tanya Spano, (Tanya). Spano argues that Tanya's testimony would have contradicted the testimony of the victim, Edyta Wec. Because the Commonwealth's case hinged on the credibility of Wec, Spano further claims that Tanya's conflicting testimony would have created reasonable doubt and mandated his acquittal.
Wec's signed witness statement makes it clear that she spells her name 'Edyta.' However, both the trial transcript and the briefs spell Wec's first name 'Adida.'
A finding of ineffective assistance of counsel requires questioning whether '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, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defen[s]e.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Additionally, when the motion judge is also the trial judge, his decision on a motion for a new trial based upon the claim of ineffective assistance of counsel is entitled to special deference because that judge witnessed, in its entirety, defense counsel's trial performance. Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995). Commonwealth v. Delong, 60 Mass. App. Ct. 122, 127 (2003).
Here, the judge who presided over the bench trial was also the judge who denied Spano's motion for a new trial. Spano's motion included an affidavit, signed by Tanya, detailing her version of the incident. Implicit in the judge's denial of the motion was his belief that Tanya's proposed testimony would not have altered the finding in this case, which he had, himself, decided. Additionally, based on her affidavit, Tanya would have testified to substantially the same set of facts as Spano's mother. As evidenced by the finding of guilty, the trial judge found Wec credible, regardless of existing inconsistent testimony by Spano's mother. Tanya's testimony would have been cumulative and would not have affected the outcome of the case. The judge acted within his discretion in ruling that not calling Tanya did not constitute ineffective assistance of counsel.
Prior bad acts. Spano also claims that he was unfairly prejudiced by testimony that he had previously been involved in violent altercations with Wec and also by testimony that the police had been called to his residence fifty times within the last seven years.
The judge sustained an objection, while Wec was on the stand, concerning previous instances of abuse by Spano. However, defense counsel later raised the issue when he called Wec's credibility into question by asking why she did not report Spano's violation of an existing restraining order. In response to this line of questioning, evidence that, as a result of Spano's behavior, police had been called fifty times to the Spano household was elicited by the Commonwealth. This evidence was introduced, not for the purpose of showing Spano's bad character, but to rehabilitate Wec's credibility and explain why she was reluctant to call the police, after repeated questions on the topic by defense counsel. The Commonwealth also mentioned the fifty police visits during its closing argument. See Mass. G. Evid. § 404(b) (2011).
We presume that the judge applied the evidence properly for the limited purposes for which it was admitted. '[I]t is presumed that the judge as trier of fact applies correct legal principles.' Commonwealth v. Colon, 33 Mass. App. Ct. 304, 308 (1992). Furthermore, '[w]hile the impact of . . . improper testimony on a jury might have been different, when a judge is the fact finder, we take into consideration the greater likelihood that he will not be influenced by extraneous factors.' Commonwealth v. Montanez, 439 Mass. 441, 450 (2003).
Even if we were to assume, which we do not, that the Commonwealth's closing argument was improper, Spano would fare no better. Here, we presume that the judge only considered the prior bad act evidence for the narrow purposes for which it was introduced and not, as Spano suggests, as evidence that he 'was a bad man who was likely to commit the crimes charged.'
For these reasons, as well as for substantially those in the brief of the Commonwealth, we affirm.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),