Opinion
09-P-1015
03-14-2012
COMMONWEALTH v. MARK THORNTON.
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 raises first an ineffective assistance of counsel claim, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), based on a number of alleged failures of trial counsel. A claim of ineffective assistance may not be resolved on direct appeal unless 'the factual basis of the claim appears indisputably on the trial record.' Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). Since that is not the case here, the defendant's claim of ineffective assistance should properly be brought in the first instance in a motion for a new trial. Accord Commonwealth v. Bell, 455 Mass. 408, 421 (2009) ('the trial record alone cannot explain the strategy of trial counsel ').
The defendant also claims that the judge should have, sua sponte, ordered a mistrial upon a police witness's utterance, as he left the courtroom, of a statement allegedly heard by jurors. Since no motion for a mistrial was made, that question turns on whether the failure to order a mistrial created a substantial risk of a miscarriage of justice. The defendant also claims ineffective assistance of counsel in trial counsel's failure to move for a mistrial. Since the standards for evaluating harm are the same with respect to these two claims, Commonwealth v. Curtis, 417 Mass. 619, 625 n.4 (1994) ('if an omission of counsel does not present a substantial risk of a miscarriage of justice . . . , there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitution'), this claim, too, is best addressed in the first instance in a motion for new trial.
The defendant also argues that statements he made during the booking process when he was being asked routine booking questions and prior to his receipt of the Miranda warnings should have been suppressed. Although trial counsel did not file a motion to suppress, which is one of the bases for the defendant's claim of ineffective assistance of counsel, during the course of the trial he moved that the statements made to the police be excluded on the ground that the defendant had not been advised of his Miranda rights. The judge noted that, before the grand jury, Officer MacDonald had agreed in his testimony that the defendant made a statement 'during the booking, after he received all his rights,' but that at trial the officer testified that the defendant had never been read his rights. Nonetheless, the defendant has failed to show that the judge's conclusion was in error that the defendant's statement -- even assuming it was harmful to the defendant -- was a 'spontaneous statement' that does not require a Miranda warning because it was not made in response to custodial interrogation.
Judgment affirmed.
By the Court (Graham, Rubin & Milkey, JJ.),