Opinion
10-P-2097
10-19-2011
EDWARD JONES v. COMMONWEALTH & others.
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
On March 11, 2005, while ascending stairs en route to his cell at Massachusetts Correctional Institution (MCI), Cedar Junction, the plaintiff, inmate Edward Jones, tripped on the top two steps and fell, breaking his leg in two places. As presently material, on October 15, 2007, Jones, who was represented by counsel, commenced this action in Superior Court. He alleged negligence in maintaining the stairs, provision of inadequate medical treatment, and failure 'to train, hire, retain, and supervise . . . employees on proper facility maintenance and proper medical care procedures.' He also demanded a jury trial.
On August 3, 2009, Jones filed a motion for production of documents, which was denied, without prejudice, for failure to comply with Superior Court Rule 9A. So far as it appears, Jones did not renew his motion or otherwise seek discovery.
On April 15, 2010, the parties filed a joint pretrial memorandum in which each defendant contended that Jones's negligence was the cause of his injuries, and vice versa. The Commonwealth also indicated that its list of witnesses was to be supplemented. On June 10, 2010, the Commonwealth served Jones's counsel with a list of four witnesses: Sergeant Daniel Sullivan, grievance coordinator for Jones's grievances filed about the stairway; Correctional Officer John Cahill, who reported Jones's injury; Captain Patrick Mulvey, whom Jones's counsel had identified as having filed an investigative report on the incident; and Michael Paquin of the prison's engineering department at MCI, Cedar Junction.
On June 16, 2010, Jones's counsel filed a written objection to the supplemented witness list, claiming unfairness, as the trial date was set for July 19 and the discovery period long had been closed. Counsel did not seek permission to conduct additional discovery.
Ruling on pretrial motions just before trial, the trial judge allowed the Commonwealth's motion to supplement its pretrial memorandum with the witness list. On July 21, 2010, the jury returned a verdict against Jones on all claims, and judgment entered dismissing Jones's complaint. The trial judge denied Jones's pro se motion for a new trial. Jones, acting pro se, filed a timely notice of appeal from the judgment, the order denying his posttrial motion, and from the stipulation of dismissal (see note 1, supra).
Jones was still represented by counsel at the time.
In a supporting memorandum, Jones asserted that his attorney 'was provided the names of several Inmate and D.O.C. staff witnesses . . . but he failed to: A) interview them; [or] b) call them as a material witness.'
On appeal, it appears that Jones's greatest complaint concerns the perceived shortcomings of his attorney. While in a criminal case ineffective assistance of counsel may result in a new trial, that option ordinarily is unavailable in the civil context. In such an instance, a civil legal malpractice suit is warranted. Thus, for the many complaints Jones has concerning trial counsel, this court is not the proper forum.
Jones also claims unfair surprise because of the Commonwealth's late production of its witness list. Of the four witnesses, Jones identifies only Sullivan, Cahill, and Mulvey as causing him concern. As such, he has waived any argument as to Paquin. In any event, the witnesses were known to him and his counsel, and counsel never requested additional time for discovery purposes. Additionally, Jones does not identify the prejudicial effect of the witnesses. Furthermore, absent a transcript, it is difficult to discern any improprieties.
Jones claims, as he did in support of his posttrial motion, that the judge granted a motion allowing the four witnesses to testify 'fifteen minutes' before trial. While the judge did make a ruling to this effect, as the Commonwealth notes in its memorandum in lieu of brief, the Commonwealth had made its supplemented witness list known more than one month before trial, and all the witnesses except possibly Paquin were known to Jones and his counsel well before that. Jones's claim of trial by ambush or surprise is thus unavailing. Ultimately the judge's ruling was discretionary, and here there was no abuse of discretion.
While we are sympathetic to the efforts Jones made in attempting to secure the transcript, the fact remains that none was produced.
We have reviewed all of the points made by Jones and find them to be without merit.
The argument concerning his medical records is somewhat puzzling because he, or his counsel, was in the best position to secure them for trial. Also, while Jones claims that he was not advised properly respecting the stipulation of dismissal as to the University of Massachusetts, the judge was not required to credit him on this point. Also, once again, as before, this grievance is best addressed in another forum.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),