COMMONWEALTH v. MADERA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On count 1, armed assault with the intent to murder, the defendant was found guilty only as to the lesser included offense of assault, G. L. c. 265, § 13A (a); on count 2, he was found guilty of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); on count 3, he was found guilty of assault and battery on a police officer, G. L. c. 265, § 13D; and on count 6, he was found guilty of making a threat to commit a crime, G. L. c. 275, § 2. The judge dismissed the assault conviction on count 1 as duplicative of the conviction on count 2 of assault and battery by means of a dangerous weapon. We stayed the defendant's direct appeal to allow him to bring a motion for a new trial based on a claim of ineffective assistance of counsel. After an evidentiary hearing, the motion judge, who was also the trial judge, denied the motion. The defendant appealed that order and the two appeals have been consolidated. Before us, the defendant argues only that he should have a new trial on the conviction on count 2, assault and battery by means of a dangerous weapon.

On appeal, the defendant contends that trial counsel was ineffective for failing to obtain and to introduce the defendant's hospital records from a visit undertaken while he was in custody shortly after the incident when the crimes at issue took place. Specifically, he argues that the hospital records would have bolstered his defense of self-defense and his testimony that his altercation with the victim began with the victim approaching and hitting the defendant five or six times with a baseball bat, including on his shoulder and his toe. The hospital records indicated that his primary complaint was an injury to his big toe and a secondary complaint was pain in the shoulder, both caused, the defendant claimed, by being hit with a baseball bat. Both were X-rayed, nothing was broken, and the toe was treated. The diagnosis is listed as contusions to the big toe and the shoulder, and a subungual hematoma of the toe.

In order to make out a case of ineffective assistance of counsel warranting a new trial a defendant must meet the well-known two-prong standard articulated in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Duart, 477 Mass. 630, 637 (2017). We review for significant error of law or other abuse of discretion. See Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015).

Under the first prong the defendant must show that the work of counsel fell below that of “an ordinary fallible lawyer.” Saferian, supra. The defendant told trial counsel only one month before trial that he (the defendant) had visited the hospital following the altercation that formed the basis of his convictions. The judge concluded that a tactical decision made by trial counsel at the defendant's request not to seek the hospital records, because to do so would likely require a continuance of the trial date, was a reasonable tactical decision, given the unwillingness of the victim and his friend to testify at that time. The judge thus concluded that the defendant failed to satisfy the first prong of Saferian. See Commonwealth v. Martin, 427 Mass. 816, 822 (1998) (“An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made”).

As the defendant notes, however, from their first meeting many months before that, the defendant had told trial counsel that he was defending himself from an attack by the victim with a baseball bat, and that the victim had struck him with the bat. It is undisputed that counsel never asked the defendant whether he had sought or been given medical attention following the altercation. Had counsel done so, the defendant argues, counsel would have had months to obtain the hospital records and no continuance would have been needed. This failure to investigate, which neither the judge nor the Commonwealth has addressed, does meet the standard articulated under Saferian's first prong. See Commonwealth v. Alvarez, 433 Mass. 93, 102 (2000), quoting Strickland v. Washington, 466 U.S. 668, 691 (1984) (“any decision by counsel ‘not to investigate must be directly assessed for reasonableness in all the circumstances’ ”).

Under the second Saferian prong, the defendant must show that counsel's ineffective assistance “has likely deprived the defendant of an otherwise available, substantial ground of defence.” 366 Mass. at 96. “[W]ith respect to the second prong of the Saferian test, the defendant must show that ‘better work might have accomplished something material for the defense.’ Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).” Commonwealth v. Phinney, 446 Mass. 155, 162 (2006).

The crux of this case was whether the defendant, who concededly hit the victim with a baseball bat, was acting in reasonable self-defense. The jury necessarily found beyond a reasonable doubt that he was not. The defendant, the only percipient witness to the beginning of the encounter, testified that the intoxicated victim had initiated the altercation by attempting to run over the defendant with his truck, and that the victim then attempted to beat him with the bat. The victim was, according to the defendant's testimony, accompanied by a knife-wielding confederate.¹ The defendant, after managing to wrest the bat from the victim, hit him with it because the victim continued to aggressively approach him. The defendant did testify that he was taken to the hospital, but the prosecutor in closing, suggesting that it had been proven beyond a reasonable doubt that the defendant had brought the bat to, and initiated, the encounter, disputed that the defendant suffered injuries consistent with self-defense: “He was not self-defending himself. Did he have any injuries on his body that would be consistent with someone who was struggling? Did he have any bruises from his hand from blocking the bat? Did he have any cuts, any abrasions? Was he bleeding anywhere? Was he limping? No.”

Though they record no serious injury, the hospital records containing the defendant's contemporaneous statements to hospital staff, which would have been admissible as statements made for the purpose of medical diagnosis or treatment, see Commonwealth v. DeOliveira, 447 Mass. 56, 62 (2006), that he was hit in the shoulder and the toe when he was attacked by someone with a bat, as well as the diagnosis of contusions to both the shoulder and the toe, would have rendered the defendant's account of the genesis of the altercation, and of the need for self-defense, more credible.

The judge concluded that “[t]he evidence did not show that at the time [the defendant] was observed striking [the victim], he acted justifiably in his own defense. At best, it illustrated the use of excessive force.” But, as the judge properly giving the self-defense instruction implies, self-defense was “fairly raised by the evidence.” Commonwealth v. Stokes, 374 Mass. 583, 587 (1978). It may be that the jury concluded that the defendant used excessive force in self-defense. But such a conclusion was not compelled by the evidence, which included the defendant's testimony that the victim struck him five or six times with the baseball bat and was accompanied by a knife-wielding confederate. The jury may have disbelieved his story and concluded, as the prosecutor urged, that the defendant was never hit with a bat, and never had any need to defend himself.

Consequently, we conclude that had counsel timely investigated, obtained, and introduced the hospital records, it “might have accomplished something material for the defense.” Satterfield, 373 Mass. at 115. The motion for new trial should have been allowed as to count 2, and we reverse the portion of the order denying it. The judgment with respect to count 2 (assault and battery by means of a dangerous weapon) is vacated and the verdict is set aside. The remaining convictions are affirmed. We remand the case for further proceedings consistent with this memorandum and order. See Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 736 (2012).

So ordered.

reversed in part; vacated in part; affirmed in part and remanded.

FOOTNOTES

1.   The victim and his confederate each asserted his privilege under the Fifth Amendment to the United States Constitution and refused to testify.