COMMONWEALTH v. NAKO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant was convicted of assault, in violation of G. L. c. 265, § 13A (a). On appeal, the defendant claims that (1) he received ineffective assistance of trial counsel; (2) the prosecutor inappropriately questioned him and misrepresented his testimony in closing argument; and (3) the admission of hearsay statements violated his confrontation rights. We affirm.

Background. On December 16, 2016, the victim's niece lost her cell phone while visiting him at his housing complex. Later, the victim saw a note in the lobby of his apartment building, leaving a telephone number to call to retrieve a lost phone. The victim notified his niece, who called the number on the note. The person who answered the call agreed that the victim could pick up the phone for his niece. Later, the victim called his niece, who came to meet him. The victim appeared scared; he was disheveled, drenched in sweat, and crying. The victim told his niece what had happened and his niece called the police. The police arrived to find the victim still rattled and scared, as if he had been through something traumatic.

The police then interviewed the defendant, who explained that the victim had met him to claim the phone. The defendant stated that the two had an altercation during which the victim called the defendant an asshole. The defendant stated that he felt “disrespected” and that he was “owed something” for doing a “good deed.” He denied having assaulted the victim but admitted having grabbed him by the shirt. While he spoke to the officer, the defendant seemed angry, speaking with a raised voice and clenched fists.

A video recording, obtained from security cameras within the housing complex, showed some of the interaction between the defendant and the victim. The video began with the victim walking down a hallway, turning around, pointing back down the hall, and then continuing to walk away. The defendant then appeared in the same hallway and ran after the victim. The defendant caught up to the victim at an elevator and grabbed the victim's arm, turning him around to face the defendant. The defendant then grabbed the front of the victim's shirt and struggled to pry an item that the victim was carrying under his arm. The defendant got the item and then threw the victim against a wall. A woman stepped out of the elevator, briefly looked at the two men, and then continued on her way. The defendant again approached the victim closely and shook a finger in his face. The defendant began to step back but then charged back at the victim. He raised a fist and swung it at the victim but stopped short of hitting him. The two appeared to exchange words and then the victim headed down a set of stairs. The defendant watched the victim leave and then returned down the hallway.²

Discussion. 1. Ineffective assistance of counsel. The defendant contends that his trial counsel was ineffective in pursuing an “uninformed Bowden-type defense,”³ because that defense could not create reasonable doubt in light of the video that supported the Commonwealth's allegation. At trial, defense counsel argued that the Commonwealth's case was deficient because it had failed to obtain a video from a security camera that may have shown what took place at the entrance of the defendant's apartment, and further failed to investigate the witness who appeared in the video and witnessed some of the altercation. On appeal, the defendant contends that this strategy was uninformed because trial counsel failed to do what he accused the Commonwealth of failing to do, namely, obtaining the video and interviewing the witness. He contends that counsel did not undertake a minimally required investigation. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (to support ineffective assistance of counsel claim, defendant must show that counsel's behavior fell measurably below that of ordinary fallible lawyer).

Having failed to establish the predicate facts for his claim by way of a motion for new trial, the defendant contends that counsel's ineffectiveness is demonstrated indisputably on the trial record. See Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994) (although ineffective assistance of counsel claim generally is best left for trial judge in motion for new trial, it may be resolved on direct appeal when factual basis of claim appears indisputably on record). We disagree. Nothing in the record establishes what steps counsel took or did not take with respect to the video and the witness. Moreover, there is nothing to suggest that further investigation would have yielded anything favorable for the defense.⁴ See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (on ineffective assistance of counsel claim, “there ought to be some showing that better work might have accomplished something material for the defense”).

Even if the defendant had shown some failing of counsel, he did not establish that counsel's incompetence likely deprived him of an otherwise available, substantial ground of defense. See Saferian, 366 Mass. at 96. The Commonwealth had powerful evidence in the form of a video that depicted the crime. The defendant has failed to articulate how a video that may have depicted what took place earlier, at the entrance to the defendant's apartment, could have provided a defense. When pressed at oral argument, defense counsel suggested that it might have presented an opportunity for jury nullification. Yet, jury nullification is not a legal defense and may not satisfy the requirement of an “otherwise available, substantial ground of defence.” Id. See Strickland v. Washington, 466 U.S. 668, 695 (1984) (“An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy ․ ‘nullification’ and the like”); Commonwealth v. Kirwan, 448 Mass. 304, 319 (2007) (“Jury nullification is inconsistent with a jury's duty to return a guilty verdict of the highest crime proved beyond a reasonable doubt”); Commonwealth v. Leno, 415 Mass. 835, 842 (1993) (“We recognize that jurors may return verdicts which do not comport with the judge's instructions. We do not accept the premise that jurors have a right to nullify the law on which they are instructed by the judge, or that the judge must inform them of their power” [quotation omitted] ). The defendant has failed to establish ineffective assistance of counsel.

2. Prosecutorial misconduct. The defendant testified that when the victim grabbed the phone from him and swore at him, he felt assaulted. On cross-examination, over a series of questions, the defendant denied that he felt assaulted by the victim's name-calling, swearing, and finger pointing. Rather, he testified that he was assaulted when the victim grabbed the phone. In closing argument, the prosecutor stated that the defendant testified that he felt assaulted by the victim yelling at him, calling him names, and pointing a finger in his face -- omitting the defendant's repeated testimony that he felt assaulted when the victim grabbed the phone from him. As there was no objection, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 17 (1999); Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 776 (2001).

While the prosecutor's questioning and statement in closing argument may have been objectionable, the issue of what made the defendant feel assaulted did not pertain to the central issue of the case -- whether the defendant assaulted the victim. See Commonwealth v. Jones, 432 Mass. 623, 629 (2000). Moreover, the trial judge instructed the jury that questions put to witnesses were not evidence, that closing arguments were not evidence, that the jurors were to rely on their own collective memory of the evidence, and that it was solely their responsibility to decide any disputed issues of fact. See Commonwealth v. Birks, 435 Mass. 782, 790 (2002) (jury presumed to follow judge's instructions). Under the circumstances, we discern no substantial risk of a miscarriage of justice.

3. Confrontation rights. Finally, the defendant contends that his confrontation rights were violated because he could not cross-examine the victim (who died of an unrelated cause prior to trial) after the victim's hearsay statement was admitted at trial. Again, there was no objection, so we review for a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 17.

The victim's niece testified at trial that she met with the victim after the incident. The prosecutor asked, “And did he tell you what happened?” The victim's niece answered, “Yes.” Further testimony established that, as a result of that conversation, the victim's niece called the police, who responded and investigated by interviewing both the victim and the defendant. Testimony further established that the police ultimately took no action. No hearsay statement of the victim was admitted. Rather, the testimony simply explained how events unfolded. “[E]vidence tending to show relevant context or continuity is admissible.” Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 260 (2011). There was no substantial risk of a miscarriage of justice.

Judgment affirmed.

FOOTNOTES

2.   The defendant testified that, when the victim appeared at his apartment door to retrieve the phone, he asked the victim to dial his niece; he wanted to confirm that the victim had the right to pick up the phone. The defendant claimed that the victim became indignant and grabbed the phone from him. The defendant said that as the victim was leaving, the victim turned around, pointed at him and called him an asshole. The defendant said that at that point he felt he had to defend the phone, so he ran after the victim in order to get it.

3.   See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980).

4.   There was testimony at trial that the video of the hallway outside the defendant's apartment did not “capture[ ] any movements.” Additionally, it is questionable what support the witness could offer the defendant since she appeared mid-conflict and quickly walked away.