COMMONWEALTH v. MANZO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury-waived trial in the District Court, the defendant was convicted of assault and battery by means of a dangerous weapon on a person sixty years or older, G. L. c. 265, § 13K. The conviction was based on evidence that the defendant struck her sixty-nine year old neighbor in the face with a snow shovel after the neighbor blew snow in the direction of the defendant's driveway. On appeal, the defendant claims her trial counsel was ineffective for failing to seek recusal of the trial judge and failing to present an adequate claim of self-defense. We affirm.

To establish that trial counsel was constitutionally ineffective, the defendant must show that trial counsel's performance demonstrated “serious incompetency, inefficiency, or inattention ․ falling measurably below that which might be expected from an ordinary fallible lawyer” that “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, the defendant's ineffective assistance claim is raised for the first time in this direct appeal. We resolve such claims on direct appeal only when the factual basis of the claims appears indisputably in the trial record. Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). “[W]hen the trial record provides an insufficient factual basis for appellate review, the claim of ineffective assistance is ‘best left for resolution in the first instance by the trial judge on a motion for new trial.’ ” Id., quoting Gibney v. Commonwealth, 375 Mass. 146, 148 (1978). Such is the case here.

The defendant first claims that her trial counsel was ineffective for failing to seek recusal of the trial judge because the trial judge had granted a harassment prevention order against the defendant over one year earlier. It is well established that judicial bias or prejudice requiring recusal must arise from an extrajudicial source and not from something learned in the course of the judge's regular duties. Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). Here, the record is silent regarding the defendant's claim of judicial bias. Neither the trial judge nor trial counsel referred to the prior proceeding at any time. Rather, the record reflects that the defendant chose, after consultation with trial counsel and a full colloquy with the trial judge, to waive her right to a jury and proceed to trial before the trial judge. The defendant has not supported her argument regarding judicial bias with her own affidavit or one from trial counsel. Thus, the factual basis for the ineffective assistance claim does not appear indisputably in the record.

The defendant's claim that trial counsel was ineffective for failing to obtain and introduce the defendant's medical records in support of her self-defense argument is equally unavailing. There is nothing in the record that establishes that the medical records exist, much less that their content supports a claim of self-defense. In short, on the record before us we see no reason to disturb the judgment.

Judgment affirmed.