COMMONWEALTH v. SEGREVE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A District Court judge revoked the defendant's probation after finding that he had committed a new criminal offense, assault and battery on a family or household member. Later, the same judge denied the defendant's motion for a new probation revocation hearing, which the defendant styled as a motion for a new trial. In these consolidated appeals from the revocation order and the order denying the motion for a new trial, the defendant's sole argument is that his hearing counsel was constitutionally ineffective. We affirm.

Background. On March 2, 2018, a complaint issued against the defendant for assault and battery on a family or household member. At the time, the defendant was on probation as a result of a guilty plea he tendered the previous year. After the probation department issued a violation notice based on the new charge, a jury found the defendant not guilty in his underlying criminal trial. The probation violation hearing commenced less than two weeks later.

At the hearing, the victim testified that she and the defendant had an argument, which quickly escalated. The victim asked the defendant several times to leave her alone. Instead, the defendant followed the victim, put both hands around her throat, and choked her. The victim believed that the defendant “was under the influence of alcohol” because “he was yelling and screaming like he does when he's intoxicated.”

On cross-examination, defense counsel questioned the victim about the testimony she gave at the defendant's criminal trial. In particular, counsel asked, “[Y]ou testified at the [criminal] trial ․ that he threw a George Foreman grill at you, as well?” When the victim answered affirmatively, counsel asked, “But you didn't mention that today in your testimony; did you?” The victim admitted that she had not.

At the close of the evidence, the judge found that the victim's testimony was credible and that the Commonwealth had proved by a preponderance of the evidence that the defendant violated his probation. After hearing arguments on disposition, the judge revoked the defendant's probation and sentenced him to serve thirteen months in the house of correction. About a year later, the defendant moved for a new trial, claiming ineffective assistance of counsel. The judge denied the motion without an evidentiary hearing.

Discussion. To succeed on a claim of ineffective assistance of counsel, the defendant must prove, first, that counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and, second, that the deficient performance prejudiced the defendant by “likely depriv[ing] [him] of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant contends that hearing counsel was ineffective for two reasons: he introduced evidence of “uncharged misconduct,” namely, the evidence that the defendant threw a George Foreman grill at the victim; and he failed to obtain the transcripts from the criminal trial or request a continuance so that he could obtain them.

The defendant has failed to prove that hearing counsel was ineffective for eliciting the evidence about the George Foreman grill. When an ineffective assistance claim is based on a strategic decision by counsel, “the test is whether the decision was ‘manifestly unreasonable when made.’ ” Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). Here, while the defendant did not submit an affidavit from hearing counsel explaining the reason for his strategy, it is nonetheless apparent that hearing counsel made a tactical choice to elicit the evidence to impeach the victim's credibility. That choice was rational and not manifestly unreasonable, especially given that the victim's credibility was central to the Commonwealth's case. See Kolenovic, supra (manifestly unreasonable standard “is essentially a search for rationality in counsel's strategic decisions”).

The defendant has likewise failed to prove that hearing counsel was ineffective for failing to obtain the transcripts from the criminal trial or for failing to request a continuance. There is no evidence in the record that supports the defendant's claim that the transcripts could have been prepared by the time of the probation violation hearing. And without an affidavit from hearing counsel, we do not know his reasons for not requesting a continuance.² Furthermore, the defendant has failed to show that he was prejudiced by hearing counsel's performance. The defendant's sole assertion of prejudice is that, had hearing counsel obtained the transcripts, he would have discovered that the victim did not testify at the criminal trial that the defendant was intoxicated at the time of the assault. Although the defendant argues that hearing counsel could have impeached the victim with this inconsistency, “[i]n general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance.” Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). “[A]bsent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the [fact finder]'s conclusion.” Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). Here, the question of the defendant's intoxication was peripheral, and the judge determined that additional impeachment would not have changed his finding of a probation violation. The defendant has therefore failed to show that he was deprived of a substantial ground of defense.

The orders revoking the defendant's probation and denying his motion for a new trial are affirmed.

So ordered.

FOOTNOTES

2.   We note that hearing counsel stated at the probation violation hearing that he “requested a transcript but they haven't ․” The rest of his comment is marked as “indiscernible.”