COMMONWEALTH v. RAMOS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the District Court, the defendant, Jonathan Ramos, was acquitted of assault and battery on a police officer, G. L. c. 265, § 13D, and disorderly conduct, G. L. c. 272, § 53, and convicted of resisting arrest, G. L. c. 268, § 32B. He moved for a new trial, alleging ineffective assistance of counsel, and requested an evidentiary hearing on the motion. The motion judge, who was also the trial judge, denied the motion after a nonevidentiary hearing.

The defendant appeals from the order denying his motion; he argues that the judge abused his discretion by denying the request for an evidentiary hearing. Although we express no view on whether trial counsel's conduct was, in fact, ineffective, we conclude that the defendant's motion raised and adequately supported a substantial issue with respect to that question. Accordingly, we vacate the order denying the motion for new trial and remand the case for an evidentiary hearing.

Background. The charges in this case arose out of an incident on April 26, 2014. The defendant was attending a family birthday celebration at his mother's home in Springfield, when the disruptive behavior of another guest, Jesus Merced, prompted a call to the police.

At trial, the prosecution called Springfield Police Officer Matthew Rief as its witness. Rief was the first of several officers to arrive at the location of the party in response to the 911 call. According to Rief, after the defendant failed to comply with his instruction to quiet down, Rief attempted to arrest him. Rief testified that the defendant was uncooperative, first pulling away from Rief and then hitting Rief in the head with a closed fist. According to Rief, although he stepped back from the defendant, the defendant continued to come toward him with “cl[e]nched fists”; at that point, Rief struck the defendant with a collapsible baton. Rief testified that although he intended to hit the defendant in the arms with the baton, he accidentally struck the defendant in the head, opening a gash in his forehead.²

The defendant called both his brother, Edwin Rolon, and his mother, Janet Febus, as trial witnesses; both testified that they were present during the interaction between Rief and the defendant. Both Rolon and Febus denied that the defendant struck Rief, and neither provided any evidence that Rief told the defendant that he was under arrest at any time before Rief hit the defendant with the baton.³

The defendant, who elected to testify at trial, said that he encountered Rief as Rief was trying to arrest Merced, and that he tried to talk Rief out of arresting Merced by offering to take Merced home. When asked on direct, “And then what did [Merced] do?” the defendant answered that Rief told the defendant that the defendant was “under arrest.” Although that statement was not responsive to the question trial counsel had asked, trial counsel later returned to the subject, asking, “And when you explained to the police officer that you would take [Merced] away, what did he say to you specifically?” The defendant answered, “He said ․ ‘You're under arrest’ -- no, ‘You're going to jail. You're under arrest.’ ” The defendant testified that after protesting the arrest on the grounds that “[he was] not the problem here,” Rief “grabb[ed] [him].” He testified that he “pulled off” from Rief's grip, with the result that Rief fell to the ground. The defendant testified that Rief then stood, ordered him to the ground, and when the defendant responded to the command by “just look[ing] at [Rief],” Rief struck him in the head with his baton. Ramos also testified that after Rief struck him, Ramos left the front yard, bleeding, and went inside the home.

Discussion. Presented with a motion for new trial, a judge is not required to hold an evidentiary hearing “unless the defendant raises a ‘substantial issue,’ based on the seriousness of the claim and the adequacy of his showing.” Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 n.8 (2017), quoting Commonwealth v. Chatman, 466 Mass. 327, 334 (2013). See Commonwealth v. Holbrook, 482 Mass. 596, 606-607 (2019). See also Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). We review the judge's decision whether to hold a hearing under an abuse of discretion standard. See Chatman, supra.

As he did before the motion judge, the defendant argues that his trial counsel was ineffective in two ways: first, in misapprehending the elements of the crime of resisting arrest; and second, in failing to obtain and use the records of medical treatment that the defendant required as a result of the arresting officer's striking him with a collapsible baton. The defendant's burden in doing so, under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), was to show that as to each of these issues, his counsel's work “fell measurably below that of an ordinary, fallible lawyer” thereby depriving him of “an otherwise available, substantial ground of defence.” Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Saferian, supra.

“A claim of ineffective assistance of counsel ․ readily qualifies as a serious issue.” Commonwealth v. Denis, 442 Mass. 617, 629 (2004). Accordingly, in deciding whether the defendant raised a “substantial issue” entitling him to an evidentiary hearing, we focus on the second, significantly closer question of the adequacy of the defendant's evidentiary showing to support his ineffective assistance claims, see Commonwealth v. Lys, 481 Mass. 1, 6 (2018), i.e., whether “the motions and supporting materials filed by [the] defendant ․ contain sufficient credible information to cast doubt on the issue.” Denis, supra. We emphasize that in vacating the judge's denial of the defendant's motion and remanding the case, we do not second guess the merits of the judge's decision to deny the motion for new trial. We remand only because we conclude that the defendant made the showing entitling him to an evidentiary hearing on that motion.

Misapprehension of elements of resisting arrest. The defendant argues that his trial counsel's misunderstanding of the law caused him to concede the elements of resisting arrest at a pretrial conference and in his opening statement; led him to defend the charge on the invalid theory that an arrestee must only submit to a justified arrest; and resulted in his failing to provide appropriate advice about the wisdom of the defendant's choice to testify at trial. Although we are not persuaded that, as the defendant argues, his counsel made any pretrial concession of the elements of the offense, let alone a concession that could have bound or otherwise prejudiced the defendant, we conclude that, as to his remaining arguments, the defendant has provided “sufficient credible information to cast doubt on the issue[s],” thus entitling him to an evidentiary hearing. Denis, 442 Mass. at 629.

In his opening statement, counsel told the jury that the defense witnesses, including the defendant himself, would testify that “Officer Rief put his hands on Mr. Ramos to arrest him -- for something he hadn't done -- and that during the course of that, Mr. Ramos pulled himself away, causing Officer Rief to fall to the ground.” Later, counsel elicited testimony from the defendant that the defendant had known that Rief was attempting to arrest him, but that he had pulled away because he knew that he had done nothing wrong.

We conclude that the extracts from the opening statement and the testimony that counsel elicited from the defendant raise a question about whether counsel incorrectly understood the law to require that an arrestee exert force beyond merely “pull[ing] away,” and be subject to a lawful arrest, or both, in order to meet the statutory requirements under G. L. c. 268, § 32B.⁴ , ⁵ See Commonwealth v. Grandison, 433 Mass. 135, 143-145 (2001) (defendant's stiffening arms and “pul[ling] away” from arresting officer sufficient to create “risk of bodily injury” required to prove resisting arrest); Commonwealth v. Moreira, 388 Mass. 596, 601 (1983) (“in the absence of excessive or unnecessary force by an arresting officer, a person may not use force to resist an arrest by one who he knows or has good reason to believe is an authorized police officer, engaged in the performance of his duties, regardless of whether the arrest was unlawful in the circumstances”). If counsel was indeed proceeding on an incorrect understanding of the elements of resisting arrest, that misunderstanding could have prejudiced the defense by, for example, informing the decision to have the defendant testify, despite his vulnerability to arguably damaging admissions regarding his response to being placed under arrest.

It is true, as the Commonwealth argues, that trial counsel's choices in making the statements and eliciting this testimony could have been the result of a reasoned, if ultimately unsuccessful, strategic choice to rely on the jurors' sympathetic response to the unfairness of the arrest, as the defense presented it, and the serious injury that the defendant suffered at Rief's hands. See Commonwealth v. Lopez, 447 Mass. 625, 626-627, 629 (2006); Commonwealth v. Claudio, 26 Mass. App. Ct. 218, 221 (1988), S.C., 405 Mass. 481 (1989). See also Commonwealth v. Kolenovic, 471 Mass. 664, 675 (2015) (strategic choices not “ineffective assistance” where rational, even if unsuccessful); Commonwealth v. Durakowski, 58 Mass. App. Ct. 92, 93 (2003) (counsel may concede guilt on lesser offense to persuade jury to acquit on more serious charge). Nothing in the record, however, gives us insight into that question, and, as we have noted, the defendant was unable to obtain an affidavit from his attorney to clarify the point. Under the circumstances, we are convinced that the only way to resolve the issue whether the decision was tactical, and, if so, whether the tactic was reasonable, see Commonwealth v. Holland, 476 Mass. 801, 812 (2017) (counsel's tactical decision constitutes ineffective assistance only if “manifestly unreasonable” when made), would have been through an evidentiary hearing at which the defendant could seek to call trial counsel to testify. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 545-546 (2014) (defendant entitled to evidentiary hearing with opportunity to subpoena trial counsel where counsel declines to provide affidavit speaking to existence of strategic decision-making).

For substantially the same reasons, we conclude that an evidentiary hearing was required to address the defendant's claim that his trial counsel provided him with inaccurate advice, absent which, he averred, he would have opted not to testify. Although the motion judge was free to reject the defendant's affidavit and his statements there about what he told his attorney about his likely testimony, what advice his attorney gave, and whether he would have testified had he known the true state of the law, see Commonwealth v. Colon, 439 Mass. 519, 530 (2003), that affidavit was not the only support for the defendant's argument. Given, for example, the contradiction between, on the one hand, trial counsel's representation in his opening that the defendant would testify to his pulling away from Rief's attempt to arrest him, and on the other hand, trial counsel's posttrial indication that he had been surprised by the defendant's testimony that Rief had told the defendant that he was under arrest, the record raised a question of fact that we conclude should not have been resolved without an evidentiary hearing.⁶

Failure to obtain and introduce medical records. As we note above, the defendant suffered a skull fracture when struck by Rief's baton. Defense counsel did not introduce the medical records related to this injury, and the judge, in the exercise of his discretion, did not permit the defendant to testify to his diagnosis.⁷ Additionally, in support of his motion for new trial, the defendant offered factual support for his belief that trial counsel failed to obtain and thus, presumably, to review, his postincident medical records before trial.⁸ Given the seriousness of the defendant's injuries caused by the baton strike, he has made an adequate showing of ineffective assistance to warrant an evidentiary hearing. See Commonwealth v. Alvarez, 433 Mass. 93, 102 (2000) (failure to obtain and review medical records ineffective assistance where records likely to speak to availability of defense).

While, as the Commonwealth argues, there may have been valid strategic reasons on which trial counsel could have decided not to use the records -- notably, indications in the record that the defendant's blood screens indicated the presence of alcohol, despite the testimony of all defense witnesses that the defendant had not consumed any alcohol on the night of his arrest -- there was no explanation for why counsel failed even to request them before trial.

Because we conclude that additional evidence from trial counsel could resolve at least some of the questions that the defendant raised in his motion for new trial, we conclude that it was an abuse of discretion to deny the defendant the opportunity to inquire of him at a hearing. In doing so, however, we emphasize that nothing in our decision should be construed as a failure to recognize that the trial judge is ordinarily best positioned to decide a motion for new trial, see Commonwealth v. Torres, 71 Mass. App. Ct. 723, 725 n.2 (2008), S.C., 453 Mass. 722 (2009), or as an attempt to abrogate the proposition that “[m]otions for a new trial are granted only in extraordinary circumstances,” Commonwealth v. Comita, 441 Mass. 86, 93 (2004).

The order denying the defendant's motion for new trial is vacated. The case is remanded to the District Court for an evidentiary hearing on the defendant's motion for new trial.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   The defendant's medical records document the fact that, in addition to cutting his forehead, the baton strike caused a skull fracture that required surgical repair. As we will discuss, the defendant has provided some evidence that his trial attorney failed to obtain those records before trial. The medical records were not introduced in evidence.

3.   Rolon testified that although Rief told the defendant to “come here,” he did not tell the defendant that he was under arrest. Febus was not asked any questions on the point, and provided no evidence about it.

4.   Although, as the defendant's appellate counsel avers, when contacted about this appeal, trial counsel indicated that he was aware that “the law does not permit self-help to avoid even an illegal arrest,” and that he so advised the defendant before trial, trial counsel declined to provide an affidavit to that effect in support of the motion for new trial. See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550-551 (2014) (negative inference derived from defendant's failure to obtain affidavit of trial counsel blunted when “successor counsel file[s] affidavits attesting to [trial] counsel's lack of cooperation”).

5.   We likewise conclude, based on counsel's argument for a required finding of not guilty, that the defendant has raised a similar issue with regard to counsel's belief that in order to be convicted of resisting arrest, the defendant had to be made aware of the reason for the arrest. The defendant has not, however, persuaded us that he was prejudiced.

6.   To the extent that the Commonwealth argues that an evidentiary hearing could have turned up no evidence beyond that already included in the parties' papers, we note that the judge has the authority to compel the attendance of witnesses.

7.   He was, however, permitted to testify to the injury visible to him, and to some of the ongoing effects of the baton strike, including pain, impaired vision, and the need for continued medical treatment.

8.   It appears that the records were first requested after trial by an attorney representing the defendant in a different action.