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Appeals Court of Massachusetts.



Decided: March 19, 2021

By the Court (Massing, Henry & Ditkoff, JJ.1)


After a jury trial in the Superior Court, the defendant, Juan Martinez, was convicted of multiple crimes arising from a series of incidents involving his former girlfriend (victim) and her sister, who shared an apartment. He subsequently filed a motion for a new trial, which was denied. On appeal from the judgments and from the order denying his motion for a new trial, the defendant claims that trial counsel rendered ineffective assistance and that the evidence was insufficient with respect to one conviction for breaking and entering with intent to commit a misdemeanor. We affirm the judgments and the order denying his motion for a new trial.

Discussion. 1. Ineffective assistance of counsel. The victim testified that during one incident the defendant forced her legs open and penetrated her vagina with his penis and tongue. About five days after the incident she took a photograph of bruises on her legs, which was admitted in evidence; she testified that the defendant caused the bruising when he forcefully separated her legs. The defendant claims that trial counsel was constitutionally ineffective because he failed to introduce an ambulance record, dated two days after the rapes but before the victim took the photograph, which states that the victim's upper and lower right and left legs were “[a]ssessed with [n]o [a]bnormalities.” He claims that the ambulance report would have “powerfully undermin[ed]” the photograph and the victim's credibility.

To prevail on a claim of ineffective assistance of counsel, the defendant must show both that counsel's behavior fell “ ‘measurably below that which might be expected from an ordinary fallible lawyer,’ [the performance prong] and that counsel's poor performance ‘likely deprived the defendant of an otherwise available, substantial ground of defence’ [the prejudice prong].” Commonwealth v. Millien, 474 Mass. 417, 430 (2016), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). With respect to the prejudice prong, “where counsel was ineffective for failing to present an available ground of defense, that defense is ‘substantial’ for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented.” Millien, supra at 432.

Even if trial counsel had not “overlooked” the ambulance report, as he claimed in his affidavit, his failure to pursue it did not amount to a deficient performance depriving the defendant of a substantial defense. “Generally, failure to impeach a witness does not amount to ineffective assistance of counsel.” Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). Defense counsel vigorously attacked the victim's credibility. Indeed, he pointedly attacked the evidence regarding the bruises on the victim's legs by cross-examining her about the timing and circumstances surrounding the taking of the photograph, eliciting admissions that she did not tell the ambulance personnel about the bruises on her legs, that she did not tell the nurses or doctor at the hospital about them, and that the record of her hospital examination did not mention them.

“[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 jury's conclusion.” Fisher, 433 Mass. at 357. The ambulance record at issue here was not a powerful form of impeachment. Although the victim was taken to the hospital by ambulance for treatment of a bite on her shoulder, and the bite mark is mentioned elsewhere in the ambulance report, the relevant section of the report states that her upper and lower right and left arms, like her legs, were “[a]ssessed with [n]o [a]bnormalities.” It also states that her face, ears, eyes, hands, feet, heart, chest -- even her genitalia -- were “[a]ssessed with [n]o [a]bnormalities.” The ambulance record is thus flimsy evidence that emergency medical personnel actually conducted a thorough examination, especially in light of the short duration of the ambulance trip, the victim's admission on cross-examination that she did not report any injuries other than the bite on her shoulder, and her testimony (also on cross-examination) that she arrived at the hospital wearing slacks. Thus, the defendant's motion for a new trial did “not raise a substantial issue” of ineffective assistance, and the motion judge did not abuse her discretion in denying it without a hearing. Commonwealth v. Denis, 442 Mass. 617, 628 (2004).

2. Sufficiency of the evidence. We are not persuaded by the defendant's argument that because he had already violated the G. L. c. 209A order by approaching the victim's apartment, the Commonwealth failed to prove that he had the intent to violate the order once he broke into the apartment. The c. 209A order not only required the defendant to stay away from the victim's apartment, but also prohibited him from contacting or abusing her. The evidence, taken the in light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), permitted the jury to find the defendant violated the order both outside the apartment, by failing to stay away, and inside, by contacting and abusing the victim. See Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 523 (2017) (affirming twelve convictions for violating single restraining order where violations were “separate, distinct, and separated by some interval”). Likewise, the jury could have relied on the defendant's conduct inside the apartment to conclude that he entered with the intent to contact or abuse the victim, in violation of the order. This court's decision in Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 242 (2018), which holds that a stay-away order is violated “when the defendant is positioned within sufficient proximity to the property so that [he] would be able to contact or abuse the protected party,” does not imply that a defendant has carte blanche to contact or abuse the party after breaching the no-contact zone.

Judgments affirmed.

Order denying motion for new trial affirmed.

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