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Appeals Court of Massachusetts.



Decided: April 14, 2021

By the Court (Milkey, Kinder & Sacks, JJ.1)


A District Court jury convicted the defendant of assault and battery by means of a dangerous weapon.2 The defendant filed a motion for a new trial alleging ineffective assistance of counsel, and the trial judge denied that motion after an evidentiary hearing. In this consolidated appeal, the defendant argues that trial counsel was constitutionally ineffective by failing to review a report by an investigator that one of the defendant's former attorneys had hired, and that the judge abused his discretion in not allowing the motion for a new trial on that ground. We affirm.

The victim of the assault and battery was the defendant's then-romantic partner. The two had had an “off-and-on” relationship for seventeen years, and they shared two children. It was uncontested that the defendant and the victim had a verbal fight on the night of February 28, 2018, during which the defendant called the victim names such as “slut.” According to the victim, the defendant at one point pressed an Xbox controller into her face for two to three minutes, causing her pressure and pain. The defendant denied this.

The victim went to the police a few days later and discussed other concerns about the defendant's well-being. The involvement of the police eventually led to the defendant being charged. The defendant was arraigned on March 5, 2018, and the trial occurred on December 11, 2018. In the intervening nine months, the defendant was represented by three different attorneys. The defendant asked that his first attorney be replaced in June of 2018, and his second attorney represented him for just over two weeks.

While she was on the case, the defendant's first attorney obtained court funding for a private investigator who interviewed the victim. During the interview, the victim told the investigator that she felt pressured by the police. The investigator reported this orally and in writing to the first attorney. The third attorney, who tried the case, testified that he was unaware of the investigator's having been hired, and therefore also was unaware of the victim's statement about having felt pressured.3 At the evidentiary hearing on the motion for a new trial, the third attorney testified that had he been aware of the victim's statement, he would have pursued that issue in his cross-examination of the victim.

Discussion. To demonstrate ineffective assistance of counsel, the defendant must satisfy both prongs of a familiar two-pronged test. First, the defendant must prove that his counsel engaged in conduct that fell “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Second, the defendant must show that this “likely deprived [him] of an otherwise available, substantial ground of defence.” Id. The judge concluded that because the defendant's third attorney did not have a substantive conversation with the first attorney, and did not check the docket (which would have revealed that the investigator had been hired), his behavior may have been “inattentive.” In effect, the judge assumed arguendo that the defendant satisfied the first prong of the Saferian test and moved on to the second. We do the same.

According to the investigator's report, after stating that she felt pressure from the police, the victim went on to explain that her real goal in contacting the police was to get help for the defendant, not to see him prosecuted. She also reiterated to the investigator that an “abusive event” had occurred. Moreover, at trial, the victim testified that she “very strongly” remained in love with the defendant and just wanted him to get him help. Defense counsel also subjected the victim to vigorous cross-examination.

The judge concluded that in this context, the revelation that the victim had told an investigator that she felt pressure from the police to file a criminal complaint would not have affected the jury's verdict. The pressure described by the victim at the new trial hearing arose only after she had already told the police of the assault itself, and the victim testified that what she told the police about the assault (and later reiterated at trial) was true. Where, as here, the motion judge was the trial judge who heard the same evidence the jury heard, his conclusion that a new trial is not warranted is entitled to “special deference.” Commonwealth v. Garuti, 454 Mass. 48, 56-57 (2009), quoting Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). The judge did not abuse his discretion in denying the motion for a new trial.

We affirm both the judgment and the order denying the defendant's motion for new trial.

So ordered.



2.   The jury acquitted the defendant of malicious destruction of property.

3.   The defendant himself testified at the evidentiary hearing on the motion for new trial that he had told his third attorney about the investigator's having been hired. Thus, there was conflicting evidence on this point. The judge found it unnecessary to resolve that issue, deciding as he did that the defendant in any event was unable to show sufficient prejudice to warrant a new trial.

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