Skip to main content


Reset A A Font size: Print

Appeals Court of Massachusetts.



Decided: October 22, 2021

By the Court (Vuono, Blake & Englander, JJ.1)


Following a trial in the Juvenile Court, a jury found the juvenile delinquent on charges of strangulation, and assault and battery. The juvenile appeals, arguing primarily that (1) there was error arising from his counsel's failure to request a self-defense instruction -- either the juvenile was denied his right to effective assistance of counsel, or alternatively, the judge erred by not giving a self-defense instruction sua sponte, and (2) the judge erroneously denied his motion in limine to redact the victim's medical records. We affirm.

Background. At trial, the victim, Amy,2 testified that she and the juvenile were high school students who had dated for approximately one and one-half years before the incident at issue. On December 15, 2017, Amy went to the juvenile's apartment to “talk about the relationship being over and that he needed to understand that.”

Once Amy arrived at the juvenile's apartment, Amy and the juvenile argued, and Amy attempted to leave the apartment. The juvenile closed the door and told her not to leave. As the argument continued, Amy testified that the juvenile pushed her down on the bed, and that “[h]e was on top of me, choking my neck. And I thought that I was running out of air. I told him that I couldn't breathe well. But he wouldn't stop.” Amy testified that she then scratched the juvenile's face in self-defense. The juvenile was angry and told Amy she could not leave until his face stopped bleeding.

Amy testified that she left the apartment multiple times, but that each time the juvenile pulled her back into the apartment. Amy was able to leave the apartment for the final time only after a neighbor arrived and told the juvenile to allow her to leave. Amy and her mother testified that later that evening Amy had bruises on her neck, arms, and legs. The bruises were photographed by police that evening, and the photographs were introduced in evidence at trial.

The juvenile testified at trial and provided a different version of events. He claimed that he and Amy argued verbally for five minutes before Amy jumped at him to scratch his face. The juvenile testified that on multiple occasions during this argument, he held Amy's upper arms to prevent her from scratching him. The juvenile denied physically preventing Amy from leaving the apartment, and denied strangling her. At a sidebar conference during the juvenile's testimony, the juvenile's counsel twice represented to the judge, in response to objections from the Commonwealth, that “this is not a self-defense case.”3

Amy received medical care the morning after the incident and her medical records were admitted in evidence, with a number of redactions. The medical records contained the unredacted phrase “[m]ultiple bruises on neck, jaw, arm, leg the distribution and shape/size of which are consistent with heavy fingertip pressure.” This sentence was addressed in defense counsel's pretrial motion in limine, and was admitted over the juvenile's objection. At the close of trial, a jury found the juvenile delinquent on the strangulation and assault and battery charges, but acquitted the juvenile of kidnapping.

Discussion. 1. Self-defense instruction. The juvenile argues that he was deprived of his right to effective assistance of counsel due to counsel's failure to request a self-defense instruction, or, alternatively, that the judge erred by failing to give a self-defense instruction sua sponte. We disagree.

As to the juvenile's argument regarding ineffective assistance of counsel, the juvenile has the burden of proving that counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and that it “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We begin by noting that there has been no motion for new trial filed here, and that accordingly the juvenile has not submitted an affidavit from trial counsel. The juvenile's claim thus presents “the weakest form of [an ineffective assistance] challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).

The juvenile has not met his burden here. Indeed, from what appears in the record, trial counsel plainly had a reason not to request a self-defense instruction, because such an instruction could only have applied to one of the charges the juvenile faced. The juvenile may have been entitled to a self-defense instruction as to the assault and battery charge, based on his testimony that all he did was grab Amy's arms after she attacked him.4 As to the strangulation charge, however, an instruction on self-defense was not warranted because the juvenile denied grabbing Amy's neck. That testimony from the juvenile was inconsistent with a contention that strangulation occurred, but in self-defense. Based on the record before this court, trial counsel could reasonably have made a strategic decision to refrain from requesting a self-defense instruction as to only one of the charges, to avoid confusing the jury and distracting from counsel's fundamental argument that the victim should not be believed -- a strategic decision evidenced by counsel's repeated protestations that this was not a self-defense case.

As to the juvenile's argument that the judge should have given a self-defense instruction sua sponte, where trial counsel did not request such an instruction, it is generally not error for a judge not to give one. Commonwealth v. Waller, 486 Mass. 72, 75 (2020). Trial counsel must make strategic decisions when trying a case, and instructing on an unrequested defense sua sponte could actually undermine counsel's chosen trial strategy. Commonwealth v. Norris, 462 Mass. 131, 144 (2012). The risk of judicial interference in counsel's defense strategy was particularly apparent here, where defense counsel explicitly disclaimed a self-defense strategy. “[A] defendant has the right to pursue an all-or-nothing defense,” rather than a self-defense strategy. Waller, supra at 76. The judge committed no error.

2. Medical record redactions. The juvenile also argues that the judge erred by denying defense counsel's request to redact the following notation in Amy's medical records: “[m]ultiple bruises on neck, jaw, arm, leg the distribution and shape/size of which are consistent with heavy fingertip pressure.” As this argument was preserved at trial, we review for prejudicial error. Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018).

General Law c. 233, § 79, permits the admission of medical records relating to “treatment and medical history,” but precludes admission of material that “has reference to the question of liability.” G. L. c. 233, § 79. “We construe G. L. c. 233, § 79, liberally” in favor of admission, even when “incidentally the facts recorded may have some bearing on the question of liability” (quotation and citation omitted). Commonwealth v. Dargon, 457 Mass. 387, 394 (2010). Here, the statement “consistent with heavy fingertip pressure” is a medical observation as to the cause of the injury. Such observations may well be important, as information as to the cause of an injury -- here a neck injury -- could clearly be relevant to medical providers providing treatment to this sixteen year old patient. Under the circumstances, the challenged statement was admissible, as it contained observations that were “part of [Amy's] medical history and [were] relevant to treatment.” Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998). Furthermore, where the statement did not identify the alleged perpetrator or the crime for which the juvenile was charged, it cannot be said to trespass on the question of liability.

Adjudications of delinquency affirmed.


2.   A pseudonym.

3.   The juvenile's trial counsel made this representation in response to the Commonwealth's argument that defense counsel was improperly introducing evidence of Amy's prior violent conduct, without prior notice. The judge overruled the Commonwealth's objection.

4.   The juvenile also argues that the Commonwealth did not meet its burden of proving assault and battery beyond a reasonable doubt, relying in large part on the juvenile's contrary testimony that Amy assaulted him first. However, the testimony of the victim alone can be sufficient to establish a finding beyond a reasonable doubt. Commonwealth v. Santos, 100 Mass. App. Ct. 1, 3 (2021). Here, the victim's testimony, detailed above, is clearly sufficient to support a conviction of assault and battery. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Among other things, Amy testified that the juvenile repeatedly dragged her back into his apartment, and that he closed a window on her hand. Moreover, several witnesses provided corroborating evidence as to her injuries. Nor did the prosecution's case deteriorate due to the juvenile's contradictory testimony. Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381 (2017).

Was this helpful?

Thank you. Your response has been sent.

Copied to clipboard