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Appeals Court of Massachusetts.



Decided: November 16, 2021

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


The defendant, Delton L. Stanley, Jr., was charged with two counts of assault by means of a dangerous weapon, one against Justin Washington and the other against Rebecca Statler. The defendant waived his right to a trial by jury, and a bench trial proceeded in the District Court. The defendant filed a motion for a required finding of not guilty that the judge allowed with respect to the charge involving Statler. The judge subsequently found the defendant guilty of the charge involving Washington. The defendant appealed, and while his appeal was pending, he filed a motion for a new trial asserting that his trial counsel provided ineffective assistance. The motion was denied by the trial judge in a margin endorsement without a hearing. Before us is a consolidated appeal from the defendant's conviction and the order denying his new trial motion.2 For the reasons that follow, we affirm the judgment of conviction and the order denying the motion for a new trial.

Background. The charges stem from a confrontation that occurred in the defendant's home on October 31, 2017. That afternoon, the defendant's father, Delton Stanley, Sr. (Stanley, Sr.), asked Washington, with whom he was friendly, for help installing a lock on his bedroom door. Washington agreed to help, and the two walked a short distance to the house where the defendant lived with his mother and younger sister. Washington's fiancé, Statler, joined them, but did not enter the house. At the time, both Washington and Statler believed that Stanley, Sr., also lived at the house.

Stanley, Sr., and Washington entered the house through the front door, which was unlocked, and walked toward the first bedroom on the left side of the hallway. The defendant was in a bedroom at the end of the hallway with two friends when he saw his father and Washington inside the house. On seeing Washington, the defendant stated, “I don't know what the fuck you ․ got going on in here, but you got four seconds to get out of here before I blow a hole through your head.” Washington responded that he was helping the defendant's father put a lock on the door to which the defendant replied, “Now you got two seconds to get the fuck out of here before I blow your fucking knees off.” The defendant then pulled up his shirt, exposing the grip of a “black pistol.” He pulled the gun from his waistband and pointed it in Washington's direction. Washington quickly left with his eyes closed. He testified that he was scared the defendant would shoot him and that he ran from the house in a “zigzag fashion” to avoid being shot.

Later that afternoon, Statler reported the incident to Detective David Foley of the Barnstable police department during a conversation on an unrelated matter. The following day, Detective Foley and another officer spoke with Washington. Based on the information provided by Washington and Statler, the police obtained a search warrant for the defendant's home. During the execution of the warrant, the police found a black BB gun in one of the bedrooms that matched the description provided by Washington.3

The defendant testified on his own behalf and denied that he assaulted Washington. He stated that his father did not live at the house, and when he saw his father and Washington, he told them to leave. On cross-examination, the defendant acknowledged that his father visited occasionally and that he owned a black BB gun that looked like a real gun. The defendant's mother also testified. She claimed that she arrived home when Stanley, Sr., and Washington were leaving and that she spoke with Stanley, Sr., before he and Washington “just walked away.” She further stated that she knew Statler, and that Statler was not at the house.

Represented by new counsel, the defendant filed a motion for a new trial claiming that he was deprived of effective assistance of counsel. Specifically, he argued that trial counsel's cross-examination of Washington and Statler was insufficient because he failed to impeach them with their prior inconsistent statements to the police and that trial counsel should have impeached Washington with a prior conviction of intimidation of a witness.

The motion was supported by an affidavit from trial counsel in which he averred, as relevant here, that his failure to use the prior inconsistent statements during cross-examination was an “oversight.” Trial counsel also acknowledged that he should have sought to introduce Washington's prior conviction but did not do so because he “may have been under the misimpression that ․ these felony convictions were too old under the statute to be admissible.”

As previously noted, the trial judge denied the motion without explanation in a margin endorsement and without holding an evidentiary hearing as the defendant had requested.

Discussion. We review the denial of a motion for a new trial for an abuse of discretion. See Commonwealth v. Sperrazza, 399 Mass. 1001, 1002 (1987). Our review is particularly deferential when the motion judge was also the trial judge. See Commonwealth v. Bowie, 25 Mass. App. Ct. 70, 84 (1987) (judge may make use of “knowledge of what occurred at trial”).

In order to prevail on a motion for a new trial based on a claim of ineffective assistance of counsel, the defendant must demonstrate that (1) trial counsel's conduct fell “measurably below that which might be expected from an ordinary fallible lawyer” (performance prong) and (2) he was prejudiced by trial counsel's conduct in that it “likely deprived the defendant of an otherwise available, substantial ground of defence” (prejudice prong).” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We conclude that the defendant has met his burden on the first prong of the Saferian test in some respects, but not on the second prong. Accordingly, the new trial motion was properly denied.

1. Cross-examination of Washington and Statler. At trial, Washington and Statler testified that Statler remained outside the house and did not witness the assault against Washington. However, according to the materials submitted by the defendant in support of his new trial motion,4 it appears that Statler told the police that she entered the house and witnessed the assault, and Washington may have said the same. There is no question that trial counsel had the duty to elicit inconsistencies between the witnesses’ testimony and their prior statements. Trial counsel's conduct in this regard fell measurably below that of an ordinary, fallible lawyer. The defendant has nevertheless failed to demonstrate that better work would have made a difference to the outcome. The “ ‘failure to impeach a witness does not [generally] prejudice the defendant [to such a degree as to] constitute ineffective assistance’ of counsel” (citation omitted). Commonwealth v. Stephens, 44 Mass. App. Ct. 940, 941, (1998). While the case against the defendant was not overwhelming, the judge explicitly credited Washington's testimony and determined that neither the defendant nor his mother were credible witnesses. Given these circumstances, even if Statler, and perhaps Washington, had been impeached with their inconsistent statements about Statler's presence inside the house, we are satisfied that such impeachment would not have resulted in a different finding.5

We reach the same conclusion with respect to trial counsel's failure to impeach Washington with his prior conviction. Washington was convicted of witness intimidation on August 3, 2009. Although the defendant is correct that evidence of the conviction was admissible pursuant to G. L. c. 233, § 21, as the Commonwealth notes in its brief, the conviction was almost ten years old and, therefore, just barely met the statutory requirements for admissibility. See id. Consequently, we are satisfied that the judge, as trier of fact, would not have been swayed in any material way had trial counsel introduced the prior conviction.

2. Failure to object to leading questions and allegedly inadequate closing argument. It is not clear from the record whether the defendant raised in his motion for a new trial his remaining two arguments in support of his claim that he received ineffective assistance of counsel, namely that trial counsel should have objected to the prosecutor's use of leading questions and that he failed to give an effective closing argument. In any event, we have reviewed the record and conclude that neither argument has merit. The prosecutor's direct examination was not overly leading, and trial counsel's closing argument was more compelling than the defendant asserts.

3. Denial of the defendant's request for an evidentiary hearing and failure to make findings. We further conclude that, in the circumstances presented, the judge, who heard and evaluated the testimony, did not abuse his discretion in deciding the new trial motion without conducting an evidentiary hearing. “When the motion judge is also the trial judge, as in this case, she may use her ‘knowledge and evaluation of the evidence at trial in determining whether to decide the motion for a new trial without an evidentiary hearing.’ ” Commonwealth v. Morgan, 453 Mass. 54, 64 (2009), quoting Commonwealth v. Wallis, 440 Mass. 589, 596 (2003).

We are similarly not persuaded that the absence of findings is “fatal,” as the defendant asserts. The judge's conclusion is clearly evident from the record, and while findings are generally helpful to a reviewing court, our review was not hindered in this case.

Judgment affirmed.

Order denying motion for a new trial affirmed.


2.   The defendant's claims on appeal only concern the denial of his motion for a new trial.

3.   The defendant testified that the black BB gun was likely found in his bedroom.

4.   Those materials are a police report dated November 7, 2017, and an affidavit in support of search warrant application.

5.   In addition, the defendant argues that trial counsel should have impeached Washington and Statler with inconsistent statements regarding the precise manner in which the defendant revealed the gun, but we are again satisfied that such impeachment would not have resulted in a different finding.

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