COMMONWEALTH v. Bienvenido JEREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Bienvenido Jerez, was convicted in 2013, after a jury trial in the Superior Court, of one count of stalking in violation of an abuse prevention order, G. L. c. 265, § 43 (b); two counts of violating an abuse prevention order, G. L. c. 209A, § 7; and two counts of intimidation of a witness, G. L. c. 268, § 13B. A panel of this court affirmed the convictions. Commonwealth v. Jerez, 93 Mass. App. Ct. 1109 (2018). The defendant now appeals from the order denying his motion for a new trial. We affirm.
1. Standard of review. “[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ ” Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). “An evidentiary hearing is not required 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).
To prevail on a claim of ineffective assistance of counsel, “the defendant must show  that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and  that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In assessing whether the defendant was prejudiced, we have held that “a defendant is entitled to a new trial ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ ” Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 439 (2016), quoting Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
2. Notice of the abuse prevention order. On March 19, 2012, the Haverhill District Court issued an ex parte abuse prevention order that expired on March 30, 2012. On March 30, the court extended the order for two years and added a condition that the defendant not contact the victim's mother. The return of service shows that the defendant was served at Federal prison on April 5, 2012, and the defendant confirmed in both letter and testimony that he received service.
The defendant asserts that he was served only with the ex parte order (which had already expired) and thus did not know that he was prohibited from contacting the mother. In this regard, the jury were instructed that the Commonwealth had to prove that the defendant “knew the pertinent terms of that order; in other words, what it ordered that he not do.” The inference that the defendant proposes is illogical. Not only would this mean that local police bothered to serve a restraining order in Federal prison that had expired seven days earlier and to file a return of service in the Pennsylvania Court of Common Pleas, but it is undercut by other evidence at trial. The defendant specifically told the victim's mother that the order “should have been filed by you,” which would make little sense if the order did not have a prohibition on contact with the mother. Similarly, the defendant's statement that the victim could not prove he was served with the order before he sent a letter on April 5 would make no sense if the defendant thought the only order he was served with had expired on March 30. Finally, the defendant would have had no reason to move to vacate the order if, as he testified, he had no notice that the order was extended past March 30. The jury were entitled to disbelieve the defendant's trial testimony that he had been served only with the ex parte order. See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 445 (2018), cert. denied, 139 S. Ct. 2010 (2019).
The defendant also argues that defense counsel was ineffective in not investigating this theory. The defendant, however, points to no information that could have been uncovered to support his assertion. The Haverhill District Court docket sheet referenced by the defendant contains no evidence that the wrong abuse prevention order was served. Accordingly, the defendant has not demonstrated that he was deprived of a substantial ground of defense. See Commonwealth v. Holland, 476 Mass. 801, 811 (2017).
3. Duplicative convictions. The trial judge specifically instructed the jury that the first witness intimidation charge was for “conduct ․ to try to get [the victim] to drop pending criminal charges” between January 1, 2009, and August 13, 2013, and that the third witness intimidation charge was solely concerning “the alleged letter from [the defendant] to [the victim's] employer.” The judge further instructed the jury that there were “three separate offenses[,] so the prosecution, for each of these offenses, must have proved beyond a reasonable doubt the specific conduct and all of the necessary elements of the offense.”
It is true that the defendant was entitled to an instruction that the counts had to be based on “separate and distinct acts,” Commonwealth v. Thompson, 89 Mass. App. Ct. 456, 464 (2016), which is slightly more specific than “separate offenses.” Here, however, the defendant sent numerous letters to the victim and her family between January 1, 2009, and August 13, 2013, most of which were far more threatening than the letter to the victim's employer and several of which specifically complained about the criminal charges against the defendant. Under these circumstances, it is far-fetched to think that the jury based the first witness intimidation conviction only on the letter to the victim's employer. We do not see “any significant possibility that the jury may have based [both] convictions ․ on the same act.” Commonwealth v. Kelly, 470 Mass. 682, 701 (2015). For the same reason, counsel did not deprive the defendant of a substantial ground of defense by failing to request a separate and distinct acts instruction. See Commonwealth v. Gonsalves, 99 Mass. App. Ct. 638, 644 (2021); Commonwealth v. Dobbins, 96 Mass. App. Ct. 593, 599 (2019).
4. Redaction of exhibit 32. Exhibit 32 consists of excerpts from 28 C.F.R. § 540.14, regarding Federal prison correspondence surveillance. For reasons that are not evident, the parties did not include in this exhibit 28 C.F.R. § 540.14(c)(2), which states, “Except for ‘special mail,’ outgoing mail from a sentenced inmate in a medium or high security level institution, or an administrative institution may not be sealed by the inmate and may be read and inspected by staff.” Although this appears to be error, it in no way deprived the defendant of a substantial ground of defense. As the panel stated in the direct appeal, “[t]he Commonwealth's case, including the identification of the defendant as the source of the mailings, was overwhelming.”2 [Op. at 14] In light of this overwhelming evidence, the fact that the federal prison authorities could have -- but did not have to -- read and inspect the defendant's letters would not have “made a difference in the jury's verdicts.” Commonwealth v. Parker, 481 Mass. 69, 76 (2018).
5. Handwriting evidence. “A witness who is familiar with a person's handwriting may give an opinion as to whether the specimen in question was written by that person.” Commonwealth v. O'Connell, 438 Mass. 658, 667 (2003), quoting Commonwealth v. Ryan, 355 Mass. 768, 770-771 (1969). Here, the victim had been the defendant's wife for a prolonged period of time and testified that she was familiar with his handwriting, having seen it during the course of the marriage, including on closing documents.3 The judge was well within his discretion in admitting the testimony. See O'Connell, supra. Defense counsel objected repeatedly and there is no reason to believe that the judge's ruling would have been different had counsel requested a voir dire or argued that the victim must have forgotten the defendant's handwriting in the time since the relationship ended. The judge was aware that the relationship had ended in 2005. He ordered a voir dire of the victim's mother sua sponte when unsatisfied with the foundation for handwriting identification and surely would have done the same with the victim if similarly unsatisfied. Accordingly, “the defendant failed to demonstrate that ‘better work might have accomplished something material for the defense.’ ” Commonwealth v. Sin, 100 Mass. App. Ct. 172, 183 (2021), quoting Commonwealth v. Despasquale, 86 Mass. App. Ct. 914, 917 (2014).4
As the defendant requests, we have also considered all of his claims in confluence. See Commonwealth v. Epps, 474 Mass. 743, 767 (2016). The evidence at trial was overwhelming that the defendant engaged in a campaign of letter writing to intimidate and harass the victim and to coerce her into dropping criminal charges against him. None of the issues he brings raises any doubt of his guilt.
Order denying motion for new trial affirmed.
2. As the panel stated, “The victim recognized the handwriting and signatures. The mailings also bore Pennsylvania postmarks, were consistent with other mailings the defendant admitted sending, and contained an error that the victim likely would not have made if she had fabricated them (i.e., the wrong zip code for her address).” [Op. at 14 n.12]
3. The defendant also argues that counsel failed to elicit the fact that the victim's first son was not the defendant's child, but was born after the victim's relationship with the defendant began. In fact, counsel elicited that very information, over the Commonwealth's objection.
4. The defendant's claim that counsel should have called a handwriting expert fails because the defendant has failed to show that a handwriting expert would have provided helpful testimony. “A claim of ineffective assistance of counsel for failure to call an expert witness is generally doomed where ‘[t]he defendant's claim is not supported by any affidavits’ to disclose the content of the omitted expert testimony.” Commonwealth v. Alicea, 464 Mass. 837, 850-851 (2013), quoting Commonwealth v. Morales, 461 Mass. 765, 785 (2012).
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