Commonwealth v. Amanda Swift.

• Court: Massachusetts Appeals Court
• Decided: November 5, 2024
• Docket: 23-P-0352
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-352

COMMONWEALTH

vs.

AMANDA SWIFT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this appeal, the defendant, Amanda Swift, claims that

her conviction for assault and battery should be vacated based

on ineffective assistance of trial counsel, specifically, her

attorney's failure to move for a required finding of not guilty

directly after the Commonwealth declined to make an opening

statement at her bench trial. We affirm.

To prove ineffective assistance of counsel, the defendant

must first show conduct amounting to "serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass.

89, 96 (1974). Second, the deficient conduct must have "likely deprived the defendant of an otherwise available, substantial

ground of defence." Id.

The defendant premises her claim on the proposition that

the prosecution must always deliver an opening statement

providing sufficient evidence to sustain its burden of proof.

We find no legal basis for that proposition. No Massachusetts

appellate decision holds that the Commonwealth must make an

opening statement. While trial "judges have inherent power to

enter a finding of not guilty in a criminal case after the

prosecutor's opening statement," Commonwealth v. Lowder, 432

Mass. 92, 99 (2000), and may do so in very limited

circumstances, see id. at 100-103, nothing in Lowder suggests

that the Commonwealth may not waive an opening statement.

Likewise, the defendant misplaces her reliance on the

preliminary instructions set forth in the District Court's model

jury instructions, which describe for the jury how the trial

will proceed. See Criminal Model Jury Instructions for Use in

the District Court 1.120 (2019). The model instruction, like

Mass. R. Crim. P. 24 (a) (1), 378 Mass. 895 (1979), states the

order in which opening statements will be given; neither the

model instruction nor rule 24 requires an opening statement.

See United States v. Graham, 146 F.3d 6, 10 (1st Cir. 1998)

("the government does not have an obligation to make any opening

statement").

2 As the Commonwealth was not required to give an opening

statement, defense counsel's failure to move for a required

finding of not guilty when the Commonwealth waived its opening

statement was not conduct so deficient that it would fail the

performance prong of the Saferian formulation.

Moreover, even if an ordinary fallible lawyer would have

been expected to move for a required finding of not guilty in

these circumstances, counsel's failure to do so here did not

deprive the defendant of a substantial ground of defense. If

defense counsel had moved for a required finding after the

Commonwealth waived its opening statement, the judge would have

been obligated to allow the prosecutor an opportunity to outline

the evidence she intended to present. A motion for a required

finding of not guilty after a prosecutor's opening statement

"should be denied unless it clearly appears from the opening

statement that the defendant cannot be lawfully convicted and

then only after the prosecutor has been made aware of the

difficulty and fails or is otherwise unable to correct it."

Lowder, 432 Mass. at 100-101, quoting People v. Kurtz, 51 N.Y.2d

380, 385 (1980), cert. denied, 451 U.S. 911 (1981). If a judge

deems an opening statement insufficient, "[t]he prosecutor must

then have full opportunity . . . to correct any ambiguity,

error, or omission in the [opening] statement" (quotation

omitted). Lowder, supra at 102.

3 The defendant makes no argument that the Commonwealth

presented insufficient evidence to support her conviction, nor

does the defendant contend that the prosecutor would have been

unable to marshal sufficient evidence in an opening statement to

survive a motion for a required finding. Thus, the defendant

was not prejudiced by trial counsel's failure to move for a

required finding of not guilty when the prosecutor waived her

opening. See Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527

(1996), cert. denied, 520 U.S. 1245 (1997) ("failing to pursue a

futile tactic does not amount to constitutional

ineffectiveness").

Judgment affirmed.

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

Clerk

Entered: November 5, 2024.

1 The panelists are listed in order of seniority.