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-1009
COMMONWEALTH
vs.
CARMEN ROSADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from an incident in which the defendant,
while a patient at Heywood Hospital, aggressively grabbed the
stethoscope around the victim nurse's neck, resulting in
ligature marks, after she confiscated the defendant's cell
phone. The defendant was charged with assault and battery on a
healthcare provider, G. L. c. 265, § 13I, and, after a bench
trial in the District Court, convicted on that charge. In
addition to her direct appeal of that conviction, the defendant
also filed a motion for a new trial pursuant to Mass. R.
Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing
that she had received ineffective assistance of counsel. The
judge denied that motion without a hearing. In this consolidated appeal of both her conviction and of the denial of
her motion for a new trial, the defendant argues that the motion
judge, who was also the trial judge, erred in denying her motion
for a new trial and that, with respect to her direct appeal of
her conviction, the judge erred by failing to instruct himself
on the theory of defense of property. We affirm, addressing
each argument in turn.
Discussion. 1. Ineffective assistance of counsel. The
defendant first argues that the judge erred in denying her
motion for a new trial because she received ineffective
assistance of counsel. Particularly, she contends that her
counsel was ineffective because he failed to argue that she had
engaged in lawful defense of property when she assaulted the
victim. As part of her motion, the defendant submitted an
affidavit from her trial counsel averring that he "presented an
accident or mistake defense . . . because [he] believed it was
[the defendant's] best defense." As the Supreme Judicial Court
has explained,
"[t]he two-part test a defendant must satisfy to prevail on a claim of ineffective assistance of counsel in Massachusetts is familiar. The defendant must show that counsel's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that his performance 'likely deprived the defendant of an otherwise available, substantial ground of defence.'"
2 Commonwealth v. Marinho, 464 Mass. 115, 123 (2013), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where trial
counsel's purportedly strategic decisions are in question, "the
test is whether the decision was 'manifestly unreasonable when
made.'" Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015),
quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). We
therefore assess "whether counsel's choice was an informed and
reasonable decision; a consideration to be assessed in light of
his over-all representation of the defendant at the trial."
Commonwealth v. Frank, 433 Mass. 185, 192 (2001).
"A person 'may defend or regain his momentarily interrupted
possession [of personal property] by the use of reasonable
force, short of wounding or the employment of a dangerous
weapon.'" Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 666
(2019), quoting Commonwealth v. Donahue, 148 Mass. 529, 531
(1889). The use of force in defense of property is justified
when "(1) the defendant used only nondeadly force, and (2) the
force used was 'appropriate in kind and suitable in degree, to
accomplish the purpose.'" Commonwealth v. Haddock, 46 Mass.
App. Ct. 246, 248-249 (1999), quoting Commonwealth v. Goodwin,
57 Mass. 154, 158 (1849).
"The decision to allow a motion for a new trial lies within
the sound discretion of the judge and will not be reversed
3 unless it is manifestly unjust or unless the trial was infected
with prejudicial constitutional error." Commonwealth v. Vargas,
475 Mass. 338, 354 (2016), quoting Commonwealth v. Gorham, 472
Mass. 112, 117 (2015). "Judges are to apply the rule 30 (b)
standard rigorously and should grant such motion only if the
defendant comes forward with a credible reason that outweighs
the risk of prejudice to the Commonwealth." Kolenovic, 471
Mass. at 672. "Where, as here, the motion judge is also the
trial judge, we give special deference to the judge's findings
of fact and the ultimate decision on the motion" (quotation and
citation omitted). Id. at 672-673.
The judge did not abuse his discretion in denying the
defendant's motion. In reviewing the judge's decision, we
emphasize that trial counsel can only be expected to pursue
defense strategies that are supported by the facts of the
controversy. See id. at 674 (reasonableness of counsel's
actions based on what was known or should have been known at
time of trial trial). Here, the judge was entitled to find the
following as facts. See id. at 665. The defendant checked
herself into Heywood Hospital after experiencing suicidal
ideation. She remained in the hospital for a period of two and
one-half days, during which time she was prohibited from
leaving. Eventually, she began demanding to speak with an
4 attorney or advocate, and, when those requests were not granted,
used her cell phone to record the victim and other patients as
the victim went about her work in the emergency room. The
victim asked the defendant to stop recording and when the victim
remained "disruptive," confiscated the defendant's cell phone by
taking it from her hand.1 The defendant responded by grabbing
the victim by her stethoscope, which was around the victim's
neck, so aggressively that the stethoscope broke and ligature
marks remained on the side of the victim's neck after the
encounter.2 Hospital security staff restrained the defendant
shortly after the physical encounter began, but not before the
defendant had inflicted the injury on the victim.
At trial, the defendant's counsel contended that the
defendant did not intend to assault the victim but accidentally
grabbed the stethoscope while attempting to take her cell phone
back from the victim. This was, as he explained in his
affidavit, a strategic decision based on his belief that a claim
1 The victim testified that hospital policy prohibited the use of a recording device or cell phone, and that she was concerned that the defendant was violating the Health Insurance Portability and Accountability Act rights of other patients, who were present in the department. She further testified that the policy prohibiting recording was posted.
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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-1009
COMMONWEALTH
vs.
CARMEN ROSADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from an incident in which the defendant,
while a patient at Heywood Hospital, aggressively grabbed the
stethoscope around the victim nurse's neck, resulting in
ligature marks, after she confiscated the defendant's cell
phone. The defendant was charged with assault and battery on a
healthcare provider, G. L. c. 265, § 13I, and, after a bench
trial in the District Court, convicted on that charge. In
addition to her direct appeal of that conviction, the defendant
also filed a motion for a new trial pursuant to Mass. R.
Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing
that she had received ineffective assistance of counsel. The
judge denied that motion without a hearing. In this consolidated appeal of both her conviction and of the denial of
her motion for a new trial, the defendant argues that the motion
judge, who was also the trial judge, erred in denying her motion
for a new trial and that, with respect to her direct appeal of
her conviction, the judge erred by failing to instruct himself
on the theory of defense of property. We affirm, addressing
each argument in turn.
Discussion. 1. Ineffective assistance of counsel. The
defendant first argues that the judge erred in denying her
motion for a new trial because she received ineffective
assistance of counsel. Particularly, she contends that her
counsel was ineffective because he failed to argue that she had
engaged in lawful defense of property when she assaulted the
victim. As part of her motion, the defendant submitted an
affidavit from her trial counsel averring that he "presented an
accident or mistake defense . . . because [he] believed it was
[the defendant's] best defense." As the Supreme Judicial Court
has explained,
"[t]he two-part test a defendant must satisfy to prevail on a claim of ineffective assistance of counsel in Massachusetts is familiar. The defendant must show that counsel's performance fell 'measurably below that which might be expected from an ordinary fallible lawyer,' and that his performance 'likely deprived the defendant of an otherwise available, substantial ground of defence.'"
2 Commonwealth v. Marinho, 464 Mass. 115, 123 (2013), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where trial
counsel's purportedly strategic decisions are in question, "the
test is whether the decision was 'manifestly unreasonable when
made.'" Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015),
quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). We
therefore assess "whether counsel's choice was an informed and
reasonable decision; a consideration to be assessed in light of
his over-all representation of the defendant at the trial."
Commonwealth v. Frank, 433 Mass. 185, 192 (2001).
"A person 'may defend or regain his momentarily interrupted
possession [of personal property] by the use of reasonable
force, short of wounding or the employment of a dangerous
weapon.'" Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 666
(2019), quoting Commonwealth v. Donahue, 148 Mass. 529, 531
(1889). The use of force in defense of property is justified
when "(1) the defendant used only nondeadly force, and (2) the
force used was 'appropriate in kind and suitable in degree, to
accomplish the purpose.'" Commonwealth v. Haddock, 46 Mass.
App. Ct. 246, 248-249 (1999), quoting Commonwealth v. Goodwin,
57 Mass. 154, 158 (1849).
"The decision to allow a motion for a new trial lies within
the sound discretion of the judge and will not be reversed
3 unless it is manifestly unjust or unless the trial was infected
with prejudicial constitutional error." Commonwealth v. Vargas,
475 Mass. 338, 354 (2016), quoting Commonwealth v. Gorham, 472
Mass. 112, 117 (2015). "Judges are to apply the rule 30 (b)
standard rigorously and should grant such motion only if the
defendant comes forward with a credible reason that outweighs
the risk of prejudice to the Commonwealth." Kolenovic, 471
Mass. at 672. "Where, as here, the motion judge is also the
trial judge, we give special deference to the judge's findings
of fact and the ultimate decision on the motion" (quotation and
citation omitted). Id. at 672-673.
The judge did not abuse his discretion in denying the
defendant's motion. In reviewing the judge's decision, we
emphasize that trial counsel can only be expected to pursue
defense strategies that are supported by the facts of the
controversy. See id. at 674 (reasonableness of counsel's
actions based on what was known or should have been known at
time of trial trial). Here, the judge was entitled to find the
following as facts. See id. at 665. The defendant checked
herself into Heywood Hospital after experiencing suicidal
ideation. She remained in the hospital for a period of two and
one-half days, during which time she was prohibited from
leaving. Eventually, she began demanding to speak with an
4 attorney or advocate, and, when those requests were not granted,
used her cell phone to record the victim and other patients as
the victim went about her work in the emergency room. The
victim asked the defendant to stop recording and when the victim
remained "disruptive," confiscated the defendant's cell phone by
taking it from her hand.1 The defendant responded by grabbing
the victim by her stethoscope, which was around the victim's
neck, so aggressively that the stethoscope broke and ligature
marks remained on the side of the victim's neck after the
encounter.2 Hospital security staff restrained the defendant
shortly after the physical encounter began, but not before the
defendant had inflicted the injury on the victim.
At trial, the defendant's counsel contended that the
defendant did not intend to assault the victim but accidentally
grabbed the stethoscope while attempting to take her cell phone
back from the victim. This was, as he explained in his
affidavit, a strategic decision based on his belief that a claim
1 The victim testified that hospital policy prohibited the use of a recording device or cell phone, and that she was concerned that the defendant was violating the Health Insurance Portability and Accountability Act rights of other patients, who were present in the department. She further testified that the policy prohibiting recording was posted.
2 The marks that remained on the victim's neck were depicted in a photograph that was entered into evidence by the Commonwealth.
5 of mistake or accident was the defendant's best defense.
Although the defendant represented in her motion for a new trial
that she ultimately disagreed with counsel's strategy -- in her
motion, she contended that trial counsel should have instead
argued that the defendant was engaged in lawful defense of
property when she assaulted the victim -- the judge was within
his discretion in concluding that the strategy, while
unsuccessful,3 was not manifestly unreasonable. See Commonwealth
v. Lally, 473 Mass. 693, 706 (2016), quoting Kolenovic, 471
Mass. at 674-675 (evaluating strategic decision by "search[ing]
for rationality in counsel's strategic decisions . . . and not
[taking into account] whether counsel could have made
alternative choices"). In order to obtain an acquittal by
arguing defense of property, counsel would be required to
convince the fact finder that the defendant used force that was
appropriate in kind and suitable in degree, to accomplish the
purpose of recovering her cell phone. See Haddock, 46 Mass.
App. Ct. at 249. We are unpersuaded by the defendant's claim
3 We are not persuaded by the defendant's argument that the weakness of trial counsel's accident defense supports the conclusion that he was ineffective, as "[i]n cases where tactical or strategic decisions of the defendant's counsel are at issue, we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful." Kolenovic, 471 Mass. at 673, quoting Commonwealth v. Valentin, 470 Mass. 186, 190 (2014).
6 that a fact finder could reasonably be convinced to conclude
that using a stethoscope cord to "strangle" the victim, as she
so testified, so violently that the cord snapped and the victim
was left with lasting ligature marks could be construed as
appropriate or suitable for the purpose of recovering a cell
phone, particularly given that there was no evidence that the
victim's confiscation of the cell phone was anything other than
temporary.4 See Ogarro, 95 Mass. App. Ct. at 666, quoting
Donahue, 148 Mass. at 531 ("A person 'may defend or regain his
momentarily interrupted possession by the use of reasonable
weapon'"). Accordingly, there was no abuse of discretion on the
part of the judge in denying the defendant's motion for a new
trial.5 See Kolenovic, 471 Mass. at 676 ("we see no basis to
fault counsel for elevating his concern for a viable legal
4 The defendant's reliance on Commonwealth v. McArthur, 55 Mass. App. Ct. 596, 599-600 (2002), is misplaced. Although the defendant in McArthur presented sufficient evidence to warrant a defense of property instruction with respect to an unarmed struggle with the victim after she took his money, the court explicitly distinguished that touching from a separate assault in which the defendant -- as in this case -- used a weapon to attack the victim. Id. at 600.
5 Similarly, we are unconvinced that trial counsel rendered ineffective assistance by failing to request that the judge instruct himself on defense of property.
7 defense over a possible alternative approach likely fraught with
difficulty").
2. Jury instruction. The defendant further argues that
the judge erred by not, sua sponte, instructing himself on
defense of property before finding her guilty. In support of
this argument, she refers back to her discussion of the evidence
that she contends was sufficient to support the conclusion that
she engaged in defense of property when she pulled the victim by
the stethoscope around her neck. Specifically, she claims that
her testimony that she was attempting to regain possession of
her cell phone by reaching out for it when she made contact with
the victim. Accordingly, she suggests that the judge was
required to instruct himself on defense of property before
finding her guilty. The claim is meritless.
Because the defendant concedes that she did not request a
defense of property instruction at trial, we review for a
substantial risk of a miscarriage of justice. See Commonwealth
v. Eberle, 81 Mass. App. Ct. 235, 239 (2012). With respect to
judicial self-instruction, "[w]e presume that in jury-waived
trials, judges will 'have correctly instructed [themselves] as
to the manner in which evidence was to be considered in [their]
role as factfinder.'" Commonwealth v. Garvey, 99 Mass. App. Ct.
139, 143 (2021), quoting Commonwealth v. Batista, 53 Mass. App.
8 Ct. 642, 648 (2002). "This presumption, however, will not be
applied in cases 'where the record indicates otherwise.'" Id.,
quoting Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 451
(2005).
We note at the outset of our analysis that, given that the
defendant did not raise this issue at trial, she is unable to
demonstrate that the judge indeed did not instruct himself on
defense of property. See Garvey, 99 Mass. App. Ct. at 143.
Nevertheless, as we have discussed, the evidence adduced at
trial cannot be said to support defense of property,
particularly where the defendant used the victim's stethoscope
to pull her by her neck. See Ogarro, 95 Mass. App. Ct. at 666.
Since the defendant did not present evidence supporting defense
of property, she was not entitled to such an instruction. See
Eberle, 81 Mass. App. Ct. at 239 (instruction required if any
view of evidence would support reasonable doubt as to whether
9 prerequisites of defense were present). Accordingly, we discern
no error.6
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Desmond, Hand & Grant, JJ.7),
Clerk
Entered: October 1, 2024.
6 Even assuming, arguendo, that the defendant was entitled to such an instruction, we would discern no substantial risk of a miscarriage of justice given the strength of the Commonwealth's case against the defendant. See Eberle, 81 Mass. App. Ct. at 240-241 (describing substantial risk of miscarriage of justice).
7 The panelists are listed in order of seniority.