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-1241
COMMONWEALTH
vs.
JOHN C. RAMIREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the
defendant was found guilty of assault and battery on a family or
household member in violation of G. L. c. 265, § 13M (a). The
sole issue raised on appeal is whether trial counsel rendered
ineffective assistance in posing a question to the victim that
elicited testimony establishing the location of the offense.
The defendant argues that without this testimony, the
Commonwealth could not prove that the court had territorial
jurisdiction and, consequently, he was deprived of a substantial
ground of defense. We affirm.
Background. The Commonwealth presented its case through
two witnesses, Sergeant William Mears and the victim. On the basis of their testimony, the judge could have found the
following facts. On May 24, 2021, in the early evening, the
victim went to the Haverhill police station with her mother and
a friend to report that she had been beaten by her boyfriend,
John Ramirez. Sergeant Mears, a Haverhill police officer, was
working a 4:30 P.M. to 12:30 A.M. shift and spoke with the
victim at around six or seven o'clock. He described the victim
as "visibly shaken" and observed bruises on her cheeks and arms.1
The victim told Sergeant Mears that she lived on Presidential
Drive. The incident occurred in her apartment where she and the
defendant lived with the victim's three children. At some point
thereafter, Sergeant Mears dispatched officers to an address the
victim provided to look for the defendant. There was no
testimony specifying the location of that address and, as it
turned out, the defendant was not found there.
At the time of trial, the victim was no longer in a
relationship with the defendant. She testified that she had
been dating the defendant for about four to five years when, on
Sunday, May 23, (the day before she went to the police station),
she and the defendant had an argument over money. The argument
escalated and the defendant pushed the victim out of her chair.
1 The victim's injuries were photographed by a different officer and the photographs were introduced at trial.
2 The victim fell to the floor after which the defendant "stomped"
on her and beat her with both open and closed fists. The victim
managed to escape to the bathroom where she waited until things
calmed down. When she emerged, the defendant told her that he
loved her and that "it wouldn't happen again." Then, the two
went to take a walk at "the stadium."
On cross-examination, the victim clarified that the
defendant drove to the stadium and that her daughter accompanied
them. Then, in response to the following question posed by
counsel: "[d]o you know the name of the stadium?" the victim
stated: "[t]he stadium. That's what it's called, in
Haverhill." The victim later described the stadium as "a big
park" and again stated it was in Haverhill.
Discussion. The defendant argues for the first time on
appeal that the only evidence that established the location of
the offense was solicited by defense counsel when he asked the
victim for the name of the stadium to which she replied
"Haverhill." Although he acknowledges that location is not an
element of the offense, see Commonwealth v. Gray, 85 Mass. App.
Ct. 85, 87 (2014), the defendant asserts that without the
victim's response, the Commonwealth failed to prove that the
criminal act occurred in Massachusetts and, as a result, did not
show that the court had jurisdiction over him. See Commonwealth
3 v. Combs, 480 Mass. 55, 60 (2018), quoting Commonwealth v.
Fleming, 360 Mass. 404, 406 (1971) ("[i]t is elementary that it
must be shown that jurisdiction lodged in the courts of
Massachusetts before the defendant can be found guilty of the
offense charge"). According to the defendant, counsel provided
ineffective assistance of counsel because, but for the testimony
at issue, he could have filed a successful motion for a required
finding of not guilty on the ground that the court lacked
territorial jurisdiction.
As an initial matter, because the defendant did not raise
his claim of ineffective assistance in a motion for new trial,
we must first decide whether the factual basis of the claim
appears indisputably on the record. See Commonwealth v. Keon
K., 70 Mass. App. Ct. 568, 573-574 (2007) ("[o]ur courts
strongly disfavor raising claims of ineffective assistance on
direct appeal. A claim of ineffective assistance of counsel
should only be brought on direct appeal when . . . the issues do
not implicate any factual questions more appropriately resolved
by a trial judge" [quotation and citation omitted]). The claim
raised here is sufficiently developed on the record and we
therefore conclude that it is appropriate for us to resolve in
the first instance the question of whether the defendant
received ineffective assistance.
4 We now turn to the merits of the defendant's argument. In
order to prevail, the defendant must meet his burden under the
familiar two-pronged test set forth in Commonwealth v. Saferian,
366 Mass. 89, 96 (1974). He must show that (1) counsel's
conduct fell "measurably below that which might be expected from
an ordinary fallible lawyer" and (2) the conduct "likely
deprived the defendant of an otherwise available, substantial
ground of defen[s]e." Id. The defendant has not met his burden
on either prong.
First, we recognize that in some circumstances, our case
law has treated territorial jurisdiction as an element of the
offense. See Combs, 480 Mass. at 56; Fleming, 360 Mass. at 406.
In those cases, however, the question of territorial
jurisdiction was a triable issue or had been put into issue by
the defendant. Where, as here, it was not reasonable to assume
the offense was committed outside the boundaries of the
Commonwealth, an "ordinary fallible lawyer" would not have been
concerned about soliciting testimony regarding the location of
the offense.2 Indeed, the criminal complaint, of which the
defendant had a copy, specifies the location of the offense as
2 Additionally, as the Commonwealth notes in its brief, the challenged testimony merely revealed where the victim went with the defendant after the incident, rather than the location of the incident itself.
5 "Haverhill." In addition, the crime was investigated by the
Haverhill police department which has no jurisdiction beyond the
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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-1241
COMMONWEALTH
vs.
JOHN C. RAMIREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the
defendant was found guilty of assault and battery on a family or
household member in violation of G. L. c. 265, § 13M (a). The
sole issue raised on appeal is whether trial counsel rendered
ineffective assistance in posing a question to the victim that
elicited testimony establishing the location of the offense.
The defendant argues that without this testimony, the
Commonwealth could not prove that the court had territorial
jurisdiction and, consequently, he was deprived of a substantial
ground of defense. We affirm.
Background. The Commonwealth presented its case through
two witnesses, Sergeant William Mears and the victim. On the basis of their testimony, the judge could have found the
following facts. On May 24, 2021, in the early evening, the
victim went to the Haverhill police station with her mother and
a friend to report that she had been beaten by her boyfriend,
John Ramirez. Sergeant Mears, a Haverhill police officer, was
working a 4:30 P.M. to 12:30 A.M. shift and spoke with the
victim at around six or seven o'clock. He described the victim
as "visibly shaken" and observed bruises on her cheeks and arms.1
The victim told Sergeant Mears that she lived on Presidential
Drive. The incident occurred in her apartment where she and the
defendant lived with the victim's three children. At some point
thereafter, Sergeant Mears dispatched officers to an address the
victim provided to look for the defendant. There was no
testimony specifying the location of that address and, as it
turned out, the defendant was not found there.
At the time of trial, the victim was no longer in a
relationship with the defendant. She testified that she had
been dating the defendant for about four to five years when, on
Sunday, May 23, (the day before she went to the police station),
she and the defendant had an argument over money. The argument
escalated and the defendant pushed the victim out of her chair.
1 The victim's injuries were photographed by a different officer and the photographs were introduced at trial.
2 The victim fell to the floor after which the defendant "stomped"
on her and beat her with both open and closed fists. The victim
managed to escape to the bathroom where she waited until things
calmed down. When she emerged, the defendant told her that he
loved her and that "it wouldn't happen again." Then, the two
went to take a walk at "the stadium."
On cross-examination, the victim clarified that the
defendant drove to the stadium and that her daughter accompanied
them. Then, in response to the following question posed by
counsel: "[d]o you know the name of the stadium?" the victim
stated: "[t]he stadium. That's what it's called, in
Haverhill." The victim later described the stadium as "a big
park" and again stated it was in Haverhill.
Discussion. The defendant argues for the first time on
appeal that the only evidence that established the location of
the offense was solicited by defense counsel when he asked the
victim for the name of the stadium to which she replied
"Haverhill." Although he acknowledges that location is not an
element of the offense, see Commonwealth v. Gray, 85 Mass. App.
Ct. 85, 87 (2014), the defendant asserts that without the
victim's response, the Commonwealth failed to prove that the
criminal act occurred in Massachusetts and, as a result, did not
show that the court had jurisdiction over him. See Commonwealth
3 v. Combs, 480 Mass. 55, 60 (2018), quoting Commonwealth v.
Fleming, 360 Mass. 404, 406 (1971) ("[i]t is elementary that it
must be shown that jurisdiction lodged in the courts of
Massachusetts before the defendant can be found guilty of the
offense charge"). According to the defendant, counsel provided
ineffective assistance of counsel because, but for the testimony
at issue, he could have filed a successful motion for a required
finding of not guilty on the ground that the court lacked
territorial jurisdiction.
As an initial matter, because the defendant did not raise
his claim of ineffective assistance in a motion for new trial,
we must first decide whether the factual basis of the claim
appears indisputably on the record. See Commonwealth v. Keon
K., 70 Mass. App. Ct. 568, 573-574 (2007) ("[o]ur courts
strongly disfavor raising claims of ineffective assistance on
direct appeal. A claim of ineffective assistance of counsel
should only be brought on direct appeal when . . . the issues do
not implicate any factual questions more appropriately resolved
by a trial judge" [quotation and citation omitted]). The claim
raised here is sufficiently developed on the record and we
therefore conclude that it is appropriate for us to resolve in
the first instance the question of whether the defendant
received ineffective assistance.
4 We now turn to the merits of the defendant's argument. In
order to prevail, the defendant must meet his burden under the
familiar two-pronged test set forth in Commonwealth v. Saferian,
366 Mass. 89, 96 (1974). He must show that (1) counsel's
conduct fell "measurably below that which might be expected from
an ordinary fallible lawyer" and (2) the conduct "likely
deprived the defendant of an otherwise available, substantial
ground of defen[s]e." Id. The defendant has not met his burden
on either prong.
First, we recognize that in some circumstances, our case
law has treated territorial jurisdiction as an element of the
offense. See Combs, 480 Mass. at 56; Fleming, 360 Mass. at 406.
In those cases, however, the question of territorial
jurisdiction was a triable issue or had been put into issue by
the defendant. Where, as here, it was not reasonable to assume
the offense was committed outside the boundaries of the
Commonwealth, an "ordinary fallible lawyer" would not have been
concerned about soliciting testimony regarding the location of
the offense.2 Indeed, the criminal complaint, of which the
defendant had a copy, specifies the location of the offense as
2 Additionally, as the Commonwealth notes in its brief, the challenged testimony merely revealed where the victim went with the defendant after the incident, rather than the location of the incident itself.
5 "Haverhill." In addition, the crime was investigated by the
Haverhill police department which has no jurisdiction beyond the
city's boundaries, let alone the boundaries of the Commonwealth.
Nor are we persuaded, as the defendant suggests, that evidence
the victim worked in New Hampshire or that the victim's mother
lived in Rhode Island was sufficient to place doubt on the
location of the offense. In short, there simply was no basis on
which an "ordinary fallible" attorney would have questioned the
court's jurisdiction.
In any event, even if we were to assume, which we do not,
that trial counsel's conduct fell below that of an "ordinary
fallible lawyer," the defendant was not deprived of an otherwise
available substantial defense. Contrary to the defendant's
assertion, there was competent circumstantial evidence apart
from the testimony at issue from which the judge could
reasonably infer beyond a reasonable doubt that the offense was
committed in Haverhill. As previously noted, the victim
reported the crime to the Haverhill police and the incident
occurred in the victim's apartment on Presidential Drive.
Again, if that location was not within the boundaries of the
Commonwealth (much less within the city limits of Haverhill), it
is reasonable to assume that Sergeant Mears would not have
initiated an investigation. In sum, even if defense counsel had
6 not solicited the testimony at issue, the evidence of
territorial jurisdiction -- apart from the victim's testimony --
was sufficient to withstand a motion for a required finding of
not guilty.
Judgment affirmed.
By the Court (Vuono, Grant & Walsh, JJ.3),
Clerk
Entered: July 14, 2025.
3 The panelists are listed in order of seniority.