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
24-P-504
COMMONWEALTH
vs.
JOSEPH GREEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial, a District Court judge convicted the
defendant of vandalizing property in violation of G. L. c. 266,
§ 126A. In a well-reasoned decision, the same judge denied the
defendant's motion for a new trial, in which the defendant
claimed ineffective assistance of counsel. In this appeal, the
defendant contends that the motion judge erred in denying his
motion for a new trial because his trial counsel made a
manifestly unreasonable tactical decision to introduce a video
recording at trial.1 We affirm.
1A judge allowed the defendant to file a late notice of appeal from his conviction, but the defendant makes no separate argument as to the underlying conviction on appeal. Background. The Commonwealth presented the following
evidence at trial. On October 4, 2021, at about 5 P.M., the
victims left their home in Billerica to go out to dinner for
their wedding anniversary. When they returned home around
9 P.M., the victims saw paint on their driveway and on their
son's car, which was parked in the driveway, along with a can of
paint. Surveillance camera video footage taken from the front
of the victims' home (Jackson video) showed a white sports
utility vehicle (SUV) driving past the victims' house as a paint
can was thrown on the driveway. The SUV appeared to approach
the home slowly, and, after the paint can was thrown, accelerate
away. The video footage was not time stamped and the SUV's
license plate was not discernible from the video footage.
Surveillance camera video footage (Ferrari video) from a
neighbor's house four doors away from the victims' depicted a
white SUV driving past the neighbor's house at 8:03 P.M. and
8:17 P.M.
Shortly after speaking with the victims that night,
Billerica police reviewed screenshots from the Ferrari video
that captured the license plate of the white SUV. The SUV was
registered to the defendant, who had lived next door to the
victims until 2013, but at the time of the incident lived about
two miles away. Officers went to the defendant's home, where
they saw the same white SUV parked in the driveway. The
2 defendant admitted to police that he drove the SUV in the
victims' neighborhood earlier that evening. He appeared nervous
and offered conflicting explanations for his presence in the
victims' neighborhood.
The defendant introduced surveillance footage (Mackenzie
video) from the house across the street from the victims' home.
The video footage was not time stamped, and no paint can was
visible. The video recording was about twenty minutes long and
depicted four white or light-colored vehicles driving past the
victims' home. As the fourth vehicle drove past the home, a
faint noise can be heard on the video recording.
Discussion. We review a judge's decision on a motion for a
new trial for error of law or abuse of discretion. See
Commonwealth v. Tavares, 491 Mass. 362, 365 (2023). In doing
so, "[w]e afford particular deference to a decision on a motion
for a new trial based on claims of ineffective assistance where
the motion judge was, as here, the trial judge." Commonwealth
v. Martin, 467 Mass. 291, 316 (2014). To prevail on his claim
of ineffectiveness of counsel, the defendant must show:
(1) that counsel's conduct fell "measurably below that which
might be expected from an ordinary fallible lawyer"; and
(2) that this conduct "likely deprived the defendant of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A strategic
3 or tactical decision by counsel will not be considered
ineffective assistance unless the decision was manifestly
unreasonable when made" (quotation and citation omitted).
Commonwealth v. Watson, 455 Mass. 246, 256 (2009). The
manifestly unreasonable test is "a search for rationality in
counsel's strategic decisions." Commonwealth v. Kolenovic, 471
Mass. 664, 674 (2015).
Here, the defendant asserts that trial counsel's
introduction of the Mackenzie video, which lacked time stamps,
when compared with the time stamped Ferrari video, permitted the
prosecutor to argue that the fourteen-minute timespan between
vehicles on the Mackenzie video corresponded to the defendant's
SUV passing at 8:03 P.M and 8:17 P.M. on the Ferrari video, and
a "metallic thud" when the fourth vehicle passed by corroborated
that the defendant threw a paint can. Thus, he argues, trial
counsel's decision to offer the Mackenzie video was manifestly
unreasonable.
Although trial counsel averred in support of the
defendant's motion for a new trial that he would not have
introduced the Mackenzie video if he had heard the "metallic
thud" before trial, his decision to offer the evidence was a
rational tactical decision at the time. See Kolenovic, 471
Mass. at 674. The Mackenzie video established that the Jackson
video was captured during the time period that several white or
4 light-colored vehicles drove past the victims' home. The
Mackenzie video availed trial counsel of the reasonable argument
that, because the Jackson video did not identify the white SUV's
license plate and did not have time stamps, the paint can could
have been thrown from any of the white vehicles that passed the
victims' home that night. In closing, trial counsel extensively
argued this point. Additionally, although the defendant argues
on appeal that the purported "thud" was crucial to the
Commonwealth's case, its significance is ambiguous. Many sounds
were audible on the Mackenzie video, and the sound of the "thud"
was not the same as the sound of the paint can hitting the
driveway on the Jackson video. That trial counsel did not hear
the faint noise before introducing the Mackenzie video does not
evince his ineffectiveness. Rather, any ordinary fallible
lawyer might not have heard the noise or assigned it particular
significance. We therefore agree with the motion judge that
trial counsel's decision to introduce the Mackenzie video was
not manifestly unreasonable. See Kolenovic, supra at 673 ("we
conduct our review with some deference to avoid characterizing
as unreasonable a defense that was merely unsuccessful"
[citation omitted]).
We also disagree with the defendant's further contention
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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
24-P-504
COMMONWEALTH
vs.
JOSEPH GREEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial, a District Court judge convicted the
defendant of vandalizing property in violation of G. L. c. 266,
§ 126A. In a well-reasoned decision, the same judge denied the
defendant's motion for a new trial, in which the defendant
claimed ineffective assistance of counsel. In this appeal, the
defendant contends that the motion judge erred in denying his
motion for a new trial because his trial counsel made a
manifestly unreasonable tactical decision to introduce a video
recording at trial.1 We affirm.
1A judge allowed the defendant to file a late notice of appeal from his conviction, but the defendant makes no separate argument as to the underlying conviction on appeal. Background. The Commonwealth presented the following
evidence at trial. On October 4, 2021, at about 5 P.M., the
victims left their home in Billerica to go out to dinner for
their wedding anniversary. When they returned home around
9 P.M., the victims saw paint on their driveway and on their
son's car, which was parked in the driveway, along with a can of
paint. Surveillance camera video footage taken from the front
of the victims' home (Jackson video) showed a white sports
utility vehicle (SUV) driving past the victims' house as a paint
can was thrown on the driveway. The SUV appeared to approach
the home slowly, and, after the paint can was thrown, accelerate
away. The video footage was not time stamped and the SUV's
license plate was not discernible from the video footage.
Surveillance camera video footage (Ferrari video) from a
neighbor's house four doors away from the victims' depicted a
white SUV driving past the neighbor's house at 8:03 P.M. and
8:17 P.M.
Shortly after speaking with the victims that night,
Billerica police reviewed screenshots from the Ferrari video
that captured the license plate of the white SUV. The SUV was
registered to the defendant, who had lived next door to the
victims until 2013, but at the time of the incident lived about
two miles away. Officers went to the defendant's home, where
they saw the same white SUV parked in the driveway. The
2 defendant admitted to police that he drove the SUV in the
victims' neighborhood earlier that evening. He appeared nervous
and offered conflicting explanations for his presence in the
victims' neighborhood.
The defendant introduced surveillance footage (Mackenzie
video) from the house across the street from the victims' home.
The video footage was not time stamped, and no paint can was
visible. The video recording was about twenty minutes long and
depicted four white or light-colored vehicles driving past the
victims' home. As the fourth vehicle drove past the home, a
faint noise can be heard on the video recording.
Discussion. We review a judge's decision on a motion for a
new trial for error of law or abuse of discretion. See
Commonwealth v. Tavares, 491 Mass. 362, 365 (2023). In doing
so, "[w]e afford particular deference to a decision on a motion
for a new trial based on claims of ineffective assistance where
the motion judge was, as here, the trial judge." Commonwealth
v. Martin, 467 Mass. 291, 316 (2014). To prevail on his claim
of ineffectiveness of counsel, the defendant must show:
(1) that counsel's conduct fell "measurably below that which
might be expected from an ordinary fallible lawyer"; and
(2) that this conduct "likely deprived the defendant of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A strategic
3 or tactical decision by counsel will not be considered
ineffective assistance unless the decision was manifestly
unreasonable when made" (quotation and citation omitted).
Commonwealth v. Watson, 455 Mass. 246, 256 (2009). The
manifestly unreasonable test is "a search for rationality in
counsel's strategic decisions." Commonwealth v. Kolenovic, 471
Mass. 664, 674 (2015).
Here, the defendant asserts that trial counsel's
introduction of the Mackenzie video, which lacked time stamps,
when compared with the time stamped Ferrari video, permitted the
prosecutor to argue that the fourteen-minute timespan between
vehicles on the Mackenzie video corresponded to the defendant's
SUV passing at 8:03 P.M and 8:17 P.M. on the Ferrari video, and
a "metallic thud" when the fourth vehicle passed by corroborated
that the defendant threw a paint can. Thus, he argues, trial
counsel's decision to offer the Mackenzie video was manifestly
unreasonable.
Although trial counsel averred in support of the
defendant's motion for a new trial that he would not have
introduced the Mackenzie video if he had heard the "metallic
thud" before trial, his decision to offer the evidence was a
rational tactical decision at the time. See Kolenovic, 471
Mass. at 674. The Mackenzie video established that the Jackson
video was captured during the time period that several white or
4 light-colored vehicles drove past the victims' home. The
Mackenzie video availed trial counsel of the reasonable argument
that, because the Jackson video did not identify the white SUV's
license plate and did not have time stamps, the paint can could
have been thrown from any of the white vehicles that passed the
victims' home that night. In closing, trial counsel extensively
argued this point. Additionally, although the defendant argues
on appeal that the purported "thud" was crucial to the
Commonwealth's case, its significance is ambiguous. Many sounds
were audible on the Mackenzie video, and the sound of the "thud"
was not the same as the sound of the paint can hitting the
driveway on the Jackson video. That trial counsel did not hear
the faint noise before introducing the Mackenzie video does not
evince his ineffectiveness. Rather, any ordinary fallible
lawyer might not have heard the noise or assigned it particular
significance. We therefore agree with the motion judge that
trial counsel's decision to introduce the Mackenzie video was
not manifestly unreasonable. See Kolenovic, supra at 673 ("we
conduct our review with some deference to avoid characterizing
as unreasonable a defense that was merely unsuccessful"
[citation omitted]).
We also disagree with the defendant's further contention
that he was prejudiced by trial counsel's ineffectiveness. He
asserts that without the Mackenzie video, the evidence would
5 have been insufficient for any rational trier of fact to convict
him.2 However, there was evidence that the defendant knew the
victims, the defendant twice drove his white SUV past the
victims' home, the paint was thrown from a white SUV, and the
defendant was evasive when asked why he had driven past the
home. The Mackenzie video did not add appreciably to the
Commonwealth's case.
We therefore conclude that the judge did not err or abuse
his discretion by denying the defendant's motion for a new
trial. See Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722
The defendant also argues that the prosecution could not 2
have authenticated the Mackenzie video because no available eyewitness could have testified that it was a fair and accurate depiction of the scene. To the contrary, the video footage contained corroborating details, such as the appearance of two white SUVs passing at the same interval as depicted on the Ferrari video, and one of the victims testified that the video footage depicted her home as seen from across the street. See Commonwealth v. Davis, 487 Mass. 448, 466 (2021) (evidence may be authenticated by circumstantial evidence alone, including its appearance, content, or other distinctive characteristics).
6 (2012) ("a defendant must prove both deficient performance and
prejudice").
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Singh, Grant & Brennan, JJ.3),
Clerk
Entered: April 11, 2025.
3 The panelists are listed in order of seniority.