Commonwealth v. Manuel D. Alvarez.

• Court: Massachusetts Appeals Court
• Decided: March 1, 2023
• Docket: 22-P-0205
• Status: Unpublished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

22-P-205

COMMONWEALTH

vs.

MANUEL D. ALVAREZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from his conviction in a jury-waived trial on a

charge of assault and battery, see G. L. c. 265, § 13A (a), the

defendant contends that the evidence was insufficient to support

his conviction and, in an appeal from an order denying his

postconviction motion for a new trial, consolidated with his

direct appeal, contends that he received ineffective assistance

of counsel. We conclude that the evidence at trial was

sufficient to support his conviction, but agree that his motion

for a new trial should have been allowed.

Sufficiency. The defendant's challenge to the sufficiency

of the evidence is directed to the Commonwealth's proof of

identity of the defendant as the perpetrator of the battery

against the victim. In brief summary, the evidence at trial

demonstrated that, while in the emergency room at North Shore Medical Center in Salem, the defendant became violent and bit

one of the nurses who attempted to restrain him. When police

responded, the victim advised the responding officer that his

assailant was in a room that he identified by room number and by

pointing to it (the room was approximately fifteen yards away).

Upon entering the room, the officer observed only one person,

the defendant.1 The evidence, thus summarized, was sufficient to

support the conclusion that the defendant was the person who

committed the battery. See Commonwealth v. Galicia, 447 Mass.

737, 748 (2006). The defendant's suggestion that the absence of

evidence of the temporal interval between the battery and the

officer's arrival opens the possibility that the occupant of the

room had changed between the time of the attack and the

officer's arrival goes to the weight, rather than the

sufficiency, of the evidence. In any event, the officer's

testimony describing the information he received did not depend

on his prompt arrival after the attack; he testified that the

victim "pointed out" "the defendant's room" to him.

Ineffective assistance. The defendant separately contends

that his trial counsel was ineffective in her failure to object

to the testimony of the responding officer just described.

1 The defendant matched a very general physical description provided by the victim, but it was too general, standing alone, to identify him as the perpetrator.

2 Under the rule announced in Commonwealth v. Herndon, 475 Mass.

324, 334 (2016), such an objection would have been successful.2

In her affidavit submitted with the defendant's new trial

motion, trial counsel acknowledged that she did not consider

objecting to the testimony on the basis of the Herndon rule, and

offered no strategic reason for that failure.3 Though identity

was not a live issue at trial,4 alert counsel could have mounted

a viable identity defense. As the trial unfolded, it is clear

that "better work [by counsel] might have accomplished something

material for the defense." Commonwealth v. Satterfield, 373

Mass. 109, 115 (1977).

The Commonwealth contends (and the motion judge agreed)

that the error was immaterial because, had counsel successfully

excluded the officer's testimony, the Commonwealth could have

recalled the victim to provide the required predicate. But

Herndon explicitly provides otherwise. See Herndon, 475 Mass.

2 Under that rule, the Commonwealth is required to "inquire directly of the [declarant] about the alleged prior identification before introducing evidence of that alleged identification through a third-party witness." Herndon, 475 Mass. at 334. The victim provided no such testimony during the trial. 3 Trial counsel also acknowledged that she should not have

referred to the person the officer encountered in the hospital room as "the defendant," since that implicitly conceded identity. 4 The defendant's trial counsel sought to justify the defendant's

attack against the victim on grounds of self-defense or necessity.

3 at 334, quoting Smith v. State, 669 A.2d 1, 8 (Del. 1995) ("The

opportunity to recall the declarant witness after the statement

has been introduced through a third party is too limited, and

inappropriately places a 'strategic burden on the non-offering

party'").5

Conclusion. The judgment is vacated, and the finding is

set aside. The order denying the defendant's motion for a new

trial is reversed. The case is remanded to the District Court

for such further proceedings as may be appropriate.6

So ordered.

By the Court (Green, C.J., Rubin & Massing, JJ.7),

Clerk

Entered: March 1, 2023.

5 The Commonwealth suggests that the quoted statement should not apply in a jury-waived trial, but the Supreme Judicial Court imposed no such limitation. 6 The defendant submitted a letter pursuant to Mass. R. A. P.

16 (l), as appearing in 481 Mass. 1628 (2019), responding to a question at oral argument by reference to citation to Commonwealth v. Frisino, 21 Mass. App. Ct. 551, 552-556 (1986), and suggesting that we should order entry of a judgment of not guilty. In our view, the circumstances of the present case more closely resemble those in Commonwealth v. Sepheus, 468 Mass. 160, 173 (2014). 7 The panelists are listed in order of seniority.