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-868
COMMONWEALTH
vs.
VIRIATO F. DEPINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a District Court judge's denial
of his motion for a new trial.1 We affirm.
The defendant claims that his trial counsel and first
appellate counsel were ineffective.2 Generally, to prevail on an
ineffective assistance of counsel claim a defendant must
demonstrate that, but for his counsel's "serious incompetence,
inefficiency, or inattention," Commonwealth v. Saferian, 366
Mass. 89, 96 (1974), "the result of the proceeding would have
been different," Commonwealth v. Mahar, 442 Mass. 11, 15 (2004),
1 In a margin notation, the judge denied the motion and wrote "(evidentiary hearing)"; however, the parties agree the hearing was not evidentiary. Nothing turns on this discrepancy. 2 Following a jury trial, the defendant was convicted of
aggravated assault and battery, and assault and battery by means of a dangerous weapon. A panel of this court affirmed the convictions. See Commonwealth v. Depina, 87 Mass. App. Ct. 1107 (2015). quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).
When assessing whether appellate counsel was ineffective, "we
focus on whether appellate counsel 'failed to raise a
significant and obvious issue . . . which . . . may have
resulted in a reversal of the conviction, or an order for a new
trial.'" Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 282
(2014), quoting Commonwealth v. Sowell, 34 Mass. App. Ct. 229,
232 (1993). The defendant identifies three areas wherein he
claims his attorneys were ineffective.3 We address each in turn.
1. Use of the term victim. The defendant claims that his
trial counsel was ineffective for failing to object to the use
of the term "victim" to describe M.O., and that appellate
counsel was ineffective for failing to raise this issue in his
direct appeal. In pertinent part, the complaint alleged that
the defendant assaulted and beat M.O, who sustained significant
injuries.4
During the trial, the prosecutor and Commonwealth witnesses
referred to M.O. as the victim multiple times. As a general
rule, "the better practice is for the prosecutor, defense
3 The record does not contain an affidavit from the defendant's trial counsel or first appellate counsel. See Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004) (judge may consider lack of affidavit from counsel in rejecting claim of ineffective assistance). 4 M.O. suffered a fractured skull, concussion, severe abrasions,
and internal bleeding.
2 counsel, the judge, and all of the witnesses to refrain from
describing the person [injured] as the victim." Commonwealth v.
Cadet, 473 Mass. 173, 181 (2015). Here, M.O. insisted that she
-- not the defendant -- was the cause of her injuries, and that
she had not been assaulted. The jury were not required to
believe this testimony. See Commonwealth v. Lao, 443 Mass. 770,
779 (2005). "We assume 'a certain degree of jury
sophistication' . . . and do not think it likely that the jury
were swayed" by the use of the term victim. Commonwealth v.
Cadet, 473 Mass. at 181, quoting Commonwealth v. Kozec, 399
Mass. 514, 517 (1987). In the circumstances of this case, the
use of the word victim did not create a substantial risk of a
miscarriage of justice and therefore trial counsel was not
ineffective for failing to object to it; appellate counsel was
also not ineffective for failing to raise the issue in the
direct appeal. See Breese v. Commonwealth, 415 Mass. 249, 252
(1993) (if defendant received effective assistance of counsel at
trial, no argument appellate counsel was ineffective).
2. Testimony regarding scuff marks. The defendant next
argues that his trial attorney was ineffective for failing to
object to a police detective's opinion as to the source of scuff
marks on M.O.'s shoe.5 On direct examination, the detective
5 The shoe was entered in evidence without objection.
3 testified that the shoe had "a scuff down the side and some
black markings on it." When asked whether he was "able to make
any opinion on the scuff marks on that shoe," the detective said
that "[i]t was like [the shoe] was dragged across the pavement."
Even if we assume that an objection to the detective's
testimony would have been sustained by the judge, its admission
did not create a substantial risk of a miscarriage of justice.
Through cross-examination, trial counsel effectively raised
doubt about the source and timing of the scuff marks, thereby
diminishing any prejudice to the defendant. To the extent that
this was a tactical decision, it was not manifestly unreasonable
when made, and therefore trial counsel was not ineffective. See
Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). And,
because trial counsel was not ineffective, neither was appellate
counsel. See Breese, 415 Mass. at 252.
3. Prosecutor's closing argument. Finally, the defendant
contends that his trial counsel was ineffective for failing to
object to the prosecutor's closing argument because the
prosecutor misstated the reasonable doubt standard, improperly
vouched for Commonwealth witnesses, and misstated the evidence.
We are guided by the well-known proposition that "[r]emarks made
during closing arguments are considered in the context of the
whole argument, the evidence admitted at trial, and the judge's
instructions to the jury." Commonwealth v. Philbrook, 475 Mass.
4 20, 28 (2016), quoting Commonwealth v. Sylvia, 456 Mass. 182,
193 (2010). We presume that the jury follows all of the judge's
instructions. See Commonwealth v. Cheremond, 461 Mass. 397, 414
(2012).
a. Reasonable doubt standard. The defendant takes issue
with the prosecutor's statement that "even if there's some part
of you that wants to give [the defendant] the benefit of the
doubt, just some small part, you can't. Because, his behavior
was so wanton and reckless it caused serious injury to [M.O.]."
This statement is problematic and was better left unsaid.
However, shortly before the challenged statements, the
prosecutor explicitly acknowledged that she bore the burden of
proof beyond a reasonable doubt. Further, the judge gave clear
and precise instructions to the jury on the purpose of closing
arguments and the burden of proof. Taken as a whole, the
challenged portions of the prosecutor's closing did not create a
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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
22-P-868
COMMONWEALTH
vs.
VIRIATO F. DEPINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a District Court judge's denial
of his motion for a new trial.1 We affirm.
The defendant claims that his trial counsel and first
appellate counsel were ineffective.2 Generally, to prevail on an
ineffective assistance of counsel claim a defendant must
demonstrate that, but for his counsel's "serious incompetence,
inefficiency, or inattention," Commonwealth v. Saferian, 366
Mass. 89, 96 (1974), "the result of the proceeding would have
been different," Commonwealth v. Mahar, 442 Mass. 11, 15 (2004),
1 In a margin notation, the judge denied the motion and wrote "(evidentiary hearing)"; however, the parties agree the hearing was not evidentiary. Nothing turns on this discrepancy. 2 Following a jury trial, the defendant was convicted of
aggravated assault and battery, and assault and battery by means of a dangerous weapon. A panel of this court affirmed the convictions. See Commonwealth v. Depina, 87 Mass. App. Ct. 1107 (2015). quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).
When assessing whether appellate counsel was ineffective, "we
focus on whether appellate counsel 'failed to raise a
significant and obvious issue . . . which . . . may have
resulted in a reversal of the conviction, or an order for a new
trial.'" Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 282
(2014), quoting Commonwealth v. Sowell, 34 Mass. App. Ct. 229,
232 (1993). The defendant identifies three areas wherein he
claims his attorneys were ineffective.3 We address each in turn.
1. Use of the term victim. The defendant claims that his
trial counsel was ineffective for failing to object to the use
of the term "victim" to describe M.O., and that appellate
counsel was ineffective for failing to raise this issue in his
direct appeal. In pertinent part, the complaint alleged that
the defendant assaulted and beat M.O, who sustained significant
injuries.4
During the trial, the prosecutor and Commonwealth witnesses
referred to M.O. as the victim multiple times. As a general
rule, "the better practice is for the prosecutor, defense
3 The record does not contain an affidavit from the defendant's trial counsel or first appellate counsel. See Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004) (judge may consider lack of affidavit from counsel in rejecting claim of ineffective assistance). 4 M.O. suffered a fractured skull, concussion, severe abrasions,
and internal bleeding.
2 counsel, the judge, and all of the witnesses to refrain from
describing the person [injured] as the victim." Commonwealth v.
Cadet, 473 Mass. 173, 181 (2015). Here, M.O. insisted that she
-- not the defendant -- was the cause of her injuries, and that
she had not been assaulted. The jury were not required to
believe this testimony. See Commonwealth v. Lao, 443 Mass. 770,
779 (2005). "We assume 'a certain degree of jury
sophistication' . . . and do not think it likely that the jury
were swayed" by the use of the term victim. Commonwealth v.
Cadet, 473 Mass. at 181, quoting Commonwealth v. Kozec, 399
Mass. 514, 517 (1987). In the circumstances of this case, the
use of the word victim did not create a substantial risk of a
miscarriage of justice and therefore trial counsel was not
ineffective for failing to object to it; appellate counsel was
also not ineffective for failing to raise the issue in the
direct appeal. See Breese v. Commonwealth, 415 Mass. 249, 252
(1993) (if defendant received effective assistance of counsel at
trial, no argument appellate counsel was ineffective).
2. Testimony regarding scuff marks. The defendant next
argues that his trial attorney was ineffective for failing to
object to a police detective's opinion as to the source of scuff
marks on M.O.'s shoe.5 On direct examination, the detective
5 The shoe was entered in evidence without objection.
3 testified that the shoe had "a scuff down the side and some
black markings on it." When asked whether he was "able to make
any opinion on the scuff marks on that shoe," the detective said
that "[i]t was like [the shoe] was dragged across the pavement."
Even if we assume that an objection to the detective's
testimony would have been sustained by the judge, its admission
did not create a substantial risk of a miscarriage of justice.
Through cross-examination, trial counsel effectively raised
doubt about the source and timing of the scuff marks, thereby
diminishing any prejudice to the defendant. To the extent that
this was a tactical decision, it was not manifestly unreasonable
when made, and therefore trial counsel was not ineffective. See
Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). And,
because trial counsel was not ineffective, neither was appellate
counsel. See Breese, 415 Mass. at 252.
3. Prosecutor's closing argument. Finally, the defendant
contends that his trial counsel was ineffective for failing to
object to the prosecutor's closing argument because the
prosecutor misstated the reasonable doubt standard, improperly
vouched for Commonwealth witnesses, and misstated the evidence.
We are guided by the well-known proposition that "[r]emarks made
during closing arguments are considered in the context of the
whole argument, the evidence admitted at trial, and the judge's
instructions to the jury." Commonwealth v. Philbrook, 475 Mass.
4 20, 28 (2016), quoting Commonwealth v. Sylvia, 456 Mass. 182,
193 (2010). We presume that the jury follows all of the judge's
instructions. See Commonwealth v. Cheremond, 461 Mass. 397, 414
(2012).
a. Reasonable doubt standard. The defendant takes issue
with the prosecutor's statement that "even if there's some part
of you that wants to give [the defendant] the benefit of the
doubt, just some small part, you can't. Because, his behavior
was so wanton and reckless it caused serious injury to [M.O.]."
This statement is problematic and was better left unsaid.
However, shortly before the challenged statements, the
prosecutor explicitly acknowledged that she bore the burden of
proof beyond a reasonable doubt. Further, the judge gave clear
and precise instructions to the jury on the purpose of closing
arguments and the burden of proof. Taken as a whole, the
challenged portions of the prosecutor's closing did not create a
substantial risk of a miscarriage of justice. See Commonwealth
v. Jones, 471 Mass. 138, 148 (2015).
b. Vouching. The defendant contends that the prosecutor
improperly vouched for the Commonwealth's case and witnesses.6
6 The challenged remarks included that there is "no other possible reason for why this happened"; "their story -- the story that they want you to believe -- does not make sense. It's improbable, and it's ridiculous"; "[t]he Commonwealth believes that we have proven beyond a reasonable doubt that [the defendant] did this intentionally"; and "why would these two
5 Vouching occurs when "an attorney expresses a personal belief in
the credibility of a witness or indicates that . . . she has
knowledge independent of the evidence before the jury."
Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting
Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). None of the
challenged remarks suggested that the prosecutor had personal
knowledge of the witnesses' credibility or independent knowledge
of evidence that was not before the jury. See Commonwealth v.
Grier, 490 Mass. 455, 471 (2022). The remarks are best
described as the prosecutor's attempt to marshal the evidence
and suggest to the jury the conclusion they should draw from it,
all of which is permissible. See Commonwealth v. Rutherford,
476 Mass. 639, 643 (2017).
c. Misstating the evidence. Finally the defendant claims
that the prosecutor misstated the evidence or referenced
evidence not in the record when she argued that the jury should
consider the age difference between the defendant and M.O. when
assessing whether the defendant had influenced M.O.'s testimony.
The prosecutor was permitted to ask the jury to draw an
inference that the defendant influenced M.O.'s testimony based
on the age disparity between the two and the nature of their
[witnesses], who have no idea who these individuals are, why would they testify to that yesterday? They testified to it, because it's true."
6 dating relationship. See Commonwealth v. Diaz, 478 Mass. 481,
487 (2017), quoting Commonwealth v. Burgess, 450 Mass. 422, 437
(2008) ("A prosecutor may attempt to 'fit all the pieces of
evidence together' by suggesting what 'conclusions the jury
should draw from the evidence'").
Trial counsel was not ineffective for failing to object to
the prosecutor's closing argument; nor was appellate counsel
ineffective for failing to raise it in the defendant's direct
appeal. See Breese, 415 Mass. at 252.
Order denying motion for a new trial affirmed.
By the Court (Milkey, Blake & Sacks, JJ.7),
Clerk
Entered: September 28, 2023.
7 The panelists are listed in order of seniority.