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Commonwealth v. Despasquale

Appeals Court of Massachusetts

December 30, 2014

Commonwealth
v.
Phillip A. Despasquale

Judgments affirmed.

Katherine C. Essington for the defendant.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

OPINION

[22 N.E.3d 163] On direct appeal from his convictions of (1) kidnapping, (2) assault and battery on a disabled person, (3) larceny over $250, and (4) larceny of a motor vehicle, the defendant contends that his trial counsel provided ineffective assistance of counsel.[1]

The preferred method to bring a claim for ineffective assistance of counsel is by way of a motion for a new trial, as it provides the opportunity for an evidentiary hearing and findings related to the trial attorney's performance. See Commonwealth v. McCormick, 48 Mass.App.Ct. 106, 107, 717 N.E.2d 1029 (1999). However, a

Page 915

claim of ineffective assistance may be resolved on direct appeal when the factual basis of the claim appears indisputably on the trial record. See Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344, 639 N.E.2d 1092 (1994).

We summarize the victim's trial testimony, which was corroborated in nearly all material respects. The victim testified that the defendant showed up at her house on January 26, 2011, and told her -- albeit untruthfully -- that her family was in trouble; he said that they had five minutes to leave the house. While driving her car, the defendant directed her to withdraw as much money as she could from her bank account and to write checks payable to him. She testified that when she asked the defendant what the money was for, he did not reply. The victim also testified that she withdrew $500 from her bank [22 N.E.3d 164] account, wrote and cashed two checks (totalling $600) on her brother's account, and gave the money to the defendant. At trial, the defendant did not deny receiving money from the victim, but testified that the victim gave him the money to help him pay for a room he was considering renting.

We conclude that with regard to the claims argued here it is possible on this record to evaluate the performance of the defendant's trial counsel. In order to determine whether a new trial should be granted based on ineffective assistance of trial counsel, we apply the familiar Saferian test. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). See also Commonwealth v. Satterfield, 373 Mass. 109, 115 & n.10, 364 N.E.2d 1260 (1977). Although certain actions of trial counsel did not manifest the skills of a more experienced practitioner, the defendant has failed to demonstrate how the actions he claims his counsel should have taken could have made a difference. See Commonwealth v. Medina, 20 Mass.App.Ct. 258, 259, 479 N.E.2d 738 (1985).

Discussion.

The defendant contends that trial counsel provided ineffective assistance in (1) asking police Officer Jeremy Grniet to read his report to the jury, aspects of which contained extremely prejudicial information about the defendant; (2) failing to object to portions of the testimony of the mother of the complaining witness; (3) failing to realize the significance or absence of any record of certain bank transactions mentioned by the complaining witness; and (4) failing to insist on appropriate redaction of the medical and bank records introduced by the Commonwealth.

1. We think that defense counsel's performance fell below the standard set out in the first prong of Commonwealth v. Saferian, supra, " falling measurably below that which might be expected from an ordinary fallible lawyer."

a. Police report.

There appears to be no reasonable strategy or tactic to justify trial counsel's failure, prior to asking the officer to read the police report to the jury, to at least redact the portion of the report referring to the defendant's " lengthy criminal history." Likewise, there is no rational reason for nor tactical advantage to be gained from counsel's failure to request that that portion of the report be stricken from the record or to request a limiting instruction. ...


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