Opinion
19-P-1630
01-05-2021
COMMONWEALTH v. ROMEO THERMIDOR.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Romeo Thermidor, appeals from judgments of conviction on two indictments charging rape, G. L. c. 265, § 22, and two indictments charging assault and battery on a family or household member, G. L. c. 265, § 13M, claiming ineffective assistance of counsel. The defendant also challenges the trial judge's denial of his motion for a stay of execution of his sentence. We affirm.
Discussion. 1. Ineffective assistance of counsel. The defendant raises his ineffective assistance claim for the first time in this appeal. This approach is strongly disfavored. See Commonwealth v. Medeiros, 456 Mass. 52, 61 (2010); Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Rather, it is well established "that the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Zinser, 446 Mass. at 810.
A "narrow exception" to the general rule permits "review of ineffective assistance claims in special cases where the contested issue concerning the attorney's performance is clear on the extant record." Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124 n.8, cert. denied, 540 U.S. 1009 (2003). Such a claim, based solely on the trial record, "is in its 'weakest form' because 'it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.'" Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
The record in this case does not present clear proof of ineffective assistance. Many of the defendant's claims concern trial counsel's alleged failure "to conduct an independent investigation of the facts." Commonwealth v. Baker, 440 Mass. 519, 529 (2003). Of course, the efforts that counsel made, or failed to make, in preparing for trial are not apparent on the record. For example, the defendant states that trial counsel failed to hire or consult an expert and a private investigator. However, counsel successfully moved for funds to obtain experts on bipolar disorder and autism and an investigator, and nothing in the record shows that he did not consult with either.
The defendant faults trial counsel for his admitted inexperience in defending against charges of indecent assault and battery on a person with an intellectual disability. However, the prosecutor also stated that he had "never seen this charge tried before," and the discussion between both attorneys and the judge suggests that this charge was not often prosecuted. Moreover, trial counsel's decision not to call an expert regarding the victim's alleged intellectual disability was clearly a strategic decision motivated by the fact that the Commonwealth carried the burden of showing the victim's intellectual disability. "Tactical decision-making by counsel will be considered ineffective if 'manifestly unreasonable when made.'" Commonwealth v. Hampton, 88 Mass. App. Ct. 162, 166 (2015), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Far from being manifestly unreasonable, the decision was in fact advantageous, given that the judge ultimately entered a required finding of not guilty on this element of the offense.
Indeed, the jury ultimately acquitted the defendant on the lesser included offense associated with this charge, as well as three other indictments.
The defendant further criticizes trial counsel's failure to obtain an "exculpatory medical record" that he contends was crucial to his defense. This medical record, however, is not part of the record on appeal. In his brief, the defendant offers to provide us with a copy of the medical record for our "in camera" review. We do not take evidence in appeals; it is for this very reason that a motion for a new trial is the preferred method for advancing ineffective assistance claims. See Commonwealth v. Laguer, 410 Mass. 89, 94 (1991) (rejecting claims "predicated on facts that have not been established or are grounded on mere speculation with regard to likely prejudice").
We discern no merit in the defendant's claims that trial counsel did not competently represent him and behaved in a manner that was cumulatively "incompetent, inefficient and inattentive." Trial counsel filed motions and memoranda prior to trial, demonstrated familiarity with the facts of the defendant's case, called and examined witnesses, cross-examined the Commonwealth's witnesses, presented a theory of defense, actively participated in trial, and obtained acquittals on half of the indictments tried. Because trial counsel's deficient performance does not appear indisputably on the record, the defendant has failed to prove his ineffective assistance claim.
2. Motion for a stay of execution of sentence. After the judge sentenced the defendant, trial counsel moved for a stay of execution of the sentence, arguing that the defendant had a meritorious claim of ineffective assistance. The defendant purports to appeal from the denial of that motion.
Following the denial of a motion for a stay in the trial court, a criminal defendant may seek a stay from a single justice of the court that will hear the appeal. See Christie v. Commonwealth, 484 Mass. 397, 400 (2020); Mass. R. A. P. 6 (b), as appearing in 481 Mass. 1608 (2019). However, there is no appeal from the trial judge's denial of a stay. See Commonwealth v. Allen, 378 Mass. 489, 499 (1979) ("A denial of stay by the trial judge . . . is not subject to review, but a new application may be made to a Justice of the Appeals Court"). Even if we were to consider the defendant's claim, we would discern no abuse of discretion in the judge's denial of the stay. The defendant did not present a viable claim of ineffective assistance.
Judgments affirmed.
By the Court (Massing, Kinder & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 5, 2021.