Opinion
18-P-1678
10-01-2019
COMMONWEALTH v. Wynonah A. WALFRIED.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Wynonah A. Walfried, was convicted in 2009, after a jury trial in the District Court, of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b ), against her husband. A panel of this court affirmed the conviction. Commonwealth v. Walfried, 79 Mass. App. Ct. 1128, 949 N.E.2d 948 (2011). The defendant now appeals from the order denying her motion for a new trial. We affirm.
"[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ " Commonwealth v. Duart, 477 Mass. 630, 634, 82 N.E.3d 1002 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488, 14 N.E.3d 900 (2014). "An evidentiary hearing is not required unless the defendant raises a ‘substantial issue,’ based on the seriousness of the claim and the adequacy of his showing." Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 n.8, 88 N.E.3d 880 (2017), quoting Commonwealth v. Chatman, 466 Mass. 327, 334, 995 N.E.2d 32 (2013).
To show ineffective assistance of counsel, "the defendant must show [1] that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and [2] that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255, 113 N.E.3d 365 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). In assessing whether the defendant was prejudiced, "a defendant is entitled to a new trial ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ " Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 439, 60 N.E.3d 354 (2016), quoting Commonwealth v. Millien, 474 Mass. 417, 432, 50 N.E.3d 808 (2016).
The defendant asserted in her motion that counsel was ineffective in not calling the defendant's psychiatrist or the defendant's children to testify at trial. The defendant, however, presented no affidavits from trial counsel, her psychiatrist, or her children. Rather, she presented her own self-serving affidavit, which the motion judge was entitled to discredit. See Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 178, 112 N.E.3d 1195 (2018). In the absence of affidavits from the proposed witnesses, we cannot determine whether the testimony of any of those witnesses would have been helpful or harmful to the defense. "Without these affidavits, the judge was ‘unable to rule on the questions whether [the witnesses'] testimony would likely have made a material difference.’ " Commonwealth v. Alvarez, 62 Mass. App. Ct. 866, 870, 822 N.E.2d 307 (2005), quoting Commonwealth v. Collins, 36 Mass. App. Ct. 25, 30, 627 N.E.2d 941 (1994). Similarly, even if we accept the Social Security Administration Form SSA-5002 as authentic and an accurate depiction of the psychiatrist's diagnosis, it is difficult to see how testimony that, more than one year after the incident, the defendant's psychiatrist felt she was suffering from paranoia "with psychotic features," instead of bipolar disorder, would have been of much use to the defense. See Commonwealth v. Carr, 464 Mass. 855, 882, 986 N.E.2d 380 (2013) (failure to present evidence of marginal value not ineffective).
Moreover, the absence of an affidavit from plea counsel, without a description of unsuccessful attempts to secure such an affidavit, is conspicuous. See Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640-641, 863 N.E.2d 978 (2007). See also Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551, 18 N.E.3d 694 (2014) (defendant may defeat adverse inference from absence of plea counsel affidavit by filing "affidavits attesting to plea counsel's lack of cooperation"). Without any description of the steps taken by trial counsel or the reasons therefor, there is no basis for determining that trial counsel's actions were "manifestly unreasonable" (citation omitted). Commonwealth v. Wentworth, 482 Mass. 664, 678, 128 N.E.3d 14 (2019). Accordingly, on the record provided by the defendant, the motion judge properly denied the motion for a new trial without conducting an evidentiary hearing.
Order denying motion for new trial affirmed.