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.
4