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-791
COMMONWEALTH
vs.
HECTOR A. RAMIREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant
was convicted of assault and battery by means a dangerous
weapon. He now appeals, arguing that the motion and trial
judges improperly denied his counsel's motions to withdraw and
that the prosecutor improperly withheld exculpatory evidence.
We affirm.
Background. We recite the facts in the "light most
favorable to the Commonwealth," Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979), reserving certain details for later
discussion.
The defendant was incarcerated at the Middleton House of
Correction. On October 5, 2019, Correctional Officer Sergeant
James Ridley escorted inmates from their housing unit into the
dining hall. Sergeant Ridley observed the defendant walk over
to another inmate and strike the inmate in the head with a food
tray. Video footage from one camera in the dining hall captured
the incident and shows the defendant smash the tray twice over
the inmate's head. Sergeant Ridley testified that there were
four to six cameras in the dining hall. He had not observed any
other disturbance in the dining hall prior to seeing the
defendant hit the inmate with the food tray. The defendant was
then taken down to the ground, placed in handcuffs and brought
to the Restrictive Housing Unit.
Investigator John Zaccari was responsible for investigating
incidents at the house of correction. He investigated the
defendant’s altercation by using the digital camera system. He
stated that the cameras were working properly on the day of the
incident and that the camera server rewrites itself every six
months. Investigator Zaccari also testified that there were
four cameras in the dining hall. After reviewing footage from
all four cameras, he requested only the video footage from one
camera to be burned onto a disc because, in his opinion, that
footage "was really the best view we had." He testified that
Investigator Crowley preserved the video footage from one of the
cameras by placing it onto a disc, which was then provided to
the district attorney's office. The disc was entered into
evidence. Investigator Zaccari did not speak to any inmates or
correction officers who were present on the day of the incident.
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Another video recording was entered into evidence which
showed that sometime earlier, as the inmates were lining up to
go into the dining hall, the alleged victim approached the
defendant and pointed his finger toward the defendant's face.
As the defendant walked away, the victim grabbed the defendant's
left arm.
Trial counsel argued in closing that because the jury "only
saw one camera angle" from the four cameras operating at the
time of the incident, the missing video footage would have given
a full picture of what occurred between the defendant and the
victim. He also faulted Investigator Zaccari for not speaking
to any other correction officers or inmates. Defense counsel
argued that the jury should acquit the defendant because he had
nowhere to go and was defending himself.
Discussion. The defendant's first argument is that the
motion judge improperly denied his counsel's initial motion to
withdraw, made several months before the trial date. On
December 6, 2021, the defendant moved to discharge his court-
appointed attorney. The defendant stated he was unhappy and
frustrated because the "video where they [other inmates] are
being aggressive towards [him]" no longer existed. Counsel
explained, "[the defendant] asked me to get another video from
the folks . . . prior to the lunch," and that "after reviewing
that video, there was a second video that he asked me to look
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for. At the time I got around to this, the video had been
erased."
After hearing from trial counsel, the motion judge invited
the defendant to address the court regarding his dissatisfaction
with trial counsel. The defendant stated he was frustrated
because he "told [his] lawyer exactly what happened" -- that
"they [the victim among others] started bothering me, then they
followed me to the kitchen" -- and that defense counsel's
failure to request the video recordings of the additional camera
angles from the dining hall before they were deleted was "the
fault of [his] . . . lawyer and the DAs." The judge explained
that the jail video recordings had been destroyed and no lawyer
nor the court could recreate the video recordings. He then
provided the defendant choices: "you go forward and have a
trial, but that video that you're talking about isn't going to
be part of it, whosever fault that may be. It's just not part
of it . . . we'll give you a trial date and you see what
happens. And then you can choose to have a judge or a jury."
The defendant responded, "Okay, I'll go to trial." The
motion judge and the defendant then discussed his legal
representation. The defendant stated, "It's my right to have
another lawyer" and the judge responded, "Well, you can hire
another lawyer. It's not your right to get another lawyer
appointed, sir." The judge then denied the defendant's motion.
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"Whether a motion for substitution of counsel should be
allowed depends on the defendant's demonstrating good cause.
Some examples of good cause include counsel's incompetence or
failure to prepare a defense, conflict of interest, or a
complete breakdown in communication which threatens the
defendant's right to a fair trial." Commonwealth v. Moran, 17
Mass. App. Ct. 200, 204 (1983). A change of counsel is left to
the discretion of the judge and should "be exercised only after
the defendant has been given an adequate opportunity to state
his grounds for seeking discharge of counsel." Id. at 204-205.
The defendant's complaints solely concerned the missing
video recordings. The defendant expressed no dissatisfaction
with his attorney's performance. The judge therefore did not
abuse his discretion when he concluded that the defendant had
not, "at least as far as I have heard, given me any reason to
suggest to me that [trial counsel], who is appointed . . . has
not done his job and that a different attorney would benefit
[him]."
The defendant also argues that his counsel's second motion
to withdraw -- on the morning of trial -- should have been
allowed. After the case was called, the defendant not present,
trial counsel informed the judge, "I would move to withdraw
based on a breakdown in communication between myself and my
client." However, when the defendant appeared in court, he
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asked to speak and said, "I only -- I just want to say I get
along fine with him. I don't want to hurt his record as an
attorney." The defendant then explained to the trial judge the
issues with the missing video recordings.
After some further discussion between the judge and counsel
regarding the video recordings, defense counsel, at sidebar in
the presence of the defendant, stated,
"Judge, essentially, talking with my client this morning,
it appears that he was giving me somewhat veiled threats
against my license, and that sort of leaves me with a
question of what confidence does he have in me. Is that
sitting in the back of my head at trial, what does that do
for the validity and the integrity of the case if he's now
moved to withdraw, it's not allowed, and now he's --."
The judge then gave the defendant the opportunity to speak
about counsel's asking to withdraw. Once again, the defendant
talked about the facts of the case. The judge again questioned
the defendant about whether he wanted trial counsel to withdraw,
and the defendant responded, "I don't think anything about him
withdrawing because then we would have to get another date, then
the case would have to be continued." The defendant and the
judge further discussed the facts of the case. Trial counsel
informed the judge, "And, your Honor, for the record, my motion
was -- today was based on the statements regarding my license
and how I felt that was -- how that represented his
feelings . . . towards this relationship, not so much any
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evidentiary issues that have already been taken care of." The
defendant reiterated his feelings about his lawyer:
"I told him I have nothing against him. . . . I told him
that if the evidence that shows my defense doesn't show up,
then I will appeal my case. And when I said that, he
became nervous and I told him that if he's doing his job
well done, he has nothing to worry about."
The motion to withdraw was denied and a jury trial was
conducted.
The Supreme Judicial Court recently stated in Commonwealth
v. Dew, 492 Mass. 254, 261 (2023), "It is difficult to overstate
the essential importance of the right to counsel in our
adversary system of criminal justice." See United States v.
Cronic, 466 U.S. 648, 653 (1984) (accused person's right to
counsel "is a fundamental component of our criminal justice
system"). The procedural and substantive safeguards that define
our criminal justice system are designed to assure that the
accused receives fair proceedings and a fair trial and largely
would be for naught if the accused were left to fend for him- or
herself without the assistance of counsel to navigate and
exercise his or her rights. Gideon v. Wainwright, 372 U.S. 335,
344-345 (1963). See Cronic, supra at 653-654 ("Of all the
rights that an accused person has, the right to be represented
by counsel is by far the most pervasive for it affects his
ability to assert any other rights he may have" [quotation
omitted]; counsel's assistance is "the means through which the
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other rights of the person on trial are secured"). The right to
be heard, and even the right to a trial itself, "would be, in
many cases, of little avail if it did not comprehend the right
to be heard by counsel." Powell v. Alabama, 287 U.S. 45, 69
(1932). See Cronic, supra at 653 n.8, quoting Powell, supra at
69 (accused person "requires the guiding hand of counsel at
every step in the proceedings against him").
Accordingly, "under art. 12, if a defendant establishes an
actual conflict of interest, he is entitled to a new trial
without a further showing; he need not demonstrate that the
conflict adversely affected his lawyer's performance or resulted
in actual prejudice." Commonwealth v. Mosher, 455 Mass. 811,
819 (2010). See Commonwealth v. Cousin, 478 Mass. 608, 617
(2018) (actual conflict requires no showing of prejudice by
defendant because prejudice is inherent); Commonwealth v.
Holliday, 450 Mass. 794, 806, cert. denied, 555 U.S. 947 (2008).
"An 'actual' or 'genuine' conflict of interest arises where the
'independent professional judgment' of . . . counsel is
impaired, either by his own interests or by the interests of
another client." Commonwealth v. Stote, 456 Mass. 213, 218
(2010), quoting Commonwealth v. Shraiar, 397 Mass. 16, 20
(1986). The defendant must marshal "sufficient, concrete
evidence" of an attorney's divided loyalty to carry "the burden
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of proving both the existence and precise character of the
alleged conflict of interest." Cousin, supra at 617-618.
Counsel's concern that the defendant might report him to
the Board of Bar Overseers (BBO) did not create an actual
conflict requiring a new trial. Even where a defendant in fact
contacted the BBO following a breakdown in communication with
his attorney, the Supreme Judicial Court concluded that the
representation was "not burdened by any actual conflict" because
the attorney's advocacy remained manifestly zealous.
Commonwealth v. Fernandes, 485 Mass. 172, 196 (2020), cert.
denied, 141 S. Ct. 1111 (2021). See State v. Reddick, 230 Neb.
218, 222 (1988) (defendant's complaints did not create a
conflict of interest because they would more likely encourage
the attorney to provide "the very best defense" matching the
defendant's interests); State v. Sinclair, 46 Wash. App. 433,
437 (1986) (concluding that defendant's formal complaint against
lawyer did not create an actual conflict).
Here, the defendant's dispute with trial counsel was less
pronounced because, at most, the defendant threatened to file a
BBO complaint against trial counsel. And because the attorney
characterized the remark as a "veiled threat" the record is
unclear as to what exactly the defendant threatened to do,
whether he meant it, or what he wished to accomplish. The
defendant also explained on several occasions that the focal
9
point of his frustration lay with the deleted video recordings
and not with other aspects of his legal representation. He
further emphasized that he didn't "want to hurt [trial
counsel's] record as an attorney."
Even had a formal complaint been filed, we would still look
at whether there was an "actual conflict," Fernandes, 485 Mass.
at 195, and here the defendant's "veiled threat" did not cause
trial counsel's interests to conflict with the defendant's
interests. Thus, we conclude that the trial judge did not abuse
his discretion when he denied trial counsel's motion to
withdraw.
Finally, the defendant argues that that the Commonwealth
violated its obligations to disclose and produce video footage
from other camera angles which allegedly might have produced
evidence favorable to his self-defense claim. "To obtain a new
trial on the basis of nondisclosed exculpatory evidence, a
defendant must establish (1) that the evidence [was] in the
possession, custody, or control of the prosecutor or a person
subject to the prosecutor's control, (2) that the evidence is
exculpatory, and (3) prejudice [quotations omitted]."
Commonwealth v. Caldwell, 487 Mass. 370, 375 (2021).
"Exculpatory evidence is that evidence which tends to negate the
guilt of the accused . . . or, stated affirmatively, supporting
the innocence of the defendant [quotations omitted]."
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Commonwealth v. Pisa, 372 Mass. 590, 595, cert. denied, 434 U.S.
869 (1977).
The defendant has failed to meet his burden to show that
the missing video recordings would tend to exculpate him.
Evidence was presented that showed that the victim was
antagonistic towards him prior to entering the dining hall. The
defendant suggests that the missing video evidence would support
his self-defense argument by showing that a similar interaction
also occurred in the dining hall. However, because no witness
testimony established that the victim and defendant had any
physical altercation within the dining hall, we have no basis
for concluding that the missing video recordings would have
displayed such an altercation. And even had the video
recordings shown what the defendant suggested, such an
altercation would have fallen well short of supporting a self-
defense claim because, by the time the defendant attacked the
victim, any previous quarrel had subsided, and the victim was
not attacking the defendant.
Conversely, a correctional guard testified, consistent with
the video recording that was in evidence, that the defendant
approached the victim from behind and hit him over the head with
the food tray. This guard did not testify that he saw the
victim do anything other than sit at his dining table. We
therefore conclude that the failure to preserve the alternate
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dining hall video recordings from being automatically deleted
did not violate the defendant's due process rights.
Judgment affirmed.
By the Court (Meade,
Hershfang & D'Angelo, JJ. 1),
Clerk
Entered: October 2, 2023.
1 The panelists are listed in order of seniority.
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