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15-P-69                                                   Appeals Court

                   COMMONWEALTH   vs.   DONNA BEAULIEU.


                              No. 15-P-69.

          Essex.       April 12, 2016. - December 21, 2016.

               Present:    Cohen, Rubin, & Hanlon, JJ.


Assault and Battery. Practice, Criminal, New trial, Comment by
     judge, Disqualification of judge, Assistance of counsel.
     Evidence, Prior misconduct, Identification.
     Identification.



     Complaint received and sworn to in the Lynn Division of the
District Court Department on April 24, 2013.

     The case was tried before Albert S. Conlon, J., and a
motion for a new trial was heard by him.


     Andrew P. Power for the defendant.
     Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.      After a jury trial, the defendant, Donna

Beaulieu, was convicted of assault and battery on her teenage
                                                                      2


daughter.1    Approximately one week later, the victim recanted;

the defendant then filed a motion for a new trial based solely

on the recantation.       After an evidentiary hearing, the motion

was denied.    The defendant now appeals from the denial of her

motion for a new trial, arguing that the judge abused his

discretion by "berating" the recanting witness and threatening

her with incarceration for testifying in support of the

defendant's motion.

     The defendant also appeals from her underlying conviction

on three grounds.    First, she argues that the judge abused his

discretion by admitting evidence at trial of prior bad acts.

Second, she alleges counsel was ineffective for failing to

object to that evidence and for calling a police witness who

gave damaging testimony.      Finally, the defendant contends that

the judge erred in denying her motion for a required finding of

not guilty, given what she describes as a lack of identification

evidence at trial.    We affirm.

     Background.     a.   The trial.   The jury heard the following

evidence.    On April 22, 2013, the victim, a middle school honor

student, became ill at school; she went to the school nurse's

office, and, afterwards, her mother picked her up and took her

home.    When she arrived at home, she rested on the couch for a


     1
       The defendant was acquitted of assault and battery by
means of a dangerous weapon.
                                                                      3


few hours, then had dinner and started working on her homework

in the kitchen.   At some point later, her mother called her into

the living room; her mother was "frustrated" because she was

having difficulty using a Web site relating to their cellular

telephones.   When the victim came into the living room, her

mother was "in . . . a bad mood overall" and began yelling at

the victim about "just everything" and for not filling out an

"award sheet."

     The victim went into another room to fill out the award

sheet on her own, as she did not want her mother's help.2      When

she was putting the completed form into her bag, her mother

asked to review the sheet to make sure it was done correctly.

When the victim refused (because she believed she had completed

the form correctly and did not want her mother to change it),

her mother became "very angry," "mean," and "cold."     The mother

then took the sheet from the victim, as well as the wooden

pencil she was using.     The victim decided to "diffuse the

situation" by showering while her mother was looking over what

the victim had written.

     2
       The award sheet was a document that the victim was to
prepare to explain why she thought that she should receive an
award. She testified that she did not want her mother's help
"[b]ecause my mom lies on things like that. We had done
something very similar to it a couple weeks prior and some of
the things that she made me put down were very dishonest and I
didn't want that because my teachers know who I am and I wanted
them to choose for themselves like that I was a good enough
student to get whichever award it was I was going to get."
                                                                     4


     When the victim returned to the living room after her

shower, she asked her mother for the award sheet back; the

mother refused, saying that the victim did not need the sheet

and that "[she] did it wrong."    After asking a few more times,

the victim started backing away from her mother, "because [the

victim] [knew] that [her mother] has a very violent, like,

cycle"; "when things get [the defendant] upset, sometimes she

resorts to violence and physical punishment."    When the victim

began walking upstairs to her bedroom, her mother followed, and

then shoved the victim several times in the right arm causing

her to hit her left arm against the wall; at the same time, the

eraser top on the pencil the defendant was holding jabbed into

the victim's side "causing a very small bruise."    After she

followed the victim upstairs and into her bedroom, the victim's

mother hit her in the face with the palm of her hand, producing

a swollen lip when the victim's tooth cut into her lip.

     At school the next day, one of the victim's friends noticed

that the victim was "unusually upset," and the friend asked her

what was wrong.     The victim told her friend that she had gotten

into a fight with her mother the previous night, and showed her

friend the bruise on her arm that "was a lot worse than [she]

thought it was."3    Another friend brought the victim to the


     3
       The mother had driven the victim to school that morning;
when she was getting out of the car, the victim told the
                                                                    5


guidance office, where the victim told the counsellor what had

happened the night before; the victim then went to the school

nurse's office, where she spoke with the school principal and

Saugus Police Detective Sean Moynahan.4   The victim was taken

directly to the hospital.

     At trial, the victim testified that her mother had been

hitting her at least two times each month for the last three or

four years (beginning after her brother moved out); the victim

never reported this abuse to anyone, including her pediatrician,

friends, or neighbors, and the police were never called.   Her

mother hit her, causing bruises, in places on her body that were

usually covered with clothing.   On cross-examination, the victim

read aloud a complimentary school essay that she had written

about her mother (approximately one month before the incident

occurred).   In the essay, the victim described her mother as

"brave and courageous and admirable."

     Moynahan, testifying as a defense witness, stated that he

had a brief conversation with the victim at the school nurse's

office, where she was sitting with ice on her arm in the nurse's

office; he opined that the victim was "very articulate, very



defendant she loved her, and her mother replied, "If you really
love me, you wouldn't be treating me the way you do."
     4
       The guidance counsellor and Moynahan each took photographs
of the bruises on the victim's arm, hip and lip (admitted at
trial as exhibits 1-6).
                                                                     6


intelligent.   She was very upset and sad.   She was -- in the

school she was in an extreme amount of pain."   Moynahan

confirmed that he had taken photographs of the victim's injuries

in the nurse's office, although he seemed confused about which

arm he had photographed and which arm the defendant had grabbed.

It was at the hospital that the victim told Moynahan the details

of the incident, and he saw that she had "an extensive injury"

on her left arm; the victim also told Moynahan that the abuse by

the defendant had been ongoing since she was in the fifth grade.

    After he returned to the police station, Moynahan

telephoned the defendant and requested that she come to the

police station; when the defendant arrived, she was arrested.

The defendant also testified and denied ever abusing the victim.

    b.   Motion for a new trial.   Approximately one week after

the trial, the victim, who had been placed by the Department of

Children and Families in the home of her aunt, attempted to

reach her mother.   The defendant's counsel responded to the

victim and explained that the defendant was not permitted to

have contact with her.   The victim then sent a letter to defense

counsel, addressed "To Whom It May Concern."    In the letter, she

"recant[ed] everything from [her] testimony," and "just want[ed]

to make things right and go home to [her] [m]om."    This letter

and an affidavit from defense counsel were presented with the

defendant's motion for a new trial.
                                                                   7


     On June 26, 2014, at a hearing on the defendant's motion

for a new trial, the judge expressed his concerns and announced

that he would research the remedies for punishment available to

him if the victim acknowledged perjuring herself at trial.    He

stated more than once that he considered perjury a serious

matter and that there likely would be consequences if the victim

admitted under oath that she had committed perjury.5   Finally, he

said that he wanted to "give everyone the weekend to think

about" the victim's recantation.

     At the hearing, approximately one week later, the victim

was the only witness.    She testified that she had lied during

her trial testimony about her mother's abuse, and that, after

she told the lie, she felt she could not take it back because


     5
         The judge's initial comments included:

          "I can't tell you how offensive I find it that someone
     would put their hand up, swear to tell the truth, and then
     perjure themselves at the expense of someone they love.
     That is not something I walk away from.

          "If I have remedies that I can punish I'm likely to
     use them . . . .

          "I'm going to step it back for a minute because I'm
     going to find out what my remedies are. I may not wait for
     the district attorney's office to take action . . . and I'm
     talking incarceration. . . .

          "I want the Commonwealth -- actually I'm going to give
     everyone the weekend to think about this. I want the
     Commonwealth to find out what it perceives my remedies are,
     and I'm going to do some research as to what I think my
     remedies are, but these aren't games we play."
                                                                     8


she was afraid and intimidated by the police and also by her

aunt.   Her new explanation for her injuries was that she had

been attacked in the school bathroom by two female students; she

was unsure of their full names.

    The judge denied the defendant's motion, stating that he

had found "the victim's trial testimony compelling and

consistent with other evidence admitted in the case and her

testimony on the [m]otion for [n]ew [t]rial less so and

inconsistent with other independent evidence."    The defendant

timely appealed.

    Discussion.     a.   Denial of the motion for new trial.   "In

reviewing an order granting or denying a motion for a new trial,

we accord deference to the views of a motion judge who was also

the trial judge."    Commonwealth v. Spray, 467 Mass. 456, 471

(2014), quoting from Commonwealth v. LeFave, 430 Mass. 169, 176

(1999).   "The decision to grant or deny a motion for a new trial

'is left to the sound discretion of the motion judge.'"     Id. at

472, quoting from Commonwealth v. Jones, 432 Mass. 623, 633

(2000).

    We consider first the defendant's claim that, given the

brevity of his decision, the judge abused his discretion by

failing to give the victim's recantation adequate consideration.

On that issue, we are satisfied that the judge, who heard all of

the trial evidence, as well as the victim's recantation at the
                                                                    9


motion hearing, was entitled to find that the evidence presented

at the motion hearing simply failed to cast doubt on the

truthfulness of the victim's trial testimony.    See Commonwealth

v. Rebello, 450 Mass. 118, 131 (2007).    The defendant did not

request further findings, and none were required.     Implicit in

the judge's rejection of the recantation and his denial of the

motion for a new trial was his assessment that the victim's new

testimony would be so vulnerable to impeachment at a new trial

that it would be "relatively worthless."     Commonwea1th v.

Santiago, 458 Mass. 405, 415 (2010), quoting from Commonwealth

v. Ortiz, 393 Mass. 523, 537 (1984).     There was no abuse of

discretion.

     The defendant next argues that the judge committed an abuse

of discretion by "berating" and "threatening" the victim at the

first day of the hearing on the motion for a new trial.    We

disagree.   Generally, it is not inappropriate for a judge to

warn someone proposing to recant that perjury carries

consequences, including, possibly, incarceration.6    A judge may


     6
       We note that G. L. c. 268, § 4, provides the judge with
authority to take action if there is reason to believe that a
witness has committed perjury ("If it appears to a court of
record that a party or a witness who has been legally sworn and
examined, or has made an affidavit, in any proceeding in a court
or course of justice has so testified as to create a reasonable
presumption that he has committed perjury therein, the court may
forthwith commit him or may require him to recognize with
sureties for his appearance to answer to an indictment for
perjury; and thereupon the witnesses to establish such perjury
                                                                    10


remind a witness of the "duty to tell the truth."    Commonwealth

v. Britto, 433 Mass. 596, 612 (2001).   See Sandrelli v.

Commonwealth, 342 Mass. 129, 130 (1961) (judge instructing grand

jury witness on rights and duties including privilege against

self-incrimination); Commonwealth v. Slaney, 345 Mass. 135, 141-

142 (1962) (judge's discretion to instruct witness about right

to refuse to answer questions that could incriminate her);

Commonwealth v. Molina, 454 Mass. 232, 240 (2009).     Cf.

Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 74 (2005) ("It is

well established that a judge in this Commonwealth may question

witnesses to clarify and develop evidence and to avert

perjury").    Here, the judge followed his admonitions with an

assurance that he was "not trying to put a chill on anybody's

testimony"; the victim had the benefit of counsel to advise her,

and ultimately, she went forward with her testimony.     In this

case, even if more measured language might have been better

suited to this particular situation, we see no abuse of

discretion.

    The defendant's further argument, that the judge should

have disqualified himself sua sponte, is also unavailing.     There

were legitimate concerns about perjury in this situation; either


may, if present, be bound over to the superior court, and notice
of the proceedings shall forthwith be given to the district
attorney"). Obviously, applying such a sanction to a juvenile
would present special problems. However, nothing like that
happened here.
                                                                      11


the victim had been untruthful at trial or she was being

untruthful in her recantation.      There also was reason to suspect

that the recantation was influenced by the victim's desire to

"go home to [her] [m]om," as stated in her letter to defense

counsel.   Although the judge's expressions of dismay and

skepticism were strong language, they simply reflect the reality

of the choices he faced; they do not demonstrate that he was

disabled from considering the motion for a new trial

impartially.    Indeed, it is difficult to imagine how a second

judge would be more suited to judge the witness's credibility

without having heard the trial testimony.

     We reiterate that neither the defendant's lawyer nor the

victim's lawyer objected to the judge's words in any way.        As

noted, the judge concluded the motion hearing with the

statement, "I'm not trying to put a chill on anybody's

testimony, but I just want everyone to understand how seriously

I take this."    The victim's lawyer responded, "I understand,

Judge.   I'll talk to my client."     In addition, because the

victim persisted in her recantation, despite the judge's

remarks, the defendant cannot be said to have been prejudiced.7


     7
       The latter fact was used to advantage in argument by
defense counsel: "When [the witness] testified today she made
reference to being in court last week when your Honor very
forcefully told her that your Honor was going to look into
bringing what . . . action you could take against her,
specifically ordered the district attorney's office to look into
                                                                    12


Even now, she makes no suggestion and certainly no offer of

proof as to how she might have been prejudiced by what the judge

said to the witness.

    We are satisfied that the judge, properly relying on the

evidence presented at the motion hearing, and based on his

"knowledge and evaluation of the evidence at trial," did not

abuse his discretion in finding that the evidence offered at the

hearing on the motion for a new trial had failed to cast doubt

on the truthfulness of the victim's trial testimony.

Commonwealth v. Rebello, 450 Mass. at 131, quoting from

Commonwealth v. Croken, 432 Mass. 266, 271 (2000).

    b.    Direct appeal.8   The defendant also argues three trial

errors:   (1) prior incidents of abuse were improperly admitted;




what action they could take against her. She testified that her
own mother told her, 'Do what's best for you. Don't -- you
know, if it turns out you can't do this, don't worry about me.
Do what's best for you.' She testified that she's here today
telling the truth because it's not morally right to go on with a
lie and to allow her mother to take the blame for something that
she did not do. I would suggest that her testimony today is
believable."
    8
       The defendant did not file a notice of appeal of her
conviction before filing the motion for a new trial. As a
result, the thirty-day period for filing that notice terminated
upon the filing of her motion for a new trial. See Mass.R.A.P.
4(b), as amended, 431 Mass. 1601 (2000). Once the motion for a
new trial was denied, the thirty-day period for filing an appeal
began again. Although the defendant's notice of appeal
specifically cites only the denial of the motion for a new
trial, we include in this opinion the issues she raises relative
to the underlying conviction as well as the denial of the motion
                                                                     13


(2) her motion for a required finding of not guilty was

improperly denied because the defendant had not been identified

as the offender described in the trial; and (3) the defendant

was deprived of effective assistance of counsel.

    We see no error.      First, the judge properly admitted prior

uncharged acts of abuse by the defendant against the victim in

order to provide "the history of the relationship [between the

defendant and the victim] to give context to the jury."    "The

decision to admit the evidence of prior bad acts is committed to

the sound discretion of the judge, whose determination will be

upheld absent palpable error."     Commonwealth v. Montez, 450

Mass. 736, 744 (2008).    Such evidence may be admitted "to show a

common scheme or course of conduct, a pattern of operation,

absence of accident or mistake, intent, or motive."

Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003),

quoting from Commonwealth v. Roche, 44 Mass. App. Ct. 372, 380

(1998).

    Second, the defendant's motion for a required finding of

not guilty was properly denied, as there was evidence sufficient

to support the verdict.    In addition, we note that the defendant

failed to raise the issue of her identification at trial in her

motion for a required finding.    "All grounds for relief . . .



for a new trial. See Mass.R.A.P. 3(c), as appearing in 430
Mass. 1602 (1999).
                                                                  14


shall be raised by the defendant in the original or amended

motion.   Any grounds not so raised are waived unless the judge

in the exercise of discretion permits them to be raised in a

subsequent motion, or unless such grounds could not reasonably

have been raised in the original or amended motion."

Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001).

See Commonwealth v. Randolph, 438 Mass. 290, 294 (2002).

     In any event, a reasonable jury could have inferred from

the victim's testimony that the person to whom she referred as

her mother, or "mom," and with whom she lived in Saugus and

Billerica -- and specifically named in her essay as "Donna,

. . . she is my mother," was in fact, the defendant.9   "Proof of

the identity of the person who committed the offense may be

established in a number of ways and '[i]t is not necessary that

any one witness should distinctly swear that the defendant was

the [person], if the result of all the testimony, on comparison

of all its details and particulars, should identify [the person]


     9
       In addition, the criminal complaint lists the defendant's
address in Saugus; the defendant herself testified that she
lived in Saugus, in Billerica, then later back in Saugus. The
victim testified that before living with her aunt, she "lived in
Saugus with [her] mom"; Donna Hurley (the defendant's best
friend) testified that she frequented, and sometimes stayed
over, at the home of the defendant and the victim in Saugus.
Compare Commonwealth v. Doe, 8 Mass. App. Ct. 297, 299-300
(1979) (indictments described the defendant as being an
inhabitant of Hampden, and the daughters of the defendant
testified that their home with the defendant had been in
Hampden).
                                                                   15


as the offender.'"   Commonwealth v. Blackmer, 77 Mass. App. Ct.

474, 483 (2010), quoting from Commonwealth v. Davila, 17 Mass.

App. Ct. 511, 512 (1984).

    Third, the defendant was not deprived of effective

assistance of counsel.   She raises this issue for the first time

on appeal, presenting the "weakest form of such a challenge

because it is bereft of any explanation by trial counsel for his

[or her] actions and suggestive of strategy contrived by a

defendant viewing the case with hindsight."   Commonwealth v.

Ramos, 66 Mass. App. Ct. 548, 552 (2006), quoting from

Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).     For

that reason, we are unable to determine whether "defense

counsel's asserted failures may in fact have been the considered

product of a tactical decision," Commonwealth v. McCormick, 48

Mass. App. Ct. 106, 108 (1999), as the factual basis for this

claim does not "appear[] indisputably on the trial record."

Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from

Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

    Moreover, there appears to have been no factual basis for

the claim.   By calling Detective Moynahan as a defense witness,

counsel was able to impeach the victim and, arguably, cast some

doubt on the Commonwealth's case, or at least on the detective's

grasp of it.   As we see no error in the admission of the prior

course of conduct between the parties, any objection to the
                                                                  16


uncharged bad acts would have been futile -- as would an

argument that the identification of the defendant fell short.

For all of these reasons, we cannot say that trial counsel's

behavior fell "below that which might be expected from an

ordinary fallible lawyer."   Commonwealth v. Lavoie, 464 Mass.

83, 89 (2013), quoting from Commonwealth v. Saferian, 366 Mass.

89, 96 (1974).

                                   Judgment affirmed.

                                   Order denying motion for
                                     new trial affirmed.10




    10
       We allow the defendant's motion to strike pertaining only
to those portions of the Commonwealth's supplemental record
appendix (pages twenty-three through forty-nine) containing
unredacted medical records not admitted at trial.
    RUBIN, J. (concurring in the judgment).    Although I agree

with the court's disposition of this case, I write to add a few

words about the judge's remarks at the initial hearing where he

was first confronted with the recantation by the defendant's

daughter.

    At trial, the defendant's daughter, a child in middle

school, was the sole witness for the Commonwealth.   Based on her

testimony, the defendant, a single mother with sole custody of

the victim, the only parent who had always had the child in her

care, was convicted of assault and battery.   Her sentence

included a stay-away order allowing no contact with the child.

Fourteen days after the end of the trial, the child recanted the

testimony that had led to her mother's conviction.

    Although the majority's recitation of the facts creates the

impression that the child recanted shortly after learning that

she would be unable to contact her mother, in point of fact she

had been removed from her mother's care the day after the

assault, and had not seen nor, apparently, spoken with her

mother for over a year prior to trial.

    At the hearing on the defendant's motion for a new trial,

the judge began by saying:

         "I can't tell you how offensive I find it that someone
    would put their hand up, swear to tell the truth, and then
    perjure themselves at the expense of someone they love.
    That is not something I walk away from.
                                                                  2


         "If I have remedies that I can punish I am likely to
    use them . . . .

         "I'm going to step it back for a minute because I'm
    going to find out what my remedies are. I may not wait for
    the district attorney's office to take action . . . and I'm
    talking incarceration. . . .

         "I want the Commonwealth -- actually I'm going to give
    everyone the weekend to think about this. I want the
    Commonwealth to find out what it perceives that my remedies
    are, and I'm going to do some research as to what I think
    my remedies are, but these aren't games we play."

    The defendant argues for the first time on appeal that the

judge's words created an appearance of partiality requiring sua

sponte recusal because an outside observer might have thought

the judge was attempting to get the witness not to recant in

order to, as the defendant puts it, "protect the result of the

trial over which he had presided."

    Although I agree with the majority that the defendant has

not met her burden of demonstrating even an appearance of

partiality, I reach that conclusion by a somewhat different

route.   I agree with the majority that a judge may, in the

judge's discretion, warn a witness when the judge perceives a

risk of self-incrimination.   See Taylor v. Commonwealth, 369

Mass. 183, 192 (1975).   Indeed, it has been said to be "a

'commendable practice.'"   Ibid., quoting from Commonwealth v.

Slaney, 345 Mass. 135, 142 (1962).

    But the judge's initial words were not the ideal way to

warn this child that she might be exposing herself to
                                                                       3


prosecution by the Commonwealth for perjury.   This was a

statement indicating that if the child recanted her testimony,

the judge was likely sua sponte to order her incarcerated if he

was empowered to do so, coupled with a request that one of the

parties research what tools he himself had to order such

incarceration, and a statement that the witness should take the

weekend to think about whether she really wanted to recant.

    Judges, of course, as a matter of law may not simply jail

individuals for perjury.   The determination whether to bring a

prosecution for this crime is entrusted to the executive branch.

See Commonwealth v. Cheney, 440 Mass. 568, 574 (2003).      Nor may

perjury, standing alone, be punished as a criminal contempt.

See Miaskiewicz v. Commonwealth, 380 Mass. 153, 158 (1980).      Nor

have our appellate courts ever approved holding a juvenile in

criminal contempt for anything but violation of a valid court

order, see Doe v. Commonwealth, 396 Mass. 421, 423 (1985), let

alone incarcerating them as adults, see ibid. (reserving the

question of the propriety of such incarceration).

    More measured language of warning thus would have been

better suited to this situation.   This was, after all, a

recantation by a child, one found by a jury to be a victim of

domestic violence.   Her testimony led to her mother's conviction

and to the child's own inability to have any contact with her

mother.   Although the judge's surprise, concern, and skepticism
                                                                    4


certainly were understandable, more measured language would have

been best.

    Nor can the majority be correct that the mere fact that the

child decided to go ahead and testify at the motion for a new

trial despite the judge's remarks necessarily means there can

have been no prejudice.   See ante at   .1   If the judge's

statement revealed, as the defendant now claims, a desire to

preserve the verdict notwithstanding the evidence -- and I

emphasize that, as I spell out below, the judge's remarks do not

indicate any such desire -- the child's decision to testify

would not cure the error.

    I therefore would not approve as appropriate words of

warning the quoted portion of the judge's remarks.   Nonetheless,

as I said at the outset, I agree with the court majority that

the defendant has not met her burden even to show error here,

let alone a substantial risk of a miscarriage of justice.

    As the court majority rightly notes, the record before us,

read as a whole, shows not only that there was an absence of any

objection or motion below based on the judge's words, itself a

telling silence, but that at the end of the hearing the judge

said, "I'm not trying to put a chill on anybody's testimony, but

    1
       Nor could the fact that defense counsel used the
circumstances the only way she could –- to argue that the
child's perseverance demonstrated credibility –- undo any
partiality or appearance of partiality on the part of the judge.
See ante at note 7.
                                                                   5


I just want everyone to understand how seriously I take this,"

to which the child's counsel responded, "I understand, Judge.

I'll talk to my client."

    This evidence that the judge was attentive to the concern

the defendant now expresses in her appeal, that he appropriately

addressed it, and that his assurances were accepted by counsel

for both the defendant and the child, who were present in the

court room, and who were in a position to evaluate the judge's

demeanor and the tenor of his remarks.    The evidence in the

record before us, read in context and as a whole, is thus

inadequate to support the defendant's claim that the judge's

remarks created even an appearance of partiality -- regardless

of any problematic aspects of some of the judge's initial

remarks.    I therefore agree that the judgment should be

affirmed.    And I concur in the judgment of the court.2




    2
       Although there is at least some strength to the
defendant's ineffective assistance of counsel claim, I agree
with the majority that ineffective assistance has not been shown
indisputably on this record, and that the issue should be raised
if at all in the first instance in a motion for a new trial. I
would not go further, as the majority does, and opine on the
propriety of calling Detective Moynihan as a defense witness.
