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13-P-1248                                           Appeals Court

            COMMONWEALTH   vs.   PHILLIP A. DESPASQUALE.


               No. 13-P-1248.      December 30, 2014.


Kidnapping. Assault and Battery.     Larceny.   Practice, Criminal,
     Assistance of counsel.


     On direct appeal from his convictions of (1) kidnapping,
(2) assault and battery on a disabled person, (3) larceny over
$250, and (4) larceny of a motor vehicle, the defendant contends
that his trial counsel provided ineffective assistance of
counsel.1

     The preferred method to bring a claim for ineffective
assistance of counsel is by way of a motion for a new trial, as
it provides the opportunity for an evidentiary hearing and
findings related to the trial attorney's performance. See
Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999).
However, a claim of ineffective assistance may be resolved on
direct appeal when the factual basis of the claim appears
indisputably on the trial record. See Commonwealth v. Adamides,
37 Mass. App. Ct. 339, 344 (1994).

     We summarize the victim's trial testimony, which was
corroborated in nearly all material respects. The victim
testified that the defendant showed up at her house on January
26, 2011, and told her -- albeit untruthfully -- that her family
was in trouble; he said that they had five minutes to leave the
house. While driving her car, the defendant directed her to
withdraw as much money as she could from her bank account and to
write checks payable to him. She testified that when she asked
the defendant what the money was for, he did not reply. The

    1
        The defendant is represented by new counsel on appeal.
                                                                   2


victim also testified that she withdrew $500 from her bank
account, wrote and cashed two checks (totalling $600) on her
brother's account, and gave the money to the defendant. At
trial, the defendant did not deny receiving money from the
victim, but testified that the victim gave him the money to help
him pay for a room he was considering renting.

     We conclude that with regard to the claims argued here it
is possible on this record to evaluate the performance of the
defendant's trial counsel. In order to determine whether a new
trial should be granted based on ineffective assistance of trial
counsel, we apply the familiar Saferian test. See Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974). See also Commonwealth v.
Satterfield, 373 Mass. 109, 115 & n.10 (1977). Although certain
actions of trial counsel did not manifest the skills of a more
experienced practitioner, the defendant has failed to
demonstrate how the actions he claims his counsel should have
taken could have made a difference. See Commonwealth v. Medina,
20 Mass. App. Ct. 258, 259 (1985).

     Discussion. The defendant contends that trial counsel
provided ineffective assistance in (1) asking police Officer
Jeremy Grniet to read his report to the jury, aspects of which
contained extremely prejudicial information about the defendant;
(2) failing to object to portions of the testimony of the mother
of the complaining witness; (3) failing to realize the
significance or absence of any record of certain bank
transactions mentioned by the complaining witness; and (4)
failing to insist on appropriate redaction of the medical and
bank records introduced by the Commonwealth.

     1. We think that defense counsel's performance fell below
the standard set out in the first prong of Commonwealth v.
Saferian, supra, "falling measurably below that which might be
expected from an ordinary fallible lawyer."

     a. Police report. There appears to be no reasonable
strategy or tactic to justify trial counsel's failure, prior to
asking the officer to read the police report to the jury, to at
least redact the portion of the report referring to the
defendant's "lengthy criminal history." Likewise, there is no
rational reason for nor tactical advantage to be gained from
counsel's failure to request that that portion of the report be
stricken from the record or to request a limiting instruction.
Those failures in this context constitute behavior that falls
measurably below that of an ordinary fallible lawyer.
                                                                   3


     b. Mother's testimony. The mother made an unsolicited
reference to a rape kit examination of her daughter. The
defendant asserts that trial counsel's failure to object, move
to strike, or follow up on two portions of the victim's mother's
testimony amounts to ineffective assistance.

     The defendant was not on trial for rape. The mother's
testimony regarding her actions while in search for her daughter
was admissible, and trial counsel could have reasonably
concluded that any objection to it would have been futile.
Compare Commonwealth v. Dutra, 15 Mass. App. Ct. 542, 546-547,
550 (1983). With regard to the mother's reference to the rape
kit examination in the days immediately after the search, while
we recognize that implication of sexual misconduct has been seen
as prejudicial in some circumstances, Commonwealth v. Demars, 38
Mass. App. Ct. 596, 597-598 (1995), we acknowledge that trial
counsel's failure to object to the mother's testimony regarding
the rape kit or to press the mother further about the negative
result of the rape kit may well have been a tactical decision on
his part to avoid unnecessarily highlighting the comment. See
Commonwealth v. Adams, 374 Mass. 722, 730 (1978) (when made,
decision "did not appear to be beyond the range of
reasonableness"). See and compare Commonwealth v. Madera, 76
Mass. App. Ct. 154, 164 (2010). However, we do factor this into
the calculus of our evaluation of ineffectiveness.

     The defendant also contends that portions of the medical
record that referred to the rape kit should have been redacted.
An objection certainly would have been appropriate in this
circumstance. We note also, however, that the victim's medical
records, which were admitted in evidence, state that there was
"no knbown [sic] vaginal contact or obvious sexual contact
[and][n]o vaginal soreness." Trial counsel also elicited
testimony from Officer Grniet that the victim made affirmative
statements that the defendant had not molested her.

     c. Bank records. The defendant asserts as an additional
ground of ineffective assistance trial counsel's failure to move
to redact the portion of the victim's bank records showing
January 27, 2011, withdrawals and trial counsel's failure to
mention in his closing that the bank records offered in evidence
did not show the two checks that the complaining witness said
she had been induced to negotiate. Trial counsel's decision to
highlight in his closing the fact that the bank records merely
demonstrated that money had been withdrawn, rather than to
mention the missing evidence of the cashed checks, was
apparently made in an effort to further his claim that the money
                                                                   4


had been given to the defendant voluntarily. We find this
tactic questionable, though not fatal, standing alone.

     2. We now turn to the second prong of the Saferian test --
whether defense counsel's performance "has likely deprived the
defendant of an otherwise available, substantial ground of
defence." The Commonwealth's evidence consisted of several
witnesses and various inculpatory exhibits. The victim
testified that on January 26, 2011, the defendant took her to an
abandoned trailer where he tied her hands and feet and the
braces2 on her legs together and put a cloth around her nose and
mouth. She further testified that the defendant abandoned her
there, taking her car keys, wallet, bank card, and crutch; he
then told her that he would "be right back." The victim
testified that the defendant never came back and that the next
day, after freeing herself from the ties, she left the trailer3
in an effort to seek help, using a two-by-four as a crutch.4

     The Commonwealth also called Nathan Auger, who assisted the
victim on the day she escaped from the camper. Auger testified
that on January 27, 2011, while he was clearing his driveway of
snow, a girl, later identified as the victim, was at the end of
his driveway yelling, "Help, I need help; I was kidnapped." He
testified that the victim looked cold and scared and was crying
and shaking. He testified that the victim had snow stuck to the
bottom of her legs, was carrying a two-by-four, and said that
she had been tied up and put in a box, that she thought her
mother and father were in trouble, and that she wanted to call
her mother. Auger testified that he attempted to take the two-
by-four from the victim, but that she refused to give it up,
saying she needed it to walk. In addition to the victim's and
Auger's testimony, the Commonwealth entered exhibits in
evidence, depicting towels, sheets, and a white double-knotted
woman's shirt found in the camper.

     Notwithstanding trial counsel's deficient performance,
there has been no showing, in light of the overwhelming evidence
of guilt, "that better work might have accomplished something

    2
        The victim suffers from cerebral palsy and lumbardosis.
    3
        Sometimes referred to as a camper.
    4
       During cross-examination, the defendant conceded he had
left the victim, whom he knew to be disabled, alone in the cold
camper overnight (in the middle of a snowstorm) with no food,
light, heat, or running water.
                                                                  5


material for the defense." Commonwealth v. Satterfield, 373
Mass. at 115. Contrast Commonwealth v. Frisino, 21 Mass. App.
Ct. 551, 552, 555 (1986). In sum, even considering the totality
of defense counsel's missteps, lapses, and other decisions, we
conclude that the second prong of Saferian has not been
satisfied. See Commonwealth v. Satterfield, supra at 115 &
n.10. See also Strickland v. Washington, 466 U.S. 668, 691-692
(1984).

                                   Judgments affirmed.


     Katherine C. Essington for the defendant.
     Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
