MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Angelino Mendez, appeals after a District Court jury trial from a conviction for violating an abuse prevention order, G. L. c. 209A, § 7. Concluding that the trial record fails to show that counsel was ineffective in not objecting to the trial judges instruction on other bad acts, we affirm.
To prevail on a claim of ineffective assistance of counsel, “the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “Here, the claim is presented in its ‘weakest form,’ as it is asserted for the first time on direct appeal, which our case law disfavors.” Commonwealth v. Pereira, 100 Mass. App. Ct. 411, 421 (2021), quoting Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). Under these circumstances, “we must decide whether ‘the factual basis of the claim[s] appear[ ] indisputably on the trial record.” Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 824 (2019), quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
The defendant argues that trial counsel was ineffective because he “did not request a limiting instruction” on the use of other bad act evidence, specifically Instruction 3.760 of the Criminal Model Jury Instructions for Use in the District Court (2009). In fact, counsel requested that jury instruction, and the judge agreed to give it.
During the jury charge, however, the judge gave only the first two sentences of the model instruction. Rather than completing the model instruction, she instead told the jury that she had struck any reference to “other acts allegedly done by the Defendant.”
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She told the jury “to disregard it entirely” and “not to consider that reference to other alleged acts at all.” Counsel did not object to these instructions.
These instructions, rather than merely telling the jury that the other bad act evidence was admitted for a limited purpose (as the requested model instruction would have done), told the jury not to consider that evidence at all. Whether this was better or worse in the context of this case may be debatable on these facts, but the trial record provides no basis to find that counsels failure to object was not a strategic decision to accept an instruction she considered more favorable to the defendant than the model instruction. Such a decision would not have been “manifestly unreasonable.” Commonwealth v. Waller, 486 Mass. 72, 76 (2020), quoting Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015). Moreover, because the judge instructed the jury to disregard “other alleged acts” entirely, the absence of the model instruction did not deprive the defendant of a substantial ground of defense. Accordingly, we discern no ineffective assistance of counsel.
Judgment affirmed.
FOOTNOTES
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. The judge may have had in mind defense counsels line of questioning on recross-examination, which elicited the information that the victim had testified against the defendant in two previous trials and asked whether those trials had resulted in acquittals. The judge sustained the prosecutors objection to these questions, but did not strike any testimony.