MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Somniuk Tippawong, appeals from his conviction for indecent assault and battery on a child under fourteen and from the denial of his motion for a new trial following that conviction. We affirm.
Discussion. 1. Limitation of cross-examination. The defendant challenges the judges decision to foreclose cross-examination on a particular topic. “We review the judges decision to limit the defendants cross-examination for an abuse of discretion.” Commonwealth v. Chicas, 481 Mass. 316, 319 (2019), citing Commonwealth v. McGhee, 472 Mass. 405, 426 (2015). “[A] judge has discretion to limit questions that involve collateral issues and questions where the connection to the evidence of bias is too speculative.” Chicas, supra at 320. As above, an abuse of discretion occurs only where there is “a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
At trial, the victims friend testified that one of her familys dogs died after being hit by a car driven by “[a] neighbor,” prompting the judge to inquire sua sponte as to the relevance of this testimony. The defense represented that the defendant was the only neighbor identified at trial and the cross-examination was for the purpose of showing bias and motive to fabricate the accusation of sexual assault. The judge ruled the evidence was not relevant, as the defendant was not involved in killing the dog. Neither party contended that the defendant was in the car that struck the dog. The witness did not identify the defendant as that neighbor who killed the dog and the jury heard that the victims home was located next to an apartment complex. The judges decision to limit cross-examination on this issue was not an abuse of discretion.
2. Ineffective assistance of counsel. The defendant also appeals from the denial of his motion for a new trial, claiming that his trial counsel was constitutionally ineffective for failing to pursue an insanity defense. We analyze this claim under the familiar Saferian standard, considering:
“whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.”
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “[T]he judges disposition of the motion will not be reversed unless it is manifestly unjust ․ [and] [r]eversal for abuse of discretion is particularly rare where the judge acting on the motion was also the trial judge.” Commonwealth v. Walker, 443 Mass. 213, 225 (2005). An abuse of discretion occurs where “the judge made a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation omitted). L.L., 470 Mass. at 185 n.27. The defendant bears the burden of proving the Saferian standard has been met. See Commonwealth v. Comita, 441 Mass. 86, 90 (2004).
In support of his motion, the defendant asserts that his counsel failed to view documentation about the defendants G. L. c. 276, § 58A, dangerousness hearing that was available to her in the trial courts file. During that hearing, it was revealed that the defendant was hospitalized for mental health concerns approximately a year prior to the incident for which he was convicted.
Although it may have been prudent for trial counsel to view the trial courts file, rather than only reviewing the contents of the District Attorneys file,
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we decline to say that every attorney has an obligation to view the courts file or that a failure to do so renders assistance per se ineffective. The motion judge found that the defendant and his family repeatedly represented to trial counsel that the defendant did not have mental health concerns. See Walker, 443 Mass. at 225-226. The judge found that “failure to discover that there was an existence of a potential insanity defense does not equate to counsels failure to investigate.” The motion judge also found that defense counsel chose to defend on the grounds that the defendant was innocent by pursuing two different theories: first, by seeking to show that the complainant was biased against the defendant and, second, by attempting to show an inconsistency about the location of the defendants cell phone. Thus it was not an abuse of discretion for the motion judge to conclude that trial counsel was not ineffective; as the judge aptly noted, the mere fact that these attempted defenses were unsuccessful does not warrant the conclusion that they were unreasonable. See Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015).
The defendant also submitted an affidavit claiming that he would have been willing to use an insanity defense if counsel had suggested such a defense. However, the motion judge did not credit this assertion, instead finding that his prior counsel had requested funds for a mental health evaluation and appeared to be pursuing that defense and that defendant filed a motion to replace that counsel due, in part, to a conflict in strategy. The judge did not abuse his discretion in failing to credit the defendants affidavit. See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016), quoting Commonwealth v. Colon, 439 Mass. 519, 530 (2003). Accord Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 178 (2018).
3. The affidavit from previous counsel. In conjunction with the defendants motion for a new trial, he asserts that it was an abuse of discretion for the judge to deny his motion to preclude the Commonwealth from introducing into evidence an affidavit from the defendants prior counsel and to destroy this affidavit.
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The defendant concedes that the affidavit in question was not introduced in evidence and that the judge did not see or consider it in deciding the motion for a new trial. The defendant claims that allowing this affidavit to continue to exist may violate his attorney-client privilege if the affidavit is used in a future proceeding. Speculation provides no basis for relief, see Commonwealth v. Laguer, 410 Mass. 89, 94 (1991) (rejecting claims that are “predicated on facts that have not been established or are grounded on mere speculation with regard to likely prejudice”), nor do we conclude that the judge abused his discretion in denying the motion. Should the issue arise in the future, it can be assessed at that time based on all of the facts.
Judgment affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. The motion judge found that the defense attorney did, in fact, obtain everything in the prosecutors file.
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. The affidavit is not in the record before us.