MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Romeo Thermidor, appeals from judgments of conviction on two indictments charging rape, G. L. c. 265, § 22, and two indictments charging assault and battery on a family or household member, G. L. c. 265, § 13M, claiming ineffective assistance of counsel. The defendant also challenges the trial judges denial of his motion for a stay of execution of his sentence. We affirm.
Discussion. 1. Ineffective assistance of counsel. The defendant raises his ineffective assistance claim for the first time in this appeal. This approach is strongly disfavored. See Commonwealth v. Medeiros, 456 Mass. 52, 61 (2010); Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Rather, it is well established “that the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Zinser, 446 Mass. at 810.
A “narrow exception” to the general rule permits “review of ineffective assistance claims in special cases where the contested issue concerning the attorneys performance is clear on the extant record.” Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 124 n.8, cert. denied, 540 U.S. 1009 (2003). Such a claim, based solely on the trial record, “is in its ‘weakest form’ because ‘it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.’ ” Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
The record in this case does not present clear proof of ineffective assistance. Many of the defendants claims concern trial counsels alleged failure “to conduct an independent investigation of the facts.” Commonwealth v. Baker, 440 Mass. 519, 529 (2003). Of course, the efforts that counsel made, or failed to make, in preparing for trial are not apparent on the record. For example, the defendant states that trial counsel failed to hire or consult an expert and a private investigator. However, counsel successfully moved for funds to obtain experts on bipolar disorder and autism and an investigator, and nothing in the record shows that he did not consult with either.
The defendant faults trial counsel for his admitted inexperience in defending against charges of indecent assault and battery on a person with an intellectual disability. However, the prosecutor also stated that he had “never seen this charge tried before,” and the discussion between both attorneys and the judge suggests that this charge was not often prosecuted. Moreover, trial counsels decision not to call an expert regarding the victims alleged intellectual disability was clearly a strategic decision motivated by the fact that the Commonwealth carried the burden of showing the victims intellectual disability. “Tactical decision-making by counsel will be considered ineffective if ‘manifestly unreasonable when made.’ ” Commonwealth v. Hampton, 88 Mass. App. Ct. 162, 166 (2015), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Far from being manifestly unreasonable, the decision was in fact advantageous, given that the judge ultimately entered a required finding of not guilty on this element of the offense.
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The defendant further criticizes trial counsels failure to obtain an “exculpatory medical record” that he contends was crucial to his defense. This medical record, however, is not part of the record on appeal. In his brief, the defendant offers to provide us with a copy of the medical record for our “in camera” review. We do not take evidence in appeals; it is for this very reason that a motion for a new trial is the preferred method for advancing ineffective assistance claims. See Commonwealth v. Laguer, 410 Mass. 89, 94 (1991) (rejecting claims “predicated on facts that have not been established or are grounded on mere speculation with regard to likely prejudice”).
We discern no merit in the defendants claims that trial counsel did not competently represent him and behaved in a manner that was cumulatively “incompetent, inefficient and inattentive.” Trial counsel filed motions and memoranda prior to trial, demonstrated familiarity with the facts of the defendants case, called and examined witnesses, cross-examined the Commonwealths witnesses, presented a theory of defense, actively participated in trial, and obtained acquittals on half of the indictments tried. Because trial counsels deficient performance does not appear indisputably on the record, the defendant has failed to prove his ineffective assistance claim.
2. Motion for a stay of execution of sentence. After the judge sentenced the defendant, trial counsel moved for a stay of execution of the sentence, arguing that the defendant had a meritorious claim of ineffective assistance. The defendant purports to appeal from the denial of that motion.
Following the denial of a motion for a stay in the trial court, a criminal defendant may seek a stay from a single justice of the court that will hear the appeal. See Christie v. Commonwealth, 484 Mass. 397, 400 (2020); Mass. R. A. P. 6 (b), as appearing in 481 Mass. 1608 (2019). However, there is no appeal from the trial judges denial of a stay. See Commonwealth v. Allen, 378 Mass. 489, 499 (1979) (“A denial of stay by the trial judge ․ is not subject to review, but a new application may be made to a Justice of the Appeals Court”). Even if we were to consider the defendants claim, we would discern no abuse of discretion in the judges denial of the stay. The defendant did not present a viable claim of ineffective assistance.
Judgments affirmed.
FOOTNOTES
2
. Indeed, the jury ultimately acquitted the defendant on the lesser included offense associated with this charge, as well as three other indictments.