MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted after a jury trial of assault and battery, violation of a G. L. c. 209A restraining order (209A order), and malicious destruction of property, the defendant appeals. Without having filed a motion for new trial, he argues for the first time on appeal that his trial lawyer provided constitutionally ineffective assistance of counsel by failing to investigate the victims past untruthfulness, to more trenchantly cross-examine the victim and the four police witnesses, or to bring to the judges attention the “fact” that a juror was asleep during trial. We affirm.
Background. The defendant and the victim met online and had a brief dating relationship. On April 18, 2019, after an argument between them, the victim was driving the defendant to his sisters home. The defendants anger escalated, and he swore at the victim and accused her of infidelity. The defendant took the victims cell phone, which was worth nearly $1,000. The victim said that unless the defendant gave it back, she would drive to a police station. Upset, the defendant hit the victim on her face and head and pulled her hair while she was driving. Then he tossed her cell phone out of the car window and across the street. The victim stopped the car and retrieved her cell phone, which had a cracked screen.
After their relationship ended, the victim noticed that her passport and Social Security card were missing from her apartment. At some point the defendant telephoned her and said, “I have your stuff. Lets see what life you have after this. Im going to make sure I ruin your life.”
On April 26, 2019, the victim obtained a 209A order against the defendant. On July 10, 2019, a photograph of the victim was posted on a social media website, along with her name and the message, “I like to have fun. Nasty girl. Call me.” The posting included the victims telephone number, address, license plate number, and Social Security number.
Discussion. By not having filed a motion for new trial supported by affidavits, which may have given rise to an evidentiary hearing and findings of fact from the trial judge, “the defendant has failed to present us with a record that permits us intelligently to measure defense counsels performance under the standard of Commonwealth v. Saferian, 366 Mass. 89 (1974), and its progeny.” Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999). When a defendant raises a claim of ineffective assistance of counsel for the first time on direct appeal rather than in a motion for new trial, we would reverse the convictions only if counsels ineffectiveness were indisputably apparent from the trial record. See Commonwealth v. Powell, 459 Mass. 572, 583 (2011), cert. denied, 565 U.S. 1262 (2012).
The defendants current claim that trial counsel was ineffective for having failed to investigate the victims past “instances of untruthfulness” is precisely the sort of claim that is properly relegated to a new trial motion. See Commonwealth v. Zinser, 446 Mass. 807, 812 (2006). The defendants bald assertion that the victim “previously made false allegations” is apparently based on facts outside this record, and so we do not consider it. See Commonwealth v. Robinson, 83 Mass. App. Ct. 419, 427 (2013).
As to the defendants claim that trial counsel was ineffective in cross-examining the victim and four police witnesses, that claim also should have been raised in the first instance before the trial judge. We note that the transcript reflects that trial counsel succinctly cross-examined the victim, eliciting her inability to remember specific details or dates of many events. Contrary to the defendants argument on appeal, trial counsel did cross-examine the victim about how far the defendant had thrown her cell phone, and then argued in closing that if he had thrown it across the street, as the victim claimed, it would have been “smashed,” and not merely cracked. Trial counsel strenuously argued in closing that the victim was not credible because she did not remember certain details. We also take note that the jury acquitted the defendant of three charges of violation of the 209A order and two charges of threats, which at least facially suggests that counsels cross-examinations in fact were effective. Thus it is not indisputably apparent from the record that any different tactic on cross-examination of the victim or the four police witnesses might have accomplished something material for the defendant. See Commonwealth v. Leng, 463 Mass. 779, 784 (2012).
Finally, the defendant asserts for the first time on appeal that “a juror was sleeping during the trial,” but admits that “there is nothing on the record” to support that claim. When a judge observes that a juror is asleep, or receives “reliable information to that effect,” the judge is obliged to conduct “a sensitive voir dire” to determine whether the juror remains capable of fulfilling his or her obligation as a juror to render a verdict based on all of the evidence. Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). Here, the judge received no such reliable information, either at trial or in any motion for new trial, and so had no occasion to investigate the matter. Again, without establishing these facts through a motion for new trial, the defendant has not shown that any juror was sleeping, nor that his trial counsel was ineffective for not raising the claim. See Commonwealth v. Vaughn, 471 Mass. 398, 412-413 (2015).
Judgments affirmed.