MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this consolidated appeal from her conviction of assault and battery with a dangerous weapon and the order denying her motion for a new trial, the defendant claims error in the denial of her motion based on ineffective assistance of counsel.
1
We affirm.
Standard of review. We review a judges denial of a motion for a new trial for abuse of discretion or other error of law. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Further, “[w]e afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge.” Commonwealth v. Martin, 467 Mass. 291, 316 (2014). To establish a claim of ineffective assistance of counsel, a defendant must show both that trial counsels performance fell “measurably below that which might be expected from an ordinary fallible lawyer,” and that prejudice resulted from the inadequacy. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A strategic or tactical decision by defense counsel will not be considered ineffective assistance unless it was “manifestly unreasonable when made” (citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
The defendant asserts three bases on which her claim of ineffective assistance of counsel rests, and argues that the judge abused his discretion in denying her motion for a new trial on each basis. We address each claim in turn.
1. Failure to object to conclusory language. The judge determined that trial counsels failure to object to several witnesses use of the term “assault” while testifying was a strategic decision “made to elicit information about the order of what happened” and to impeach the victim with inconsistencies between her accounts of the incident before and at trial. Trial counsel thoroughly cross-examined the victim regarding accounts of the incident she gave to various parties leading up to trial, at one point even asking the victim to read aloud a portion of her medical record which contained the word “assault.” It was not an abuse of discretion for the judge to determine that trial counsel made a strategic decision which was not manifestly unreasonable. See Acevedo, 446 Mass. at 442. The judge also observed that the witnesses uses of the word “assault” at trial were better characterized and likely understood by the jury as vernacular speech rather than legal conclusions. He nonetheless instructed the jury on at least one occasion during trial, and again during formal jury instructions, that it was for the jury alone to determine whether an “assault” had occurred. The judge appropriately concluded that such an instruction was sufficient to cure any prejudice which might have resulted from trial counsels failure to object to the use of the word “assault.” See Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 805 (2008) (“[j]uries are presumed to follow the instructions given them” [citation omitted]).
2. Failure to object to leading questions. Similarly, the judge properly found that trial counsels failure to object to leading questions did not constitute ineffective assistance of counsel. See Commonwealth v. Sylvester, 35 Mass. App. Ct. 906, 907 (1993) (“Failing to make an objection based on the form of a question is not generally the stuff of ineffective assistance of counsel”). The judge noted that any leading by the prosecution while showing the victim and jury the surveillance video footage of the incident was not overwhelming, and further stated that he did not “find that this was the type of information that would have called for an objection, because it was, quite frankly, pointing out what had already been testified to.” The surveillance video footage established the essential facts of the case -- including, importantly, that the victim “started it ․ in terms of any physical contact.” The key issue for the jury to decide was whether the defendants response constituted valid self-defense, which required the jury to evaluate the respective credibility of the victim and defendant. Trial counsel thoroughly litigated the credibility issue. The judges conclusion that the availability of the video vitiated any potential prejudice arising from the prosecutions use of leading questions was not an abuse of discretion.
3. Failure to redact medical records. The judge found that references in the victims medical reports to the defendant being “in prison” should have been redacted. However, this error did not warrant a new trial, in part because the jury were already aware that the defendant had been charged with a crime following the incident. Furthermore, the judge found that the totality of other evidence supporting the defendants conviction, including the surveillance video footage depicting the entire encounter, diluted any prejudicial impact the reference to the defendants incarceration might have had on the jury. Cf. Commonwealth v. Baldwin, 24 Mass. App. Ct. 200, 202 (1987), overruled on other grounds, Commonwealth v. Pagan, 445 Mass. 161, 170 (2005) (defendant entitled to new trial based on admission of hospital records containing “diagnosis” of “sexual molestation” because victim was only witness to alleged acts, and physical facts recorded at hospital were equivocal). It was not an abuse of discretion to conclude that the jury properly understood that the reference to the defendants incarceration within the medical report did not bear on their ultimate determination of her guilt.
2
Judgment affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
1
. The defendant raises no other claims in her direct appeal.
2
. To the extent that the defendant presents a distinct claim of error in the motion judges denial of an evidentiary hearing, we discern no abuse of discretion. The motion judge was familiar with the essential issues of the case since he had presided over the trial, and he was in the best position to evaluate trial counsels performance. See Martin, 467 Mass. at 316. Trial counsels affidavit in support of the motion for a new trial, wherein she conceded that “[i]t would have been appropriate” to object to the witnesses use of the term “assault” or to certain leading questions, does not amount to an admission that her performance was ineffective, nor does it foreclose the possibility of finding that counsels failure to object was nonetheless strategic.