MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Juvenile Court, the defendant was convicted of assault with intent to murder and assault and battery by means of a dangerous weapon.
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Approximately two years later, the defendant filed a motion for new trial, without supporting affidavits.
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After a nonevidentiary hearing, the motion was denied. The defendant subsequently filed a motion for reconsideration that was denied. On appeal, the defendant claims that his trial counsel was ineffective. We affirm.
Background. The jury could have found the following facts. On January 4, 2015, at approximately midnight, S.T. walked to a store to buy cigarettes. When she arrived, the store was closed. As she walked on North Main Street in Brockton, S.T. noticed the defendant walking behind her. She stopped to allow him to pass. S.T. next saw the defendant standing by the side of a building crying. She asked him what he was doing, and the defendant said that he was upset because he had an argument with his mother.
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The defendant said that he was walking to a relatives home on Lansdowne Street.
The defendant and S.T. walked together. As they approached Lansdowne Street, the defendant “propositioned” S.T. for sex in exchange for money. S.T. said no, and told the defendant that that he was too young, and that he could find a girl his age. The defendant laughed and became quiet. The defendant then grabbed S.T. from behind by her neck and tried to unbutton her pants. He told S.T. that she “shouldve took the money and he wouldnt have to take ․ [her] pussy.” The defendant tried to take S.Ts shirt off and grab her breasts. He also hit S.T. on the side of her forehead. S.T. elbowed the defendant and freed herself. As S.T. turned to run away, the defendant stabbed her in the back five times, three times on the right side and twice on the left side, before fleeing. Two people heard S.T. scream, and called 911. S.T. gave the police a physical description of the defendant, whom she later identified in a photographic array. S.T. was transported to Brockton Hospital where she underwent surgery.
Discussion. The defendant contends that the judge abused her discretion by denying his motion for a new trial without an evidentiary hearing. “Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell 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. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974).
Because the motion judge was also the trial judge for both trials, we give “special deference” to her views of trial counsels performance. Commonwealth v. Barnett, 482 Mass. 632, 638 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See Commonwealth v. Sin, 100 Mass. App. Ct. 172, 177 (2021). Strategic decisions by counsel are not ineffective assistance unless they were “manifestly unreasonable when made” (quotation omitted). Id. at 178. A judge may decide a motion for a new trial without an evidentiary hearing “if no substantial issue is raised by the motion or affidavits.” Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011). Rule 30 (c) (3) “encourages the denial of a motion for a new trial on the papers, without hearing, where no substantial issue is raised.” Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). “ ‘Although the motions and supporting materials filed by a defendant need not prove the issue raised therein, they must at least contain sufficient credible information to cast doubt on the issue’ in order to create a substantial issue.” Commonwealth v. Barry, 481 Mass. 388, 401 (2019), quoting Commonwealth v. Denis, 442 Mass. 617, 629 (2004).
Specifically, the defendant argues that trial counsel was ineffective for (1) failing to challenge a juror; (2) failing to exclude references to the defendants sexual conduct; (3) failing to impeach S.T.; (4) failing to call a witness; (5) acquiescing to the impeachment of a witness; and (6) failing to effectively argue the evidence during closing arguments.
For the reasons that follow, we conclude that the defendant failed to make an adequate showing of an act or omission of trial counsel that amounted to the ineffective assistance of counsel. See Commonwealth v. Britto, 433 Mass. 596, 608 (2001). See also Mass. R. Civ. P. 30 (c) (3).
a. Failure to challenge juror. During empanelment, juror no. 8, whose brother was a police officer, answered, “Yes,” when asked whether he would be more inclined to believe a police officer based on the officers profession. The judge asked follow-up questions during which juror no. 8 said that if instructed by the judge to assess the credibility of all witnesses the same, regardless of employment, he could do so. Neither party objected, and the juror was seated.
“Whether to exercise a peremptory challenge of a particular juror is a question of strategy addressed to the judgment of the defendant and his counsel.” Commonwealth v. Torres, 71 Mass. App. Ct. 723, 726 (2008). Juror no. 8s responses to the judges questions demonstrated the jurors unequivocal belief that he could be fair and impartial.
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See Commonwealth v. Colton, 477 Mass. 1, 17 (2017) (no error in empaneling juror where, “Yes, I think so,” in response to judges question “fairly could be viewed as unequivocal”); Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 308, 309 (2000) (counsel not ineffective for failing to challenge seating of police officer who indicated he could impartially weigh testimony of police officers). The defendant failed to show any prejudice from trial counsels decision to forego a peremptory challenge.
b. Testimony about sexual conduct. The defendant contends that the doctrine of collateral estoppel and principles of double jeopardy precluded the prosecutor from presenting evidence of the sexual conduct related to the charge on which he had been acquitted in the first trial. He argues that trial counsel was ineffective for failing to exclude this evidence.
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First, each of the three indictments required proof of a fact that the others did not. See Commonwealth v. Brule, 98 Mass. App. Ct. 89, 93 (2020) (“A defendant may be punished for two crimes arising out of the same conduct so long as each crime requires proof of an element that the other does not”). Second, the doctrine of collateral estoppel did not prevent introduction of this evidence.
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The prosecutor did not introduce this evidence to argue that the defendant committed the crime of assault with intent to rape. See Commonwealth v. Adams, 485 Mass. 663, 674-677 (2020). Rather, the evidence was properly presented to present “as full a picture as possible of the events surrounding the incident.” Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982). See also Commonwealth v. Longo, 402 Mass. 482, 489 (1988) (“The Commonwealth is entitled to ‘show the whole transaction of which the crime was a part’ ” [citation omitted]). Indeed, the evidence supported the Commonwealths theory that the defendants frustration over S.T.’s refusal of his proposition served as the motive for the stabbing. See Adams, 485 Mass. at 676-677. The prior jurys acquittal of the defendant did not necessarily determine that the defendant had not engaged in sexually motivated conduct during the incident in question.
Finally, even if its admission were error, this evidence did not create a substantial risk of a miscarriage of justice where the primary issue at trial was identification. As such, the absence of a motion to exclude this evidence was not ineffective assistance of counsel where it had a minimal chance of success, and the defendant used this evidence to attack the victims credibility. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
c. Impeachment of S.T. Next, the defendant argues that trial counsel was ineffective for failing to impeach S.T. with her prior out-of-State convictions, and criminal charges that were pending at the time of trial.
Pursuant to G. L. c. 233, § 21, witnesses may be impeached with prior convictions, subject to strict timing limitations -- five years for a misdemeanor and ten years for a felony. See G. L. c. 233, § 21. If these limitations apply, the judge has no authority or discretion to admit the evidence. See Commonwealth v. Childs, 23 Mass. App. Ct. 33, 35-36 (1986) (judge erred in permitting impeachment of defendants credibility with convictions that were time-barred under G. L. c. 233, § 21).
In 2003, S.T. was convicted in Virginia of theft, drug, and firearm offenses. She was sentenced to “split” and suspended sentences, and placed on supervised probation for five years upon her release from custody.
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S.T.’s suspended sentences fall under the second paragraph of § 21 and were inadmissible after January 2013. See G. L. c. 233, § 21, Second. In Massachusetts, “a so-called split sentence” “may no longer be given.”
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Commonwealth v. Luckern, 87 Mass. App. Ct. 269, 270, 270 n.1 (2015). Because these are another form of a suspended sentence, these convictions fall under the second paragraph as that category includes felony convictions upon which sentences are imposed but execution thereof is suspended. See G. L. c. 279, §§ 1, 1A; G. L. c. 233, § 21, Second. And because Massachusetts has not allowed a State prison sentence to be split or suspended in more than thirty years, see Luckern, supra, S.T.’s convictions could not come within the provisions of G. L. c. 233, § 21, Third. Contrast Commonwealth v. Rondoni, 333 Mass. 384, 386 (1955). Because January 28, 2003, was the last date on which S.T.’s split and suspended sentences were imposed, we conclude that she “had no criminal conviction within either five or ten years of the time [she] testified in the present case ․ that might have revived the [2003] convictions to make them admissible for impeachment purposes.” Commonwealth v. Gladney, 34 Mass. App. Ct. 151, 154-155 (1993).
As to her pending criminal charges, the defendant did not proffer any evidence that S.T. provided testimony favorable to the Commonwealth in the hope of receiving a more lenient disposition on her then pending criminal charges. In fact, an attempt to impeach S.T. with her pending charges could have undermined the defense, as the Commonwealth recommended S.T.’s incarceration in State prison on those charges before the defendants trial. See Commonwealth v. Rice, 441 Mass. 291, 306 (2004) (no ineffective assistance where proposed cross-examination would have undermined defense strategy at trial).
Moreover, even if the prior convictions and pending charges were admissible for impeachment purposes, “[w]e have applied a stringent standard of review to claims of ineffective assistance because of failure to impeach a witness.” Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). As a general rule, “[f]ailure to impeach a witness does not, standing alone, amount to ineffective assistance.” Id. More importantly, “failing to impeach a witness in a particular way does not constitute ineffective assistance.” Commonwealth v. Gonsalves, 488 Mass. 827, 838 (2022), quoting Commonwealth v. Watt, 484 Mass. 742, 763 (2020).
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d. Failure to call a witness. Both Dennis Franklin and Vincent Jette were on Lansdowne Street on the night of the attack. Both were called as witnesses by the defendant and testified at the first trial. Franklin testified at the second trial; Jette did not. The defendant contends this constituted ineffective assistance of counsel.
Generally, “[t]he decision ‘[w]hether to call a witness is a strategic decision’ ” (citation omitted). Commonwealth v. Jacobs, 488 Mass. 597, 603 (2021). “[I]neffective assistance of counsel is not established merely by showing that the defendants counsel did not call additional witnesses.” Commonwealth v. Ortega, 441 Mass. 170, 178 (2004). In these circumstances, “we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful.” Commonwealth v. Lessieur, 488 Mass. 620, 631 (2021), quoting Commonwealth v. Valentin, 470 Mass. 186, 190 (2014). “Thus, such decisions amount to ineffective assistance of counsel only if they were manifestly unreasonable when made” (quotations and citation omitted). Lessieur, supra. Here the defendant has not provided an affidavit from trial counsel,
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nor Jette. Accordingly, “the defendant has failed to show that the testimony would have contributed materially to the defense or that counsels failure to call [Jette] was manifestly unreasonable.”
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Britto, 433 Mass. at 603. See Commonwealth v. Collins, 36 Mass. App. Ct. 25, 30 (1994) (without affidavits from prospective witnesses, judge unable to determine “whether their testimony would likely have made a material difference”). Moreover, that trial counsel referenced Jette in his opening statement but did not call him as a witness is of no moment where decisions regarding opening statements are generally strategic in nature, the Commonwealth did not comment on Jettes absence in closing, and the jury were properly instructed that opening statements are not evidence.
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See Commonwealth v. McMahon, 443 Mass. 409, 425 (2005) (“The decision whether to make an opening statement, and, if so, what details to include in that statement, are purely strategic, and the strategic benefit of announcing specific anticipated testimony in the opening statement may outweigh the risk that the testimony will not be available. ‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable’ ” [citation omitted]).
e. Acquiescing in impeachment of witness. The defendant contends that trial counsel was ineffective in failing to object to the prosecutors cross-examination of Franklin. He contends that Franklin was improperly impeached because the prosecutor questioned Franklin about prior statements, and impeached him with his prior criminal convictions. Because the defendant did not object to this line of questioning, we review to determine whether, if error, it created a substantial risk of a miscarriage of justice. See Commonwealth v. McGann, 484 Mass. 312, 322 (2020).
On cross-examination, Franklin denied speaking to a defense investigator and also said that he could not remember if he had done so. Franklin refused to have his memory refreshed (apparently with the investigators notes), claiming he did not have his eyeglasses with him. “It is well established that a witness may be asked to explain inconsistencies between prior and present statements.” Commonwealth v. Dickinson, 394 Mass. 702, 706 (1985). “When used for impeachment purposes, prior inconsistent statements are not offered for the truth of the matter therein asserted, and, therefore, they are not hearsay.” Commonwealth v. Donnelly, 33 Mass. App. Ct. 189, 197 (1992). “To be used for impeachment, it is not necessary that the witnesss prior statement be a complete, categorical, or explicit contradiction of his trial testimony” (quotation and citation omitted). Commonwealth v. Parent, 465 Mass. 395, 400 (2013). A “prior statement is considered inconsistent ‘if its implications tend in a different direction.’ ” Commonwealth v. Condon, 99 Mass. App. Ct. 27, 35 (2020), quoting Commonwealth v. Pickles, 364 Mass. 395, 402 (1973). Admittedly, “it is sometimes difficult to draw a precise line between what is proper and improper in impeaching a witness with prior inconsistent statements.” Dickinson, supra. However, “[i]t is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict” (citation omitted and emphasis added). Parent, supra.
Because Franklin testified that he did not speak to the investigator at all, the prosecutor was permitted to impeach him with statements that he had made to the investigator.
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Cf. Parent, 465 Mass. at 400-402. That the prosecutor included some additional language from the report was not error given that it provided necessary context to Franklins inconsistent statement. See Commonwealth v. Barnett, 482 Mass. 632, 638 (2019) (accusatory text message to defendant properly admitted to provide necessary context to defendants admissible statements).
The defendants argument that Franklin was improperly impeached with his prior convictions also fails. Franklins prior drug distribution convictions under G. L. c. 94C, § 32A (c), and G. L. c. 94C, § 32J, meet the statutory definition of a felony and thus were admissible for impeachment purposes. See Commonwealth v. Hill, 57 Mass. App. Ct. 240, 248 (2003). See also G. L. c. 274, § 1, and Mass. G. Evid. § 609 (2022). We agree, however, that evidence of Franklins 2009 conviction of possession of a class D substance with intent to distribute was admitted in error. Nevertheless, it did not create a substantial risk of a miscarriage of justice, as the evidence was brief and isolated in the context of a three-day trial, the prosecutor did not mention it in closing argument, and the judge properly instructed the jury on the permissible and impermissible uses of prior convictions. See Commonwealth v. Delong, 72 Mass. App. Ct. 42, 45 (2008) (no substantial risk of miscarriage of justice where “[t]he challenged testimony consisted of three fleeting references made over the course of a four-day trial in which there was substantial evidence of guilt”). Moreover, the properly admitted prior convictions involved more serious drug distribution offenses, including distribution of cocaine in a school zone.
f. Closing argument. Lastly the defendant contends that trial counsel was ineffective because he failed “to marshal the evidence in a defense-friendly manner” in closing argument and did not reference S.T.’s urine drug screen taken after the attack.
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“While ‘[w]ith hindsight, one can always craft a more eloquent and forceful closing argument,’ trial counsel covered all the necessary points.” Commonwealth v. Gulla, 476 Mass. 743, 747 (2017), quoting Commonwealth v. Denis, 442 Mass. 617, 627 (2004). In fact, he specifically argued that S.T. was inconsistent in her testimony and not credible, due in part to her history of substance use. Merely “[s]uggesting ways in which counsels closing argument might have been stronger does not make out a claim of ineffective assistance” (citation omitted). Id.
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.
FOOTNOTES
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. The case was first tried in June 2016. At that time, the defendant was acquitted on a charge of assault with intent to rape. The jury were unable to reach a unanimous verdict on the remaining charges, and a mistrial was declared.
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. The motion was accompanied by a memorandum of law, transcripts from the second trial, and an addendum of materials.
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. The defendant also told S.T. that he came from the East Side projects, had recently been released from the custody of the Department of Youth Services, and was having difficulty adjusting to living with his mother again. He also said that he was sixteen years old.
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. We also note that most of the police evidence was information provided by S.T. and other civilian witnesses, all of which the jurors could independently assess.
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. The defendants reliance on Commonwealth v. Dorazio, 472 Mass. 535 (2015), is misplaced. There, a young girl testified that the defendant had assaulted her, in an unrelated incident, during the same general time period, “to demonstrate absence of accident or mistake, notwithstanding that the defendant had been acquitted at a prior trial of assaulting [the young girl].” Commonwealth v. Adams, 485 Mass. 663, 675 (2020), citing Dorazio, supra at 538 n.7. In reversing the conviction, the Court “conclude[d] that the collateral estoppel protections necessarily embraced by art. 12 [of the Massachusetts Declaration of Rights] warrant[ed] the exclusion of the acquittal evidence in the circumstances of [that particular] case, a subsequent criminal proceeding involving alleged unlawful sexual conduct with minors.” Dorazio, supra at 547. The facts here are entirely distinguishable as the defendant did not commit two separate assaults. Rather, his acts of grabbing S.T. by the neck, attempting to unbutton her pants, attempting to grab her breasts, and stabbing her were intertwined acts constituting a continuous course of conduct.
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. The doctrine of collateral estoppel provides that “[a] defendant cannot be tried by the same sovereign for an offense the conviction of which would require the readjudication of a factual issue which previously has been determined in his or her favor․ [C]ollateral estoppel requires the concurrence of three circumstances: (1) a common factual issue; (2) a prior determination of that issue in litigation between the same parties; and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar.” Conkey v. Commonwealth, 452 Mass. 1022, 1023 (2008), quoting Commonwealth v. Lopez, 383 Mass. 497, 499 (1981).
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. The defendants utilization of time that S.T. served for violating her probation in calculating time served for purposes of G. L. c. 233, § 21, is improper as “[a] record of conviction upon which a suspended sentence was imposed may properly be used for the purpose of impeachment,” however “subsequent surrender proceedings are not relevant to the question raised by” G. L. c. 233, § 21. Commonwealth v. Brown, 2 Mass. App. Ct. 76, 82 (1974).
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. Since the adoption of “truth in sentencing,” see G. L. c. 127, § 133, as appearing in St. 1993, c. 432, § 11, a so-called split sentence, where one is sentenced to State prison with some time to be served and the remainder suspended, can no longer be given in Massachusetts. See Commonwealth v. Luckern, 87 Mass. App. Ct. 269, 270, 270 n.1 (2015).
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. On cross-examination, trial counsel sought to discredit S.T. by eliciting testimony about her past substance use, the impact of substance use on her perception, and highlighting inconsistencies between her trial testimony, her grand jury testimony, and video evidence presented at the trial.
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. “When weighing the adequacy of the materials submitted in support of a motion for a new trial, the judge may take into account the suspicious failure to provide pertinent information from an expected and available source.” Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004). Courts regularly reject ineffective assistance claims where they are unaccompanied by an affidavit from counsel to explain counsels thought process regarding the assertedly deficient performance. See, e.g., Commonwealth v. Lynch, 439 Mass. 532, 539 n.2, cert. denied, 540 U.S. 1059 (2003), and cases cited.
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. Even without affidavits, as the motion judge noted, much of Jettes testimony would have been cumulative of other evidence, see Commonwealth v. Jacobs, 488 Mass. 597, 602 (2021) (“defense counsels decision not to introduce cumulative testimony does not rise to the level of ineffective assistance”), and to the extent that it was not, there were contradictions in Franklins and Jettes accounts of what transpired such that testimony from both could have undermined their credibility. See Commonwealth v. Montez, 450 Mass. 736, 754-756 (2008) (no ineffective assistance of counsel where motion judge determined three potential witnesses “would have undermined defense counsels theory” of the case if called to testify).
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. In his opening statement, trial counsel said that Jette would testify that S.T. was under the influence of drugs or alcohol.
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. The defendants argument that the prosecutor erred in referencing a conversation between herself and Franklin misses the mark. A review of the entire cross-examination demonstrates that it was Franklin who first indicated he had spoken to the prosecutor as part of his denial that he had spoken to the defense investigator. It is apparent that the prosecutors brief additional references to the conversation to which Franklin alluded, were permissible attempts to impeach Franklins assertion he had never spoken to the investigator. See Commonwealth v. Johnson, 412 Mass. 318, 326 (1992) (“[t]here is nothing improper in interviewing a witness before trial, or, subject to the judges discretion, in cross-examining a witness concerning discrepancies between his in-court and out-of-court statements”). Moreover, contrary to the defendants assertion, where the references were fleeting and only occurred briefly during the cross-examination, the prosecutor did not come close to injecting her personal knowledge and credibility into the case. Cf. Johnson, supra at 326-327.
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. The drug screen was positive for the presence of opiates but warned that “[a] more specific alternative method must be used to obtain a confirmed analytical result.”