Opinion
16-P-873
06-14-2017
COMMONWEALTH v. Doug BERGERON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Doug Bergeron, was convicted by a jury of assault and battery on a public employee during the performance of his duty. The defendant moved for a new trial, claiming ineffective assistance of counsel. The trial judge denied the motion without a hearing. The defendant appeals from the judgment and from the order denying his motion for new trial. We affirm.
Background. On October 13, 2013, the defendant boarded a Massachusetts Bay Transportation Authority (MBTA) bus with his girl friend and engaged in a discussion with the driver. The conversation grew heated, and a physical altercation ensued. The jury found the defendant guilty of assault and battery on a public employee.
Discussion. A defendant may obtain a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), "if it appears that justice may not have been done." However, an appellate court will review the decision "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). A defendant may prevail on a motion for new trial claiming ineffective assistance of counsel only after showing "serious incompetency, inefficiency, or inattention of counsel ... falling measurably below that which might be expected from an ordinary fallible lawyer," which "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A defense is substantial if a reviewing court has "serious doubt[s] whether the jury verdict would have been the same had the defense been presented." Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
1. Evidence of driver's propensity for aggression. The defendant argues that defense counsel should have attempted to introduce evidence of the driver's propensity for aggression, under Commonwealth v. Adjutant, 443 Mass. 649, 650 (2005). "[T]rial judges have the discretion to admit in evidence specific incidents of violence that the victim is reasonably alleged to have initiated" when "evidence of a victim's prior violent conduct may be probative of whether the victim was the first aggressor where a claim of self-defense has been asserted and the identity of the first aggressor is in dispute." Ibid. Specifically, the defendant points to the driver's arrest in 2014 in a separate matter, after this incident and before trial, for refusing to show his driver's license to the police and resisting arrest.
Other than the bare assertion of this arrest, the record includes no further details to provide context. The defendant acknowledges in his brief that his counsel may not have been able to present this evidence at trial. The defendant also cites the driver's arrest subsequent to this trial on a charge of assault and battery by means of a dangerous weapon wherein the alleged victim was an MBTA customer.
Adjutant evidence is appropriate only to resolve conflicting evidence regarding the identity of the first aggressor. See Commonwealth v. Morales, 464 Mass. 302, 307 (2013) (Adjutant"evidence might offer the only way for a jury to assess the validity or likelihood of the defendant's account of what happened" [emphasis supplied] ); Commonwealth v. Camacho, 472 Mass. 587, 592 (2015) (prohibiting Adjutant evidence where defendant conceded he was initial aggressor). That the jury here could watch the surveillance footage and reach their own conclusion obviates the need for Adjutant evidence.
Adjutant evidence is typically presented as part of a self-defense claim. See, e.g., Commonwealth v. Pring-Wilson, 448 Mass. 718, 736 (2007). It is unclear whether Adjutant evidence would be admissible where, as here, the defendant did not argue self-defense. See Commonwealth v. Benoit, 452 Mass. 212, 228 (2008) (Adjutant"specifically limited to situations where the defendant claims self-defense"). It also is not established that subsequent violent conduct can be admissible to determine who was the aggressor in an altercation, an issue we do not decide.
2. Additional surveillance footage. The defendant also argues that defense counsel should have introduced at trial additional surveillance footage, including recordings taken from several different vantage points around the bus, or tried to identify other passengers who could have testified. As none of the additional surveillance footage directly showed the start of the incident, and all the views were in evidence and available to the jury during deliberation, we are unconvinced that playing the recordings at trial or calling other passengers was likely to provide a substantial ground of defense. Saferian, 366 Mass. at 96. On this record, we cannot say that it was an abuse of discretion to deny the motion for new trial on this ground.
3. Other evidence. Likewise, the defendant's argument that his counsel was ineffective for failing to introduce evidence of the defendant's injuries is unpersuasive. Specifically, the defendant argues that counsel should have introduced medical records, inquired during cross-examination about the driver's physical contact with the defendant, and shown photographs taken of the defendant less than twenty-four hours after the incident. The defendant was not deprived of a substantial ground of defense as required under Saferian. Nothing in the defendant's arguments suggests that introducing his medical records, additional testimony from the driver, or the photographs would have contributed to the defense that the defendant did not hit the driver, and we do not see a way in which that evidence could have been more persuasive than the recording presented. As such, trial counsel did not deprive the defendant of a substantial ground of defense.
Although the defendant's brief contained an argument heading stating that defense counsel should have further questioned a defense witness after the prosecution's cross-examination, this argument was not further developed in the brief, and we do not address it here. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) ("The appellate court need not pass upon questions or issues not argued in the brief").
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4. Jury voir dire. Finally, we find no merit in the defendant's argument that his trial lawyer was ineffective for failing to interview jurors about prior media exposure to the incident. The judge asked the jurors if they had expressed or formed any opinions on the case to the extent they had heard anything about it. Where the judge made such an inquiry, we cannot say the failure to ask specifically about media exposure deprived the defendant of an available defense.
Conclusion. We can discern no error or abuse of discretion, and therefore affirm.
Judgment affirmed.
Order denying motion for new trial affirmed.