Opinion
15-P-369
03-25-2016
COMMONWEALTH v. VICTOR ECHANDY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Victor Echandy, appeals from his conviction of assault. He contends that (1) defense counsel provided ineffective assistance by offering a motive detrimental to the defendant's interest in his opening statement, and (2) the prosecutor improperly shifted the burden of proof to the defendant in his closing argument. We affirm.
The defendant was indicted on a charge of armed assault with intent to murder, G. L. c. 265, § 18, but was convicted of the lesser included offense of assault.
The defendant was acquitted of armed burglary and defacing property. See G. L. c. 266, § 14; G. L. c. 266, § 126. He was convicted of malicious damage to a motor vehicle, see G. L. c. 266, § 28(a), but does not challenge that conviction on appeal.
Ineffective assistance. During his opening statement, defense counsel stated that the case was about an "instant eviction. It's about a man who left his apartment for work one morning and when he got home that night he wasn't allowed back in. . . . What was really going on was that [the] new boyfriend had moved in while Mr. Echandy was at work." On appeal, the defendant argues that this statement was unnecessary, not otherwise supported by the evidence, and inflammatory, and therefore constituted ineffective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel, the defendant must show that "there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
An attorney's decision concerning what to include in an opening statement is "purely strategic." Commonwealth v. McMahon, 443 Mass. 409, 425 (2005). Tactical decisions of counsel are ineffective only if manifestly unreasonable when made. Commonwealth v. LaBrie, 473 Mass. 754, 771 (2016). An ineffective assistance claim brought on the trial record alone is the weakest form of challenge because it is bereft of any explanation by trial counsel as to the strategy underlying counsel's decisions. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006); Commonwealth v. Taylor, 463 Mass. 857, 869 (2012).
The Commonwealth's theory of the case was that the defendant broke into the home of Brenda Lopez, the defendant's former girl friend, and assaulted Julio Gonzalez after Lopez told the defendant (via text message) not to come home until her "visitor" had left. The defendant's theory of the case was that he was staying at Lopez's home, that he slept in the "long room" or "balcony" near the porch, kept his clothes there, paid rent, had a key, paid the natural gas bill, and was assaulted by Gonzalez when he came home from work.
The record suggests a strategic reason for this choice of opening statement. Charged with assault with intent to murder and armed burglary, see note 1, supra, defense counsel sought to establish that the defendant had a right to be in the home, that Lopez and Gonzalez wanted to get rid of him, and that they lied about the attack to do so. The strategy worked in so far as the defendant was acquitted of the most serious charges -- assault with attempt to murder and armed burglary. It was entirely within counsel's purview to concentrate on obtaining a favorable verdict on the most serious offenses. The decisions made with respect to the opening statement were not manifestly unreasonable.
The defendant also claims that it was ineffective to suggest that Gonzalez had moved in that day when there was no evidence that he had, and there were text messages from Lopez suggesting that her "visitor" would be leaving. This, the defendant now maintains, provided a greater motive for the assault than that offered by the Commonwealth. This contention is unpersuasive for the reason stated supra.
Moreover, the record is not as deficient as the defendant suggests. Lopez denied that Gonzalez had moved in and that the defendant lived in the house; her testimony on the latter point was equivocal, but the jury were not obligated to credit her denials. Certainly, on the defendant's theory of the case, he was entitled to argue that Gonzalez had a romantic interest in Lopez and a proprietary interest in her home. Trial counsel's decision to say that Gonzalez had moved in and wanted to move the defendant out was not manifestly unreasonable. The opening statement gave context, humanized the defendant, and supported his defense, namely that he came home to an enraged Gonzalez, and that Gonzalez attacked him. Furthermore, given the acquittals on the most serious charges, the remarks "produced no reasonable probability of prejudice to the defendant." Commonwealth v. Carney, 34 Mass. App. Ct. 922, 923 (1993).
She testified that the defendant slept in her home and left some clothes there, but also said that she did not give him the key and that he also stayed elsewhere.
Closing argument. The defendant offered a key in evidence and testified that the key was his key to Lopez's home. In closing argument, the prosecutor stated, "There's no direct evidence" that the key was in fact a key to Lopez's home. The defendant argues that this statement improperly shifted the Commonwealth's burden of proof to the defendant. See Commonwealth v. Tu Trinh, 458 Mass. 776, 787 (2011) (burden shifting "signal[s] to the jury that the defendant has an affirmative duty to bring forth evidence of his innocence, thereby lessening the Commonwealth's burden to prove every element of a crime"). The defendant did not object. We therefore review to determine if there was error, and if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Miranda, 458 Mass. 100, 114 (2010).
We consider the remark in the context of the prosecutor's entire argument, the evidence admitted at trial, and the judge's jury instructions. Ibid. Although the reference to direct evidence was inaccurate (because the defendant's testimony was direct evidence), and may have been better left unsaid, the argument preceding this reference consisted of a correct statement of the burdens of proof, and an appropriate comment on the credibility of the witness. Id. at 116-117. In light of the judge's instructions, the jury would understand that the prosecutor was challenging the credibility of the defendant's testimony rather than asserting that the defendant bore the burden of proving the legitimacy of the key. Even if viewed otherwise, in the context of the entire closing argument, the prosecutor's isolated statement did not create a substantial risk of a miscarriage of justice. Ibid.
The prosecutor stated:
"Now, before I get into Mr. Echandy's version of events here, let me be clear, everything that defense counsel told you about the Commonwealth having the burden of proof here is absolutely true. Mr. Echandy doesn't have to do anything. Everything is on the Commonwealth to prove that this happened and to back it up with evidence beyond a reasonable doubt. He doesn't have to talk to you. He doesn't have to say anything, he doesn't have to call any witnesses, but in this case he did. He took the stand, so now we get to evaluate what it is he said."
The prosecutor stated:
"You have been presented with a key. This could be a key to anything. The only evidence you have that this is a key to 24 Eaton Street is Mr. Echandy telling you this is a key to 24 Eaton Street. Other than that, we really have no idea what this opens up. Brenda Lopez told you she never gave him a key. She was shown a key by defense counsel and still claimed, I never gave him a key. There's -- and if you think about it, there's really nothing to stop me from pulling out my own keys and saying I can get into 24 Eaton Street right now. There's no direct evidence that that's the key to 24 Eaton Street. It's simply what you're being told by Mr. Echandy as he defends himself in these allegations."
Judgments affirmed.
By the Court (Meade, Sullivan & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 25, 2016.