Commonwealth v. Michael Marple. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-223
COMMONWEALTH
vs.
MICHAEL MARPLE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order denying his fourth
motion for a new trial, filed in 2021. 1 The motion was supported
by affidavits and alleged that trial counsel's advice at the
plea stage, and his later decisions not to object to the
prosecutor's closing argument or request certain jury
instructions, was conduct "falling measurably below that which
might be expected from an ordinary fallible lawyer" which
"likely deprived the defendant of an otherwise available,
1 The defendant's first motion for a new trial, filed after his
conviction of murder in the second degree was affirmed on direct
appeal, Commonwealth v. Marple, 26 Mass. App. Ct. 150 (1988),
was denied by the trial judge in a decision that a different
panel of this court affirmed. Commonwealth v. Marple, 35 Mass.
App. Ct. 1103 (1993). In 2009 and 2010, the defendant filed
second and third motions for a new trial, which were denied in
orders that another panel of this court affirmed in a
consolidated appeal. Commonwealth v. Marple, 81 Mass. App. Ct.
1124 (2012).
substantial ground of defence." Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). A Superior Court judge denied the motion
without evidentiary hearing, Mass. R. Crim. P. 30 (c) (3), as
appearing in 435 Mass. 1501 (2001), after concluding that it
failed to raise a substantial question under the first prong of
Saferian. See Commonwealth v. Comita, 441 Mass. 86, 90 (2004)
(defendant's burden to prove both prongs). Seeing no error of
law or abuse of discretion by the judge, Commonwealth v. Barry,
481 Mass. 388, 401 (2019); Commonwealth v. Grace, 397 Mass. 303,
307 (1986), and no substantial risk of a miscarriage of justice
from counsel's supposed failures, Commonwealth v. Glover, 459
Mass. 836, 846 (2011), we affirm.
The judge correctly discerned that the affidavits failed to
raise a substantial issue regarding trial counsel's advice to
"roll[] big dice" because the case "was in the bag" and "a sure
thing" (though the judge did not believe trial counsel said
that). To quote a prior panel, see note 1, supra, "The decision
to pursue an 'all-or-nothing' strategy, in hopes of gaining an
acquittal, is not manifestly unreasonable." Commonwealth v.
Marple, 81 Mass. App. Ct. 1124 n.1 (2012). Counsel's "simple
misjudgment as to the strength of the prosecution's case [and]
the chances of acquittal," or the fact that the strategy did not
work, does not "give rise to a claim of ineffective assistance
of counsel" (citation omitted). Commonwealth v. Mahar, 442
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Mass. 11, 17 (2004). The defendant's wish "to second guess his
decision and counsel's advice in light of subsequent adverse
events" is understandable, but "[w]e do not view such advice
retrospectively through the lens of subsequent events that may
have proved it wrong." Id.We have no basis to question the judge's assessment of the
prosecutor's closing argument where the defendant apparently
provided the seven volumes of trial transcript to the motion
judge but did not, as was his obligation, supply the court with
an electronically formatted transcript or certify that a copy
was available in the appellate court. Mass. R. A. P. 9 (d) (1)
and (d) (3), as appearing in 481 Mass. 1615 (2019). See
Commonwealth v. Renderos, 440 Mass. 422, 425 (2003) (closing
arguments reviewed in light of entire argument as well as
judge's instructions to jury and evidence at trial). For this
same reason, we cannot quarrel with the judge's determination
that a "separate consideration" instruction was unnecessary
because "[t]he jury obviously understood that Marple was the
only defendant on trial" and "[t]he joint enterprise charge
fully explained that the government must prove the individual
defendant's personal participation and not just his mere
presence." See Commonwealth v. Arias, 84 Mass. App. Ct. 454,
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465 (2013) (review of claimed jury instruction error requires
evaluation of instructions as a whole).
Order denying fourth motion
for new trial affirmed.
By the Court (Blake, Walsh &
Hershfang, JJ. 2),
Clerk
Entered: August 21, 2023.
2 The panelists are listed in order of seniority.
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