Commonwealth v. Christopher Barthelmes. ( 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-36
COMMONWEALTH
vs.
CHRISTOPHER BARTHELMES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of rape (two counts),
photographing an unsuspecting nude person, and annoying
telephone calls or electronic communications. On appeal, he
argues that the judgments should be vacated and a new trial
ordered because he was deprived of his right to testify and his
trial counsel was ineffective. 1 We affirm.
Discussion. 1. Right to testify. "A criminal defendant
has a fundamental right to testify on his own behalf."
Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 639 (1990). If
a defendant chooses to waive that right, his waiver must be
knowing and voluntary, "done with sufficient awareness of the
relevant circumstances and likely consequences." Brady v.
1 These arguments are presented pursuant to Commonwealth v.
Moffett, 383 Mass. 201, 208-209 (1981).
United States, 397 U.S. 742, 748 (1970). Accord Freeman, supra
at 640. The defendant may consult with counsel about the
decision to testify, but the defendant must make the ultimate
decision personally. See Commonwealth v. Waters, 399 Mass. 708,
716 (1987).
Here, the defendant claims that his trial attorney told him
not to testify and failed to advise him that he had a right to
do so. However, the defendant has not filed a motion for new
trial, and thus has not submitted an affidavit or presented any
other evidence in support of his claim.
The trial record contradicts the defendant's assertions.
Before the close of the defendant's case, the judge asked trial
counsel in the defendant's presence whether the defendant
intended to testify. After trial counsel indicated that the
defendant would not testify, the judge confirmed that counsel
had discussed the decision with the defendant. The judge then
conducted a colloquy with the defendant, which included advising
the defendant that (1) the defendant had a right to testify; (2)
regardless of his attorney's advice, it was the defendant's sole
decision whether to testify; and (3) the jury would be
instructed "emphatically" not to consider his decision not to
testify. The defendant confirmed to the judge that he had
consulted with counsel, was satisfied with her advice, and did
not wish to testify. We thus are satisfied that the defendant
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waived his right to testify knowingly, intelligently, and
voluntarily. See Commonwealth v. Castro, 438 Mass. 160, 174
(2002) (defendant voluntarily waived right to testify because
judge informed defendant of right, and confirmed that defendant
had discussed right with counsel, as well as risks and
benefits). The defendant has failed to satisfy "[his] burden of
proving that his waiver of his right to testify was invalid."
Commonwealth v. Lucien, 440 Mass. 658, 671 (2004).
2. Ineffective assistance. In analyzing the defendant's
claim for ineffective assistance of counsel, we determine
"whether 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 so, "whether it has likely deprived the
defendant of an otherwise available, substantial ground of
defence" (quotations omitted). Commonwealth v. Williams, 102
Mass. App. Ct. 626, 631 (2023), quoting Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). However, "[a] strategic or
tactical decision by counsel will not be considered ineffective
assistance unless that decision was manifestly unreasonable when
made" (quotation and citation omitted). Commonwealth v.
Acevedo, 446 Mass. 435, 442 (2006).
It is well established that the "preferred method" for
raising a claim of ineffective assistance of counsel is for
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counsel to file a motion for new trial. Commonwealth v. Zinser,
446 Mass. 807, 810 (2006). "[A]n ineffective assistance of
counsel challenge made on the trial record alone is the weakest
form of such a challenge because it is bereft of any explanation
by trial counsel for his actions . . . ." Commonwealth v.
Peloquin, 437 Mass. 204, 210 n.5 (2002). As noted above, the
defendant has not filed a motion for new trial. Nevertheless,
he claims that his trial counsel was ineffective for failing to
call the defendant's sister and mother as witnesses. The
defendant offers no evidence of the testimony that his mother
and sister would have given if they were called as witnesses.
Simply stated, the defendant has not established that his
counsel was ineffective in not summoning the mother and sister
to testify. See Commonwealth v. Collins, 36 Mass. App. Ct. 25,
30 (1994).
Judgments affirmed.
By the Court (Henry, Grant &
Brennan, JJ. 2),
Clerk
Entered: October 10, 2023.
2 The panelists are listed in order of seniority.
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