Commonwealth v. Constantine G. Thompson.

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-678
COMMONWEALTH
vs.
CONSTANTINE G. THOMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant, Constantine G.
Thompson, was convicted of assault and battery on a family or
household member and larceny from a person. On appeal, he
claims his trial counsel was ineffective because she failed to
secure the presence of a State police witness who purportedly
would have testified that the stolen property that gave rise to
his larceny conviction was not found during an inventory search
of his vehicle at the time of his arrest. We affirm.
Background. We summarize the evidence adduced at trial,1
and reserve specific facts for later discussion. The defendant
and victim were in a relationship in 2019. Around 7 A.M. on
1 The Commonwealth called the victim, the victim's coworker, and
Northborough police Sergeant Sean Montville as trial witnesses.
The defendant neither testified nor called any witnesses.
November 27, 2019, the defendant drove to the victim's workplace
to confront her about something that had occurred the prior
evening. On arrival, the defendant approached the victim's car,
where he found her sitting in the driver's seat. The victim
rolled down her window to speak with the defendant, and during
their interaction the defendant suddenly punched her face. The
defendant then opened the door, pushed the victim, and punched
her a second time before she escaped through the passenger side
door. Once outside her car, the victim yelled to a coworker to
call 911. The defendant took the victim's phone before
returning to his own vehicle and leaving the scene.
Sergeant Sean Montville responded to the scene and observed
visible injuries to the victim's face and hand. Montville did
not see or later interact with the defendant, and he testified
that had no personal knowledge whether the police recovered the
victim's phone from either the defendant or his vehicle. When
defense counsel sought the trial judge's permission to approach
Montville with what she asserted was a vehicle inventory report
generated on the search of the defendant's vehicle, the judge
asked her for an offer of proof. The following exchange ensued:
Defense counsel: "I think the offer of proof, Your Honor,
is there's no phone."
Judge: "There's no phone."
Defense counsel: "There's no phone. There's no phone
recovered."
2
Judge: "In the car?"
Defense counsel: "In the car, there's a personal property
inventory that I would offer [as] proof next that shows a
cell phone that doesn't indicate what they've done with it.
Is it her phone, it is his phone? There's an allegation
that he's taken something that nobody seems to know where
it is to prove that he had it."
Based on defense counsel's proffer, the judge foreclosed this
line of questioning after finding Montville had no personal
knowledge as to the recovery of the phone. The inventory report
referenced by counsel was neither marked for identification nor
admitted in evidence.
The defendant now claims that trial counsel provided
ineffective assistance because she failed to summons a State
police witness to testify that the victim's cell phone was not
recovered during an inventory search of the defendant's vehicle.
The defendant contends this testimony would have cast doubt on
the victim's credibility and established reasonable doubt as to
the larceny charge.
Discussion. A successful claim for ineffective assistance
of counsel requires a showing that (1) the "behavior of counsel
[fell] measurably below that which might be expected from an
ordinary fallible lawyer" and (2) such failing "likely deprived
the defendant of an otherwise available, substantial ground of
defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Where, as here, an ineffective assistance claim is raised for
3
the first time in the defendant's direct appeal, our review is
limited to what is contained in the trial record. See
Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Relief may
only be afforded if "the factual basis of the claim appears
indisputably on the trial record -- that is, where the issues do
not implicate any factual questions more appropriately resolved
by a trial judge." Commonwealth v. Keon K., 70 Mass. App. Ct.
568, 573-574 (2007). See Commonwealth v. Peloquin, 437 Mass.
204, 210 n.5 (2002). For the reasons discussed below, the
defendant cannot make the required showing.
As an initial matter, we note that the vehicle inventory
report on which the defendant seeks to rely is not properly
before us because it was never admitted in evidence at trial or
otherwise made part of the record. See Commonwealth v. Core,
370 Mass. 369, 371 (1976). Nothing in the record before us
indisputably establishes that the victim's phone was absent from
the defendant's car when the police searched it. To the
contrary, counsel remarked at trial that a police personal
property inventory report indicated that a phone was found in
the defendant's car, albeit without identifying whether it
belonged to the victim or the defendant. The factual premise of
the defendant's ineffective assistance argument -- that the
police did not recover the victim's phone during an inventory
search of the defendant's car -- simply has not been
4
established. Because the factual basis for the defendant's
claim does not "appear[] indisputably on the trial record,"
Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), it
does not fall "within that narrow category of claims that an
appellate court can resolve on the trial record alone." Zinser,
446 Mass. at 811-812.
Even assuming arguendo that the factual basis for the
defendant's claim -- that the police did not recover the
victim's phone from the defendant's vehicle -- was indisputably
evident from the trial record, the defendant has not adequately
explained how this evidence would have afforded him a
substantial defense at trial. First, the Commonwealth did not
present any evidence that the victim's phone had, in fact, been
recovered from either the defendant or his vehicle. Trial
counsel emphasized this point at the outset of her closing
argument by stating, "We don't know where the phone is, there
was no evidence given that, you know, where the phone wound up,
what happened to it. . . . [I]t can't be left up to
speculation." Given counsel's ability to highlight the
Commonwealth's inability to account for the phone, it is
unlikely the addition of direct testimony concerning the
nonrecovery of the phone in the defendant's vehicle would have
influenced the judge. See Commonwealth v. Watkins, 473 Mass.
222, 239 (2015), quoting Commonwealth v. Freeman, 442 Mass. 779,
5
791 (2004) ("When addressing ineffective assistance of counsel
claims, we 'consider whether there was an error in the course of
trial, and if so, whether such error was likely to have
influenced the [fact finder's] conclusion'").
The defendant also argues that the victim's credibility
would have been cast in doubt had defense counsel established
that her phone was not found in the defendant's car. We
disagree given the strength of the Commonwealth's case.
Although the Commonwealth offered no corroborative evidence to
the victim's specific claim that the defendant took her phone,
both the eyewitness testimony and photographic exhibits2
corroborated significant portions of her account of the assault
and battery, thus bolstering her credibility. In fact, the
judge commented that the testimony of all of the Commonwealth's
witnesses was "[s]ome of the most compelling testimony [he] ever
had as a judge." Furthermore, the judge, after announcing the
verdict, stated that he "found [the victim] to be incredibly
credible," and had believed her testimony.3 On the record before
us, we remain unpersuaded that the judge's assessment of the
2 The Commonwealth introduced into evidence three photographs,
taken soon after the victim's reported assault, purportedly
depicting injuries the victim received from the assault.
3 Credibility determinations by the judge who "heard the
testimony of the parties . . . [and] observed their demeanor"
are entitled to the utmost deference. Ginsberg v. Blacker, 67
Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v. Maguire, 47
Mass. App. Ct. 929, 929(1999).
6
victim's credibility would have changed substantially if defense
counsel had called a witness to establish the victim's phone was
not recovered from the defendant's vehicle.
Finally, we acknowledge the Commonwealth's assertion that
it was not required to prove the defendant retained possession
of the phone after taking it from the victim. See G. L. c. 266,
§ 25 (b); Commonwealth v. Murray, 401 Mass. 771, 772 (1988)
("Larceny is the taking without right of the personal property
of another with the specific intent to deprive the other of the
property permanently").
Therefore, even accepting the factual basis for the
defendant's claim of ineffective assistance of counsel, the
claim fails because the defendant was not deprived of an
available and substantial defense, especially given the strength
of the Commonwealth's case. See Saferian, 366 Mass. at 96.
Judgments affirmed.
By the Court (Milkey,
Neyman & Smyth, JJ.4),
Clerk
Entered: May 4, 2023.
4 The panelists are listed in order of seniority.
7