Commonwealth v. Michael D. Thomas.

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-298
COMMONWEALTH
vs.
MICHAEL D. THOMAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
At about 7 P.M., on December 12, 2017, the defendant rubbed
his body against two women who were waiting in line to make
purchases at a convenience store in Boston. He followed one of
the women out of the store and made comments to her. Complaints
charged him with two counts of indecent assault and battery
(G. L. c. 265, § 13H) and two amended counts of threatening to
commit a crime (G. L. c. 275, § 2). A jury convicted him of one
count of indecent assault and battery. We discern in the
defendant’s various claims of error no cause to disturb the
judgment, and affirm.
Background. Evidence before the jury included surveillance
video from the convenience store as well as the testimony of one
victim and three police officers. The victim testified that she
and her coworker went into the convenience store and waited in
line at the cashier. A man walked behind the victim and "rubbed
up against" her. "His genital area touched [her] rear bottom."
The victim moved away, told him to "back up" and said, "[W]ho
are you?" She was "shocked" and "caught off guard." The man
then stepped behind the victim's coworker (who did not testify)
and "rubbed up against" her in the same way. The man then
walked behind the victim again and "rubbed up against" her for a
second time. The entirety of the interaction was only
"somewhat" visible from the surveillance camera angle.
After being touched a second time, the victim felt
"violated" and wanted to leave "right away." The women left the
store together, and the man followed them outside "saying
things" to them. He followed the victim as she started to walk
home, and he told her that he was "coming home with [her] to
fuck the shit out of [her]." The victim told him to stop,
called out to her coworker, and ran. He chased her down the
street and pulled up his shirt. The victim caught up to her
coworker, who flagged down a police officer heading to another
call. Both women then went to the police department, where they
spoke with officers.
Moments later, officers responded to the store and saw the
defendant, who matched the description provided. Officers
attempted to speak with him, but he was uncooperative,
belligerent, argumentative, and intoxicated. Eventually, the
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defendant provided his name and date of birth. The defendant
denied knowing why the police wanted to speak with him, and
officers did not arrest him.
Following the defendant's conviction, he appealed. Those
proceedings were stayed by this court while the defendant filed
a motion for a new trial raising numerous claims directed
primarily at the conduct of trial counsel. The trial judge held
an evidentiary hearing, which included the testimony of trial
counsel, and denied the motion. This appeal, consolidated with
his direct appeal, followed.
Discussion. 1. Ineffective assistance of counsel. When
claiming ineffective assistance of counsel, the defendant must
show that counsel "made errors so serious that counsel was not
functioning as the 'counsel'" mandated by law and must also show
"that counsel's errors were so serious as to deprive the
defendant of a fair trial." Strickland v. Washington, 466 U.S.
668, 687 (1984). Merely suggesting alternative courses of
action is inadequate to prove ineffective assistance. Instead,
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
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defendant of an otherwise available, substantial ground of
defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
a. Conceding guilt in the closing argument. The record
does not support the defendant's contention that counsel
conceded guilt in his closing argument. Instead, the record
shows that counsel offered a non-criminal explanation for the
evidence before the jury. The surveillance video clearly showed
the defendant's bizarre movements behind two different women,
and the testimony of one of those women showed that the
defendant "rubbed up against" both women and "rubbed up against"
her for a second time. Given this evidence, counsel conceded
that the convenience store was not "an appropriate place" for
the defendant's behavior, and he conceded that the behavior in
such a place may have been "inappropriate, annoying and possibly
even offensive." He argued that the "lighthearted conversation"
seen on the surveillance video between the defendant and the
victim's coworker showed that he was being flirtatious as if in
a crowded bar, but such conduct was "not a crime." He suggested
that the alleged contact arose not from the defendant's "private
part," but from the defendant's waist length winter jacket
"brush[ing]" against the victim.
By conceding that the defendant's behavior was not
"acceptable" or "appropriate" in a convenience store (as opposed
to a crowded bar), counsel drew the perfectly rational and
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significant distinction between "horse playing" and criminal
conduct. When, as here, the victim's testimony tends to be
corroborated by surveillance video, a rational concession before
a jury is a strategic decision that is "securely within the
realm of effective representation" (citation omitted).
Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015). Such a
concession is commonly deployed "as part of a litigation
strategy to boost [the defendant's] credibility with that jury."
Commonwealth v. Ramsey, 466 Mass. 489, 496 n.8 (2013). We
discern no error with the motion judge's conclusion that
counsel's argument was not "manifestly unreasonable" in these
circumstances. See Bonnett, 472 Mass. at 833.
b. Withdrawing a request for a lesser included offense
instruction. Counsel faced another strategic decision when the
judge asked about providing an instruction on the lesser
included offense of assault and battery. Following a sidebar
conference, the prosecutor declined to request the instruction,
and defense counsel requested the instruction. After defense
counsel later announced, "My client just changed his mind about
the lesser included," the judge did not provide the instruction.
The defendant contends that counsel should have requested the
instruction because without the lesser included option the jury
"did not have a means of holding the [d]efendant accountable for
the criminal conduct that was conceded during the closing
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argument." We disagree with the premise that at the time of the
jury instruction jurors were looking to hold the defendant
"accountable" for something. That view may be true in hindsight
with the benefit of knowing the verdict, but when assessing
attorney performance at trial, "every effort [must] be made to
eliminate the distorting effects of hindsight . . . and to
evaluate the conduct from counsel's perspective at the time."
Strickland, 466 U.S. at 689. At the time counsel declined the
instruction, there was a possibility of an acquittal on all the
charges -- as counsel put it in his testimony at the hearing on
the new trial motion, he discussed with the defendant the
possibility of a "clean sweep" or a "homerun" that might result
without the lesser included instruction. The defendant told
him, "[L]et's go for the homerun." The motion judge clearly
credited this account (also referenced in counsel's affidavit).
We give "special deference" to this factual finding by the
motion judge, who was also the trial judge, and discern no
error. Commonwealth v. Tinsley, 487 Mass. 380, 385 (2021).
c. Failing to object to testimony about the defendant's
statement to the police. The defendant next contends that he
invoked his right to remain silent, and counsel should have
objected to testimony about his brief remarks to the police.
Responding officers testified that the defendant initially
"refused to talk," and presented as uncooperative, belligerent,
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intoxicated, and argumentative, but eventually provided his name
and date of birth. He also denied knowing why the police wanted
to speak with him. The motion judge rejected the defendant's
claim because the record did not show an invocation of the right
to silence, and counsel strategically chose not to object to
this evidence. We need not unpack the meaning of the
defendant's refusal because the strategy professed by counsel
and credited by the judge is sufficient to resolve this claim.
If the defendant's brief remarks had been excluded, the jury
would have heard that he appeared belligerent, uncooperative,
and intoxicated without any context. As counsel asserted at the
hearing, the defendant's brief remarks provided context by
countering this evidence and showing that the defendant did not
flee, was in fact cooperative, had "nothing to hide," and "had
done nothing wrong" to merit police scrutiny. This evidence
also enabled counsel to suggest in his closing argument that the
complaints lacked any basis because the defendant spoke to the
police at the scene, but they never arrested him. Counsel's
judgment represented a "quintessential strategic choice" that we
cannot say was manifestly unreasonable. Commonwealth v. Hudson,
446 Mass. 709, 720 (2006). Therefore, we discern no error in
the denial of this claim.
d. Failing to object to hearsay evidence. We also see no
error in the absence of an objection to testimony by one officer
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about the procedural steps taken in the investigation. One of
the officers testified that he left the scene, spoke to the "two
women," and notified a "member of the sexual assault unit." The
defendant contends that counsel should have objected because the
testimony constituted hearsay, violated the defendant's right to
confront the coworker who did not testify, and corroborated the
testimony of the victim. We disagree.
An objection would have been unsuccessful because testimony
about these investigative steps was entirely proper and did not
constitute hearsay, implicate confrontation rights, or
corroborate the victim's testimony. See Commonwealth v. Arana,
453 Mass. 214, 227 (2009) ("circumstances, and timing, of police
involvement in the [sexual assault] case was relevant and
admissible"); Commonwealth v. Cohen, 412 Mass. 375, 393 (1992),
quoting McCormick on Evidence § 249, at 734 (3d ed. 1984)
("investigating officer should not be put in the false position
of seeming just to have happened upon the scene; he should be
allowed some explanation of his presence and conduct").
Evidence of investigative steps was also "an integral piece of
the Commonwealth's response to the defendant's theory" that the
police failed to fully investigate the case. Arana, 453 Mass.
at 227. Additionally, jurors "hardly would be surprised to
learn that the investigation that the police conducted in the
case before them was of a sexual assault." Commonwealth v.
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Condon, 99 Mass. App. Ct. 27, 38 (2020). As the judge properly
concluded, counsel cannot be deemed ineffective where an
objection to the admission of evidence would likely have been
overruled. See Saferian, 366 Mass. at 96.
e. Failing to object to inflammatory remarks in the
prosecutor's closing argument. The defendant next contends that
counsel failed to object to two inflammatory remarks in the
prosecutor's closing argument. In the first remark, the
prosecutor asked if the defendant was "to be commended because
he didn't finish and attack her on the street?" In the second
remark, the prosecutor referred to the defendant's conduct as
"objectification" of women and asked, "How monstrous is that?"
On review of this issue in the motion for a new trial, the trial
judge concluded that neither remark, taken in context, was
objectionable. We discern no error.
Both remarks require some context. The remark about
commending the defendant was expressly a response to defense
counsel's arguing that the defendant "called off his pursuit" of
the victim. The prosecutor said, "Counsel would have you
believe [that] he stopped." Her point was clearly that the
defendant did not merely call off the pursuit on his own -- he
chased the victim down the street and gave up the chase only
when she fled and called to her friend. As the prosecutor said,
"One would hope that [he] would stop" in these circumstances and
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not expect a commendation. That was a fair argument based upon
the evidence and counsel's argument.
The second remark used a somewhat archaic word,
"monstrous," which is synonymous with "outrageous." Calling a
defendant a "monster" is not permitted, but the prosecutor did
not do that. See, e.g., Commonwealth v. Bois, 476 Mass. 15, 34
(2016) (error to refer to defendant as "monster[ ] that come[s]
out in the night"); Commonwealth v. Rosario, 430 Mass. 505, 515
(1999) (calling defendant monster was "wholly inappropriate and
should not have occurred"). Here, the prosecutor noted the
"objectification" of women and asked, "How monstrous is that?"
We agree with the judge, who heard the argument, that the clear
intent was to emphasize how outrageously wrong and dehumanizing
it is to treat persons as objects. Given the context of the
remarks, we do not believe the prosecutor conveyed that the
defendant was a monster. Even if jurors, who saw the
surveillance video for themselves, took the remark in that way,
the verdicts show that they were not swept by an inflammatory
and emotional appeal to convict. Where the judge concluded that
the closing argument was proper, we agree that counsel cannot be
said to be ineffective for not making a futile objection.
f. Failing to advise the defendant of sentencing options.
The defendant also claims that his decision to go to trial was
tainted by counsel's inadequate advice about sentencing options
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following a change of plea. To prevail on an ineffective
assistance claim in these circumstances, the defendant must show
a "reasonable probability" that "but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Commonwealth v. Mahar, 442 Mass. 11, 15
(2004), quoting Strickland, 466 U.S. at 694. "In particular,
the defendant must demonstrate a reasonable probability that the
prosecution would have made an offer, that the defendant would
have accepted it, and that the court would have approved it."
Commonwealth v. Marinho, 464 Mass. 115, 129 (2013). Accord
Lafler v. Cooper, 566 U.S. 156, 164 (2012). We discern no error
in the denial of this claim.
The defendant contends that he opted to go to trial because
counsel failed to advise him that a plea could provide
sentencing "options" that would not include sex offender
registration. The main problem with this argument is that the
defendant did not have the range of options that he now
suggests. As the judge found after the hearing on the motion
for a new trial, the options were very limited. The prosecutor
rejected a charge concession on the two indecent assault and
battery counts (implicating the sex offender registration
component), the defendant told counsel that he would not agree
to supervised probation (impliedly necessary for an agreed
disposition), and the judge believed it was "highly unlikely"
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that she would have agreed to a defense request for a
continuance without a finding. Given these facts found by the
judge, the defendant cannot demonstrate a reasonable probability
that "the prosecution would have made an offer, that the
defendant would have accepted it, and that the court would have
approved it." Marinho, 464 Mass. at 129. Nor is there any
proof that an unagreed plea tender would have been accepted. In
his brief, the defendant suggests various sentencing
possibilities short of trial, but these scenarios amount to mere
"conjecture or speculation" that cannot support an ineffective
assistance of counsel claim (citation omitted). Id.
2. Jury instruction on credibility of witnesses. Finally,
we review the defendant's claim raised for the first time that
the judge provided an improper jury instruction on witness
credibility. We discern no error and no "substantial risk of a
miscarriage of justice." Commonwealth v. Freeman, 352 Mass.
556, 563-564 (1967).
The defendant contends that the judge "improperly modified"
the standard instruction on credibility of witnesses by adding,
"Innocent mistakes of memory do happen. Sometimes people forget
things, or they get confused, or they remember an event
differently." "[A] trial judge is not constrained to use any
particular language in his [or her] instructions; rather, [the
judge] is required only to provide a full and accurate
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explanation of the governing law applicable to a particular
case." Commonwealth v. Berrio, 43 Mass. App. Ct. 836, 838
(1997). A judge has discretion "to choose the form of
expression best adapted to make the law intelligible to the
jurors." Commonwealth v. Silva, 388 Mass. 495, 507 (1983). The
judge here provided a lengthy instruction to jurors on
evaluating witness credibility. That instruction told jurors to
draw upon their "common sense" and "experience of life" and to
consider a witness's possible bias or motive, appearance,
demeanor, opportunity to observe, intelligence, accuracy of
memory, and inconsistent statements. The judge's instruction,
as a whole, accurately conveyed to jurors their role in
assessing witness credibility and "neither misstated the case
law nor prevented the jury from considering omissions as
inconsistencies." Commonwealth v. Bruce, 61 Mass. App. Ct. 474,
484 (2004). As such, we discern no error and no "substantial
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risk of a miscarriage of justice." Freeman, 352 Mass. at 563-
564.
Based upon the foregoing, we are satisfied that none of the
defendant's claimed errors, alone or in combination, merit a new
trial.
Judgment affirmed.
Order denying motion for new
trial affirmed.
By the Court (Green, C.J.,
Ditkoff & Hodgens, JJ. 1),
Clerk
Entered: September 12, 2023.
1 The panelists are listed in order of seniority.
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