Commonwealth v. Melissa G. Borland.

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-361
COMMONWEALTH
vs.
MELISSA G. BORLAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of assault
and battery by means of a dangerous weapon and assault and
battery. 1 On appeal, the defendant claims that the judge erred
by (1) determining at the close of the Commonwealth's case that
the evidence did not warrant an instruction on self-defense, and
(2) denying the defendant's motions for required findings of not
guilty. The defendant also claims that her trial attorney
rendered ineffective assistance by calling her as a witness
knowing she made prior inconsistent statements and was not
competent. We affirm.
Background. In summarizing the evidence at trial, we start
by noting what was undisputed. The defendant and victim were
1 The jury returned verdicts of not guilty of kidnapping and
witness intimidation.
neighbors at the time of the incident. On the morning of
October 3, 2018, the defendant entered the victim's apartment
and asked the victim to make a phone call for her. Shortly
thereafter, the defendant struck the victim, who was unarmed, in
the head with a hammer. The main issue at trial was whether the
defendant's conduct was a justified exercise of self-defense.
1. The Commonwealth's case. The victim testified that,
not long after entering inside his apartment, the
defendant -- "all of a sudden," "without warning," and with
"[n]o provocation at all" -- grabbed him by the hair and hit him
in the head three times with a hammer. 2 The victim stood up,
knocked the hammer out of the defendant's hand, and attempted to
call 911. However, the defendant "grabbed [him] by the wrist"
and "pull[ed] [him] onto the bed." The victim testified that he
eventually wrestled away from the defendant and tried to flee
the apartment, but she prevented him from leaving by blocking
the door. After struggling with the defendant for approximately
twenty minutes, the victim managed to call 911; multiple police
officers responded to the scene.
Officer Licinio DePina testified that he saw the victim
being treated by emergency medical service providers, "bleeding
from the head and covered in blood." DePina spoke to the
2 The ball peen hammer was an antique owned by the victim.
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victim, who claimed he did not know why the defendant had hit
him in the head with the hammer. The victim was transported to
the hospital, where he was treated for a "severe head injury."
Another responding officer, Officer Kenneth Egan, encountered
the defendant in the victim's apartment. Egan observed that the
defendant was not wearing pants, and that she had scratches and
bloodstains on her forearms. The defendant told Egan she had
had an "encounter with a neighbor" and that "he was bleeding
pretty badly." The defendant also inquired whether the victim
"was okay." The defendant claimed she was at the victim's
apartment to discuss a local food pantry and look at plants.
The defendant neither reported to the officers any injuries of
her own nor claimed that she had acted in self-defense.
At the close of the Commonwealth's case, defense counsel
inquired with the judge whether the evidence warranted a self-
defense instruction. The defendant's self-defense claim was
based largely on the officers' testimony about the defendant's
appearance at the scene, that the victim was significantly
larger in stature than the defendant, and the victim's testimony
concerning statements the defendant made during their violent
encounter. Specifically, the victim testified that he had
written a letter to the district attorney's office in which he
reported the defendant yelled he was trying to rape her after
she pulled him onto the bed. The victim also testified that he
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told an officer who interviewed him one month after the incident
that the defendant had said he was attacking her. The judge
decided that the evidence did not yet warrant a self-defense
instruction at that stage of the trial.
2. The defendant's case. At the close of the
Commonwealth's case, the judge denied the defendant's motion for
required findings of not guilty. After the court took a recess
as requested by defense counsel so that he could consult with
his client, counsel called the defendant to testify. The
defendant, as the sole witness in her defense, claimed she was
acting in self-defense when she struck the victim in the head
with the hammer as he was on top of her attempting to rape her.
Discussion. 1. Sufficiency of the evidence. The
defendant first claims that the convictions cannot stand because
the Commonwealth failed to rebut the evidence before the jury at
the close of the Commonwealth's case that the defendant had
acted in self-defense. She also contends that the evidence in
general was insufficient to support the convictions. We
disagree.
We review the evidence in the light most favorable to the
Commonwealth, to determine whether "any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
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The evidence, which included the victim's testimony that the
defendant, unprovoked, attacked the victim in his own home,
striking him three times in the head with a hammer and causing
injuries, was sufficient to establish the elements of assault by
means of a dangerous weapon beyond a reasonable doubt. See
Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016)
("violation of G. L. c. 265, § 15A, requires proof of three
elements: [1] the presence of all the elements of assault, and
[2] a touching, however slight, [3] by means of a dangerous
weapon"). We disagree with the defendant's contention that
there was insufficient evidence that "she used an inherently
dangerous weapon or another object with the intent to cause or
knowledge that it would cause [the victim] harm." Considering
the victim's testimony, the photographs of his injuries, the
admission of the hammer into evidence, and the supporting
medical records, a rational jury could find the defendant used
the hammer as a dangerous weapon. See Commonwealth v. Gebo, 489
Mass. 757, 773-774 (2022) (even "innocuous object[s]" and
"household items," such as plastic chair swung at victim, can be
dangerous weapons). See also Commonwealth v. Appleby, 380 Mass.
296, 307 n.5 (1980) ("the question whether a weapon is dangerous
as used is always one for the fact finder").
In addition, the evidence that the defendant grabbed the
victim and pulled him down was sufficient to satisfy the
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essential elements of assault and battery. See Commonwealth v.
Garvey, 99 Mass. App. Ct. 139, 145 (2021) ("To support a
conviction of intentional assault and battery, the Commonwealth
must prove that the defendant committed an intentional and
unjustified use of force upon the person of another, however
slight" [quotation omitted]).
Finally, the evidence as to the unprovoked, aggressive
nature and force of the attack was sufficient to demonstrate the
defendant did not act in self-defense. 3 See Commonwealth v.
Harrington, 379 Mass. 446, 452-454 (1980). See also
Commonwealth v. Kapaia, 490 Mass. 787, 793 (2022) ("the
defendant's claim that certain witnesses were unreliable or that
the testimony from some witnesses was inconsistent with the
testimony from others and therefore insufficient to sustain a
conviction is nothing more than an issue of credibility, an
issue that is solely within the province of the jury" [quotation
omitted]). Accordingly, there was no error in the denial of the
motion for a required finding of not guilty.
2. Self-defense instruction. At the outset, we note that
the judge did in fact give a self-defense jury instruction in
her final charge to the jury. The issue before us is whether,
3 The self-defense aspect of the sufficiency analysis overlaps,
of course, with the issue of whether the judge erred by finding
the evidence did not warrant a self-defense instruction, as
discussed in more detail below.
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at the close of the Commonwealth's case, the evidence warranted
such an instruction. Because the objection was preserved, we
review for prejudicial error. Commonwealth v. Teixeira, 486
Mass. 617, 622 (2021).
"Before the defendant is entitled to an instruction on the
right to use deadly force in self-defense, the evidence must
raise a reasonable doubt as to the defendant's right to use such
force." Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644
(2002), citing Commonwealth v. Rodriguez, 370 Mass. 684, 687-688
(1976). "[W]e consider the evidence, from any source, and
resolve all reasonable inferences in favor of the defendant,
without balanc[ing] the testimony of the witnesses for each side
or consider[ing] the credibility of the evidence" (quotations
and citation omitted). Commonwealth v. Miranda, 484 Mass. 799,
810, cert. denied, 141 S. Ct. 683 (2020). "However, a judge is
not required to charge on self-defense . . . where a jury would
be left to speculate on a hypothesis not supported by the
evidence." Commonwealth v. Paton, 31 Mass. App. Ct. 460, 464
(1991). See Commonwealth v. Garcia, 482 Mass. 408, 411 (2019).
"When reviewing the denial of an instruction on the use of
deadly force in self-defense, [we] ask[] whether, in the light
most favorable to the defendant, the evidence raised at least a
reasonable doubt that the defendant (a) believed . . . she was
in imminent danger of death or serious bodily harm from which
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the defendant could save . . . herself only by using deadly
force, and (b) used all reasonable means available to retreat
from the conflict." 4 Teixeira, 486 Mass. at 622-623. "Failure
to raise a reasonable doubt as to [any] of these predicates is
fatal to a claim of self-defense." Toon, supra at 650.
Here, there was nothing in the evidence at the close of the
Commonwealth's case to suggest that, prior to hitting the victim
with the hammer, the defendant had attempted either to retreat
or had no reasonable means of escape from a conflict with the
victim who posed imminent danger of serious physical harm to
her. "[S]ome evidence" of these things was required "[b]efore
that question may go to the jury." Commonwealth v. Pike, 428
Mass. 393, 399 (1998). See Commonwealth v. Benoit, 452 Mass.
212, 226 (2008) ("privilege to use self-defense arises only in
circumstances in which the defendant uses all proper means to
avoid physical combat"). As the evidence stood at the close of
the Commonwealth's case, the acts against which the defendant
claimed to be defending herself occurred after she struck the
victim in the head with the hammer. The victim expressly
4 As the judge implicitly found and eventually instructed, the
standard for self-defense by deadly force applied, even though
death did not result. See Commonwealth v. Pike, 428 Mass. 393,
396 & n.3 (1998) (deadly force instruction proper where
defendant threw radio at victim because "[t]he relevant inquiry
is what level of force was used, not what the resulting injuries
were").
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testified that "[the defendant] hit [him] first" in response to
defense counsel's question that "at some point, [he was] on top
of her?" Any contrary conclusion as to the sequence of events
would be grounded in mere speculation. See Commonwealth v.
Naylor, 407 Mass. 333, 335 (1990), quoting Commonwealth v.
Costa, 360 Mass. 177, 184 (1971) ("A trial judge is not required
. . . to charge on an hypothesis which is not supported by the
evidence"). See also Commonwealth v. Camerano, 42 Mass. App.
Ct. 363, 367 (1997) (disbelief of witness's testimony does not
prove contrary proposition). There was no suggestion during the
victim's testimony that the defendant availed herself of any
means of retreat, for instance, by attempting to leave the
apartment, prior to hitting the victim. Nor did the officers
testify that the defendant made statements to that effect.
Thus, there was insufficient evidence to support the required
inference for a self-defense instruction. See Toon, 55 Mass.
App. Ct. at 651.
Moreover, since the only evidence of the sequence of events
established that the defendant was the first aggressor, self-
defense was not available. See Commonwealth v. Castillo, 485
Mass. 852, 856-857 (2020) ("A person who initiates a fight
cannot generally claim self-defense"); Commonwealth v. Espada,
450 Mass. 687, 694 (2008). See also Miranda, 484 Mass. at 813
(defendant's "combined failure to retreat and unnecessary
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escalation of conflict necessarily preclude[d] a finding of
self-defense"). Thus, the judge did not erroneously decline at
the close of the Commonwealth's case to instruct on self-
defense. 5
3. Ineffective assistance of counsel. The defendant
claims trial counsel's tactical decision to call the defendant
to testify, see Commonwealth v. Grissett, 66 Mass. App. Ct. 454,
459 (2006), was manifestly unreasonable when made and deprived
her of an otherwise available, substantial ground of defense.
See Commonwealth v. Housen, 458 Mass. 702, 711 (2011);
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When a claim
of ineffective assistance of counsel is raised for the first
time on direct appeal, we will only grant relief when that
ineffectiveness appears "indisputably" on the trial record.
Commonwealth v. Zinser, 446 Mass. 807, 811 (2006) (quotation
omitted). "Relief on a claim of ineffective assistance based on
the trial record [without the support of affidavits] is the
weakest form of such a claim because it is bereft of any
5 Concluding, as we do, that there was no error, we need and do
not address the defendant's claim that the judge's decision was
prejudicial insofar as it effectively forced her to testify.
Nonetheless, we note that a defendant's "need to testify or
present evidence in order to raise self-defense does not violate
State or Federal constitutional privileges against self-
incrimination. . . . For the Federal and State privileges
against self-incrimination to attach, the State must compel the
defendant to produce testimonial evidence." Toon, 55 Mass. App.
Ct. at 651 n.12 (and cases cited).
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explanation by trial counsel for [their] actions and [is]
suggestive of strategy contrived by a defendant viewing the case
with hindsight" (quotation omitted). Commonwealth v. Davis, 481
Mass. 210, 222 (2019).
The defendant fails to show trial counsel's judgment
relating to his decision to call the defendant to testify was
"manifestly unreasonable" when made. See Commonwealth v.
Henley, 488 Mass. 95, 134 (2021) (under Saferian test, "[a]
strategic or tactical decision by counsel will not be considered
ineffective assistance unless the decision was manifestly
unreasonable when made" [quotation omitted]). The
Commonwealth's case largely rested on the credibility of the
victim. After the judge concluded that self-defense was not
raised during the Commonwealth's case, it is unclear how defense
counsel could have raised the defense and challenged the
victim's credibility without calling the defendant to testify.
See Commonwealth v. Sharpe, 454 Mass. 135, 147 (2009) (not
manifestly unreasonable to call defendant to testify where it
was "only realistic chance" of obtaining lesser verdict).
Commonwealth v. Lally, 473 Mass. 693 (2016), on which the
defendant relies, is inapposite. The decision in that case was
based on a review of defense counsel's testimony at a hearing on
a motion for new trial -- "[t]he preferred method for raising
claims of ineffective assistance of trial counsel," Davis, 481
11
Mass. at 222 -- which allowed the reviewing court to conclude
the defendant's decision to testify was voluntary and informed.
Lally, supra at 713-714. We have no such evidence here.
Without an affidavit from either defense counsel or the
defendant herself, we simply have no way of knowing, for
instance, what prior conversations they had about the
defendant's choice to testify; the defendant's reasons for
testifying; any information as to the mental health issues the
defendant now claims impacted the validity of her decision to
testify; or even if the defendant perhaps decided to testify
against defense counsel's advice. See Commonwealth v. Kelly, 57
Mass. App. Ct. 201, 209 (2003), quoting Strickland v.
Washington, 466 U.S. 668, 688-691 (1984) ("Inquiry into
counsel's conversations with the defendant may be critical to a
proper assessment of counsel's . . . decisions").
As to the defendant's claims that defense counsel should
have requested more time to consult with his client or asked for
the judge to conduct a voir dire into the defendant's decision,
there is no reason on this record to think these were not
strategic decisions on the part of defense counsel. See
Commonwealth v. Glacken, 451 Mass. 163, 170 (2008) ("Because of
the delicate balance between a defendant's right to testify on
his own behalf and his equally fundamental right not to testify
. . . [s]uch a colloquy might give the defendant the impression
12
that he was being urged by the judge to testify" [quotation
omitted]). Accordingly, the defendant has not shown that trial
counsel's performance fell "measurably below that which might be
expected from an ordinary fallible lawyer," or that counsel's
decision likely "deprived the defendant of an otherwise
available, substantial ground of defence." Saferian, 366 Mass.
at 96.
Judgments affirmed.
By the Court (Neyman,
Desmond & Smyth, JJ. 6),
Clerk
Entered: September 8, 2023.
6 The panelists are listed in order of seniority.
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