Commonwealth v. Viriato F. Depina.

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-868

COMMONWEALTH

vs.

VIRIATO F. DEPINA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a District Court judge's denial

of his motion for a new trial.1 We affirm.

The defendant claims that his trial counsel and first

appellate counsel were ineffective.2 Generally, to prevail on an

ineffective assistance of counsel claim a defendant must

demonstrate that, but for his counsel's "serious incompetence,

inefficiency, or inattention," Commonwealth v. Saferian, 366

Mass. 89, 96 (1974), "the result of the proceeding would have

been different," Commonwealth v. Mahar, 442 Mass. 11, 15 (2004),

1 In a margin notation, the judge denied the motion and wrote
"(evidentiary hearing)"; however, the parties agree the hearing
was not evidentiary. Nothing turns on this discrepancy.
2 Following a jury trial, the defendant was convicted of

aggravated assault and battery, and assault and battery by means
of a dangerous weapon. A panel of this court affirmed the
convictions. See Commonwealth v. Depina, 87 Mass. App. Ct. 1107
(2015).
quoting Strickland v. Washington, 466 U.S. 668, 694 (1984).

When assessing whether appellate counsel was ineffective, "we

focus on whether appellate counsel 'failed to raise a

significant and obvious issue . . . which . . . may have

resulted in a reversal of the conviction, or an order for a new

trial.'" Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 282

(2014), quoting Commonwealth v. Sowell, 34 Mass. App. Ct. 229,

232 (1993). The defendant identifies three areas wherein he

claims his attorneys were ineffective.3 We address each in turn.

1. Use of the term victim. The defendant claims that his

trial counsel was ineffective for failing to object to the use

of the term "victim" to describe M.O., and that appellate

counsel was ineffective for failing to raise this issue in his

direct appeal. In pertinent part, the complaint alleged that

the defendant assaulted and beat M.O, who sustained significant

injuries.4

During the trial, the prosecutor and Commonwealth witnesses

referred to M.O. as the victim multiple times. As a general

rule, "the better practice is for the prosecutor, defense

3 The record does not contain an affidavit from the defendant's
trial counsel or first appellate counsel. See Commonwealth v.
Goodreau, 442 Mass. 341, 354 (2004) (judge may consider lack of
affidavit from counsel in rejecting claim of ineffective
assistance).
4 M.O. suffered a fractured skull, concussion, severe abrasions,

and internal bleeding.

2
counsel, the judge, and all of the witnesses to refrain from

describing the person [injured] as the victim." Commonwealth v.

Cadet, 473 Mass. 173, 181 (2015). Here, M.O. insisted that she

-- not the defendant -- was the cause of her injuries, and that

she had not been assaulted. The jury were not required to

believe this testimony. See Commonwealth v. Lao, 443 Mass. 770,

779 (2005). "We assume 'a certain degree of jury

sophistication' . . . and do not think it likely that the jury

were swayed" by the use of the term victim. Commonwealth v.

Cadet, 473 Mass. at 181, quoting Commonwealth v. Kozec, 399

Mass. 514, 517 (1987). In the circumstances of this case, the

use of the word victim did not create a substantial risk of a

miscarriage of justice and therefore trial counsel was not

ineffective for failing to object to it; appellate counsel was

also not ineffective for failing to raise the issue in the

direct appeal. See Breese v. Commonwealth, 415 Mass. 249, 252

(1993) (if defendant received effective assistance of counsel at

trial, no argument appellate counsel was ineffective).

2. Testimony regarding scuff marks. The defendant next

argues that his trial attorney was ineffective for failing to

object to a police detective's opinion as to the source of scuff

marks on M.O.'s shoe.5 On direct examination, the detective

5 The shoe was entered in evidence without objection.

3
testified that the shoe had "a scuff down the side and some

black markings on it." When asked whether he was "able to make

any opinion on the scuff marks on that shoe," the detective said

that "[i]t was like [the shoe] was dragged across the pavement."

Even if we assume that an objection to the detective's

testimony would have been sustained by the judge, its admission

did not create a substantial risk of a miscarriage of justice.

Through cross-examination, trial counsel effectively raised

doubt about the source and timing of the scuff marks, thereby

diminishing any prejudice to the defendant. To the extent that

this was a tactical decision, it was not manifestly unreasonable

when made, and therefore trial counsel was not ineffective. See

Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). And,

because trial counsel was not ineffective, neither was appellate

counsel. See Breese, 415 Mass. at 252.

3. Prosecutor's closing argument. Finally, the defendant

contends that his trial counsel was ineffective for failing to

object to the prosecutor's closing argument because the

prosecutor misstated the reasonable doubt standard, improperly

vouched for Commonwealth witnesses, and misstated the evidence.

We are guided by the well-known proposition that "[r]emarks made

during closing arguments are considered in the context of the

whole argument, the evidence admitted at trial, and the judge's

instructions to the jury." Commonwealth v. Philbrook, 475 Mass.

4
20, 28 (2016), quoting Commonwealth v. Sylvia, 456 Mass. 182,

193 (2010). We presume that the jury follows all of the judge's

instructions. See Commonwealth v. Cheremond, 461 Mass. 397, 414

(2012).

a. Reasonable doubt standard. The defendant takes issue

with the prosecutor's statement that "even if there's some part

of you that wants to give [the defendant] the benefit of the

doubt, just some small part, you can't. Because, his behavior

was so wanton and reckless it caused serious injury to [M.O.]."

This statement is problematic and was better left unsaid.

However, shortly before the challenged statements, the

prosecutor explicitly acknowledged that she bore the burden of

proof beyond a reasonable doubt. Further, the judge gave clear

and precise instructions to the jury on the purpose of closing

arguments and the burden of proof. Taken as a whole, the

challenged portions of the prosecutor's closing did not create a

substantial risk of a miscarriage of justice. See Commonwealth

v. Jones, 471 Mass. 138, 148 (2015).

b. Vouching. The defendant contends that the prosecutor

improperly vouched for the Commonwealth's case and witnesses.6

6 The challenged remarks included that there is "no other
possible reason for why this happened"; "their story -- the
story that they want you to believe -- does not make sense.
It's improbable, and it's ridiculous"; "[t]he Commonwealth
believes that we have proven beyond a reasonable doubt that [the
defendant] did this intentionally"; and "why would these two

5
Vouching occurs when "an attorney expresses a personal belief in

the credibility of a witness or indicates that . . . she has

knowledge independent of the evidence before the jury."

Commonwealth v. Kee, 449 Mass. 550, 560 (2007), quoting

Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). None of the

challenged remarks suggested that the prosecutor had personal

knowledge of the witnesses' credibility or independent knowledge

of evidence that was not before the jury. See Commonwealth v.

Grier, 490 Mass. 455, 471 (2022). The remarks are best

described as the prosecutor's attempt to marshal the evidence

and suggest to the jury the conclusion they should draw from it,

all of which is permissible. See Commonwealth v. Rutherford,

476 Mass. 639, 643 (2017).

c. Misstating the evidence. Finally the defendant claims

that the prosecutor misstated the evidence or referenced

evidence not in the record when she argued that the jury should

consider the age difference between the defendant and M.O. when

assessing whether the defendant had influenced M.O.'s testimony.

The prosecutor was permitted to ask the jury to draw an

inference that the defendant influenced M.O.'s testimony based

on the age disparity between the two and the nature of their

[witnesses], who have no idea who these individuals are, why
would they testify to that yesterday? They testified to it,
because it's true."

6
dating relationship. See Commonwealth v. Diaz, 478 Mass. 481,

487 (2017), quoting Commonwealth v. Burgess, 450 Mass. 422, 437

(2008) ("A prosecutor may attempt to 'fit all the pieces of

evidence together' by suggesting what 'conclusions the jury

should draw from the evidence'").

Trial counsel was not ineffective for failing to object to

the prosecutor's closing argument; nor was appellate counsel

ineffective for failing to raise it in the defendant's direct

appeal. See Breese, 415 Mass. at 252.

Order denying motion for a
new trial affirmed.

By the Court (Milkey, Blake &
Sacks, JJ.7),

Clerk

Entered: September 28, 2023.

7 The panelists are listed in order of seniority.

7