Commonwealth v. Joseph Green.

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

24-P-504

COMMONWEALTH

vs.

JOSEPH GREEN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial, a District Court judge convicted the

defendant of vandalizing property in violation of G. L. c. 266,

§ 126A. In a well-reasoned decision, the same judge denied the

defendant's motion for a new trial, in which the defendant

claimed ineffective assistance of counsel. In this appeal, the

defendant contends that the motion judge erred in denying his

motion for a new trial because his trial counsel made a

manifestly unreasonable tactical decision to introduce a video

recording at trial.1 We affirm.

1A judge allowed the defendant to file a late notice of
appeal from his conviction, but the defendant makes no separate
argument as to the underlying conviction on appeal.
Background. The Commonwealth presented the following

evidence at trial. On October 4, 2021, at about 5 P.M., the

victims left their home in Billerica to go out to dinner for

their wedding anniversary. When they returned home around

9 P.M., the victims saw paint on their driveway and on their

son's car, which was parked in the driveway, along with a can of

paint. Surveillance camera video footage taken from the front

of the victims' home (Jackson video) showed a white sports

utility vehicle (SUV) driving past the victims' house as a paint

can was thrown on the driveway. The SUV appeared to approach

the home slowly, and, after the paint can was thrown, accelerate

away. The video footage was not time stamped and the SUV's

license plate was not discernible from the video footage.

Surveillance camera video footage (Ferrari video) from a

neighbor's house four doors away from the victims' depicted a

white SUV driving past the neighbor's house at 8:03 P.M. and

8:17 P.M.

Shortly after speaking with the victims that night,

Billerica police reviewed screenshots from the Ferrari video

that captured the license plate of the white SUV. The SUV was

registered to the defendant, who had lived next door to the

victims until 2013, but at the time of the incident lived about

two miles away. Officers went to the defendant's home, where

they saw the same white SUV parked in the driveway. The

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defendant admitted to police that he drove the SUV in the

victims' neighborhood earlier that evening. He appeared nervous

and offered conflicting explanations for his presence in the

victims' neighborhood.

The defendant introduced surveillance footage (Mackenzie

video) from the house across the street from the victims' home.

The video footage was not time stamped, and no paint can was

visible. The video recording was about twenty minutes long and

depicted four white or light-colored vehicles driving past the

victims' home. As the fourth vehicle drove past the home, a

faint noise can be heard on the video recording.

Discussion. We review a judge's decision on a motion for a

new trial for error of law or abuse of discretion. See

Commonwealth v. Tavares, 491 Mass. 362, 365 (2023). In doing

so, "[w]e afford particular deference to a decision on a motion

for a new trial based on claims of ineffective assistance where

the motion judge was, as here, the trial judge." Commonwealth

v. Martin, 467 Mass. 291, 316 (2014). To prevail on his claim

of ineffectiveness of counsel, the defendant must show:

(1) that counsel's conduct fell "measurably below that which

might be expected from an ordinary fallible lawyer"; and

(2) that this conduct "likely deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A strategic

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or tactical decision by counsel will not be considered

ineffective assistance unless the decision was manifestly

unreasonable when made" (quotation and citation omitted).

Commonwealth v. Watson, 455 Mass. 246, 256 (2009). The

manifestly unreasonable test is "a search for rationality in

counsel's strategic decisions." Commonwealth v. Kolenovic, 471

Mass. 664, 674 (2015).

Here, the defendant asserts that trial counsel's

introduction of the Mackenzie video, which lacked time stamps,

when compared with the time stamped Ferrari video, permitted the

prosecutor to argue that the fourteen-minute timespan between

vehicles on the Mackenzie video corresponded to the defendant's

SUV passing at 8:03 P.M and 8:17 P.M. on the Ferrari video, and

a "metallic thud" when the fourth vehicle passed by corroborated

that the defendant threw a paint can. Thus, he argues, trial

counsel's decision to offer the Mackenzie video was manifestly

unreasonable.

Although trial counsel averred in support of the

defendant's motion for a new trial that he would not have

introduced the Mackenzie video if he had heard the "metallic

thud" before trial, his decision to offer the evidence was a

rational tactical decision at the time. See Kolenovic, 471

Mass. at 674. The Mackenzie video established that the Jackson

video was captured during the time period that several white or

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light-colored vehicles drove past the victims' home. The

Mackenzie video availed trial counsel of the reasonable argument

that, because the Jackson video did not identify the white SUV's

license plate and did not have time stamps, the paint can could

have been thrown from any of the white vehicles that passed the

victims' home that night. In closing, trial counsel extensively

argued this point. Additionally, although the defendant argues

on appeal that the purported "thud" was crucial to the

Commonwealth's case, its significance is ambiguous. Many sounds

were audible on the Mackenzie video, and the sound of the "thud"

was not the same as the sound of the paint can hitting the

driveway on the Jackson video. That trial counsel did not hear

the faint noise before introducing the Mackenzie video does not

evince his ineffectiveness. Rather, any ordinary fallible

lawyer might not have heard the noise or assigned it particular

significance. We therefore agree with the motion judge that

trial counsel's decision to introduce the Mackenzie video was

not manifestly unreasonable. See Kolenovic, supra at 673 ("we

conduct our review with some deference to avoid characterizing

as unreasonable a defense that was merely unsuccessful"

[citation omitted]).

We also disagree with the defendant's further contention

that he was prejudiced by trial counsel's ineffectiveness. He

asserts that without the Mackenzie video, the evidence would

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have been insufficient for any rational trier of fact to convict

him.2 However, there was evidence that the defendant knew the

victims, the defendant twice drove his white SUV past the

victims' home, the paint was thrown from a white SUV, and the

defendant was evasive when asked why he had driven past the

home. The Mackenzie video did not add appreciably to the

Commonwealth's case.

We therefore conclude that the judge did not err or abuse

his discretion by denying the defendant's motion for a new

trial. See Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722

The defendant also argues that the prosecution could not
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have authenticated the Mackenzie video because no available
eyewitness could have testified that it was a fair and accurate
depiction of the scene. To the contrary, the video footage
contained corroborating details, such as the appearance of two
white SUVs passing at the same interval as depicted on the
Ferrari video, and one of the victims testified that the video
footage depicted her home as seen from across the street. See
Commonwealth v. Davis, 487 Mass. 448, 466 (2021) (evidence may
be authenticated by circumstantial evidence alone, including its
appearance, content, or other distinctive characteristics).

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(2012) ("a defendant must prove both deficient performance and

prejudice").

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Singh, Grant &
Brennan, JJ.3),

Clerk

Entered: April 11, 2025.

3 The panelists are listed in order of seniority.

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