Commonwealth v. Leonel A. Noj.

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

23-P-1253

COMMONWEALTH

vs.

LEONEL A. NOJ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the District Court, a jury convicted the

defendant, Leonel A. Noj, of assault and battery on a police

officer 1 (ABPO) and resisting arrest. 2 The defendant appeals,

arguing he is entitled to a new trial due to ineffective

assistance of counsel. While the preferred method of resolving

ineffective assistance claims is through a motion for a new

trial, the record is sufficient here for us to determine that

defendant's trial counsel was ineffective in failing to develop

a defense and challenge the Commonwealth's case. As such, we

1 G. L. c. 265, § 13D.

2 G. L. c. 268, § 32B.
vacate the judgments and remand to the District Court for a new

trial.

Background. On September 21, 2021, at around 1 A.M.,

Norwood police officers Ivory and O'Brien, along with Sergeant

Joseph, responded to an apartment building to investigate a

report of domestic violence. The defendant, a resident of the

building, was not suspected of being involved in the domestic-

violence incident. During the investigation, Officer Ivory

attempted to speak with the defendant as he was sitting on the

steps in the hallway, but the defendant was uncooperative.

Officer Ivory and Sergeant Joseph both testified at trial that

they suspected the defendant was intoxicated, as they observed

that the defendant's eyes were bloodshot and that he smelled

like alcohol when he spoke.

At some point, the officers turned their attention from the

domestic violence incident to the defendant. The officers told

the defendant that he "couldn't stay the night" alone, in his

own apartment, for his own safety due to his level of

intoxication. When the officers instructed the defendant to

call someone to make alternative sleeping arrangements for the

evening, the defendant refused. He instead walked back into his

apartment, retrieved another beer, and sat on his couch. One of

the officers testified that at this point, the officers decided

to place the defendant in protective custody. As Officer Ivory

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attempted to put the defendant in handcuffs, the defendant

allegedly "reached out his arm . . . and gave him a push in his

stomach area"; this conduct formed the basis for the ABPO

charge. In response, Officer Ivory "utilized an armbar

takedown" on the defendant to force him from the couch to the

floor. As the defendant struggled, Officer Ivory and Sergeant

Joseph placed handcuffs on the defendant.

Discussion. 1. Review of ineffective assistance claim on

direct appeal. "[T]he preferred method for raising a claim of

ineffective assistance of counsel is through a motion for a new

trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). "An

exception to [this] rule is that a 'claim of ineffective

assistance may be resolved on direct appeal of the defendant's

conviction when the factual basis of the claim appears

indisputably on the trial record.'" Id. at 811, quoting

Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

While "occasions when a court can resolve an ineffective

assistance claim on direct appeal are exceptional," this is such

a case where the trial record is sufficient to resolve the

defendant's claim (citation omitted). Commonwealth v. McIntosh,

78 Mass. App. Ct. 37, 42 (2010). See Commonwealth v. Livington,

70 Mass. App. Ct. 745, 748-749 (2007); Commonwealth v. Frisino,

21 Mass. App. Ct. 551, 555-556 (1986).

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2. Ineffective assistance. To demonstrate ineffective

assistance of counsel, the defendant must show (1) performance

on the part of counsel falling measurably below that of an

ordinary, fallible attorney, that (2) effectively deprived the

defendant of a substantial ground of defense. See Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974). For the first prong,

"[w]here a claim of ineffective assistance of counsel is based

on a tactical or strategic decision, the test is whether the

decision was manifestly unreasonable when made" (quotation and

citation omitted). Commonwealth v. Ng, 489 Mass. 242, 250

(2022).

The defendant argues his trial counsel's performance was

ineffective because he did not pursue a viable defense. During

the trial, the Commonwealth called two witnesses: Officer Ivory

and Sergeant Joseph; the defendant did not call any witnesses to

testify.

For the defendant's first charge, ABPO, trial counsel, in

his opening statement, appeared to signal a defense that the

defendant's contact with Officer Ivory was not intentional. See

G. L. c. 265, § 13D. 3 Specifically, counsel suggested to the

3 To establish assault and battery on a police officer, the
Commonwealth must prove (1) "that the defendant touched the
victim without having any right or excuse to do so"; (2) "the
defendant's touching . . . was intentional"; (3) "the officer
was engaged in the performance of his duties at the time [of
such assault and battery]"; and (4) "the defendant [knew] that

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jury that the defendant was "not able to properly balance

himself," which "le[d] to a count of an assault and battery on a

police officer." In cross-examining the officers, however,

trial counsel only asked one question pertaining to whether the

defendant's touching was unintentional, did not seek to develop

the evasive answer he received, and appeared to abandon the

unintentional-contact defense in his closing. As a result,

defendant's trial counsel left him "denuded of a defense" as to

the ABPO charge (citation omitted). 4 See Commonwealth v. Farley,

432 Mass. 153, 156 (2000), S.C., 443 Mass. 740, cert. denied,

546 U.S. 1035 (2005) ("Trial counsel put forth a defense and

then failed to develop this defense through evidence, cross-

examination, or in summation. He thereby effectively left the

defendant 'denuded of a defense'" [citation omitted]).

As to the defendant's resisting arrest charge, his trial

counsel appeared to pursue a defense that (1) Officer Ivory

restrained the defendant for the purposes of putting him in

protective custody, not to effect an arrest; and (2) the

defendant was not aware he was being arrested, an essential

the victim was an officer engaged in the performance of his
duties" (quotations and citations omitted). Commonwealth v.
Tyson, 104 Mass. App. Ct. 739, 741-742 (2024).

4 The trial judge properly instructed the jury that "[t]he
opening statements and the closing arguments of the lawyers are
not evidence, and they're not a substitute for the evidence."

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element of the charge. See Commonwealth v. Grandison, 433 Mass.

135, 145 (2001) ("An arrest occurs where there is (1) 'an actual

or constructive seizure or detention of the person, [2]

performed with the intention to effect an arrest and [3] so

understood by the person detained'" [citation omitted]). This

inference is supported by trial counsel's motion for a required

finding at the close of the Commonwealths' case, in which he

argued that the evidence failed to establish the defendant was

aware he was being arrested. In response, the Commonwealth

asserted that the defendant had been placed under arrest after

allegedly assaulting Officer Ivory.

Despite raising this issue in the motion for a required

finding, counsel failed to develop it during trial. In his

opening, he made no mention of whether the defendant understood

he was being arrested. During cross-examination of Officer

Ivory, counsel asked a few questions suggesting that even though

the defendant was intoxicated, he was in a safe place. These

questions, however, were not clearly tied to the legal

distinction between an arrest and protective custody, nor did

they advance a defense based on the defendant's lack of

awareness he was being arrested.

Moreover, Sergeant Joseph testified on direct examination

that he told the defendant he was placing him arrest before the

alleged assault occurred. Trial counsel did not challenge this

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assertion despite its significance to the resisting arrest

charge. After the judge denied the motion for a required

finding, trial counsel did not return to this defense in his

closing. Instead, he appeared to concede the point, stating

"there's an encounter where [the defendant is] placed under

arrest." See Commonwealth v. Triplett, 398 Mass. 561, 568-569

(1986) ("A summation by defense counsel which leaves a client

denuded of a defense constitutes ineffective assistance of

counsel" [quotation and citation omitted]); Commonwealth v.

Westmoreland, 388 Mass. 269, 274 (1983) (lawyer's concession of

viable defense that defendant lacked requisite intent "at

closing argument . . . was behavior which falls 'measurably

below that which might be expected from an ordinary fallible

lawyer'" [citation omitted]).

In trial counsel's closing, he presented to the jury one

"theory" of defense -- "the police have gone beyond the bounds

here." This strategy was manifestly unreasonable because after

failing to develop and abandoning two other defenses, trial

counsel pursued a defense that, even if the jury were to believe

it, would not have led to an acquittal on either charge. For

both charges, the police "[going] beyond the bounds" would not

negate an essential element of either offense. See Commonwealth

v. McCrae, 54 Mass. App. Ct. 27, 30 (2002) ("counsel's

performance fell well below that expected of the ordinarily

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fallible lawyer, in that counsel essentially abandoned a viable

defense in favor of a trial strategy that was manifestly

unreasonable" [quotation and citation omitted]). See also

Commonwealth v. Kirwan, 448 Mass. 304, 319 (2007) ("Jury

nullification is inconsistent with a jury's duty to return a

guilty verdict of the highest crime proved beyond a reasonable

doubt").

As to prejudice, trial counsel's strategy likely deprived

the defendant of an available and substantial defense. See

Saferian, 366 Mass. at 96; Frisino, 21 Mass. App. Ct. at 555-

556. The only evidence presented against the defendant on both

charges was the testimony of two police officers who took the

unusual action of attempting to remove an individual, a forty-

one year old man, from his own home and into custody at a police

station for "his safety" due to his consumption of alcohol. In

light of the circumstances surrounding that decision --

including the apparent lack of probable cause to take the

defendant into custody -- there was a clear basis for

challenging the officers' credibility. See Commonwealth v.

O'Brien, 434 Mass. 615, 622 (2001) ("To take someone into

protective custody, officers need only probable cause to believe

that the person is incapacitated" [quotation and citation

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omitted]). 5 A defense theory focused on police bias was

therefore both substantial and available. See Commonwealth v.

Kindell, 84 Mass. App. Ct. 183, 187 (2013) ("Cross-examination

as to bias is of vital importance because the weight that the

jury give to the testimony of the witness may depend entirely on

their belief that the witness has no motive to lie"). With

probable cause called into question, the officers would have

been obligated to provide justification as to why they were

attempting to remove a man from his home who was not the subject

of the 911 call that had brought them to the apartment building

and posed no apparent danger to himself or anyone else. A jury

might reasonably have concluded that these officers were

retaliating because they believed the defendant had spoken back

to them and, as a result, their testimony about both the

touching and informing the defendant he was under arrest was not

credible.

5 "Incapacitated" is defined by G. L. c. 111B, § 3, as "the
condition of an intoxicated person who . . . is (1) unconscious,
(2) in need of medical attention, (3) likely to suffer or cause
physical harm or damage property, or (4) disorderly."
Intoxication alone is not enough. Both officers testified the
defendant had bloodshot, glassy eyes and smelled like alcohol,
but neither offered specific facts indicating he needed medical
attention or posed a threat to himself or another person. In
fact, the officers did not note any difficulties the defendant
had in speaking to them or walking around, nor did either
testify that the defendant had caused danger to himself or
anyone else prior to their arrival or while they were on scene.

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The officers' actions would have become even more dubious

in the eyes of a jury if trial counsel had developed the

officers' testimony as to the defendant's alleged instigative

conduct towards them, including that the defendant asked to

speak to a supervisor upon their arrival; "made some wise

comments that he wasn't going to listen [to the officers]"; and,

reached for a beer when the officers had told him to retrieve

his phone. Trial counsel should have developed this testimony

to show bias and a potential alternative motive for the

defendant's arrest. Where the officers likely lacked probable

cause, and defendant's trial counsel failed to cross-examine the

police witnesses for bias, it is evident that "better work might

have accomplished something material for the defense."

Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

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Conclusion. The judgments are vacated, and the verdicts

are set aside.

So ordered.

By the Court (Rubin,
D'Angelo & Smyth, JJ. 6),

Clerk

Entered: June 16, 2025.

6 The panelists are listed in order of seniority.

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