Commonwealth v. Michael Marple.

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-223

COMMONWEALTH

vs.

MICHAEL MARPLE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order denying his fourth

motion for a new trial, filed in 2021. 1 The motion was supported

by affidavits and alleged that trial counsel's advice at the

plea stage, and his later decisions not to object to the

prosecutor's closing argument or request certain jury

instructions, was conduct "falling measurably below that which

might be expected from an ordinary fallible lawyer" which

"likely deprived the defendant of an otherwise available,

1 The defendant's first motion for a new trial, filed after his
conviction of murder in the second degree was affirmed on direct
appeal, Commonwealth v. Marple, 26 Mass. App. Ct. 150 (1988),
was denied by the trial judge in a decision that a different
panel of this court affirmed. Commonwealth v. Marple, 35 Mass.
App. Ct. 1103 (1993). In 2009 and 2010, the defendant filed
second and third motions for a new trial, which were denied in
orders that another panel of this court affirmed in a
consolidated appeal. Commonwealth v. Marple, 81 Mass. App. Ct.
1124 (2012).
substantial ground of defence." Commonwealth v. Saferian, 366

Mass. 89, 96 (1974). A Superior Court judge denied the motion

without evidentiary hearing, Mass. R. Crim. P. 30 (c) (3), as

appearing in 435 Mass. 1501 (2001), after concluding that it

failed to raise a substantial question under the first prong of

Saferian. See Commonwealth v. Comita, 441 Mass. 86, 90 (2004)

(defendant's burden to prove both prongs). Seeing no error of

law or abuse of discretion by the judge, Commonwealth v. Barry,

481 Mass. 388, 401 (2019); Commonwealth v. Grace, 397 Mass. 303,

307 (1986), and no substantial risk of a miscarriage of justice

from counsel's supposed failures, Commonwealth v. Glover, 459

Mass. 836, 846 (2011), we affirm.

The judge correctly discerned that the affidavits failed to

raise a substantial issue regarding trial counsel's advice to

"roll[] big dice" because the case "was in the bag" and "a sure

thing" (though the judge did not believe trial counsel said

that). To quote a prior panel, see note 1, supra, "The decision

to pursue an 'all-or-nothing' strategy, in hopes of gaining an

acquittal, is not manifestly unreasonable." Commonwealth v.

Marple, 81 Mass. App. Ct. 1124 n.1 (2012). Counsel's "simple

misjudgment as to the strength of the prosecution's case [and]

the chances of acquittal," or the fact that the strategy did not

work, does not "give rise to a claim of ineffective assistance

of counsel" (citation omitted). Commonwealth v. Mahar, 442

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Mass. 11, 17 (2004). The defendant's wish "to second guess his

decision and counsel's advice in light of subsequent adverse

events" is understandable, but "[w]e do not view such advice

retrospectively through the lens of subsequent events that may

have proved it wrong." Id.

We have no basis to question the judge's assessment of the

prosecutor's closing argument where the defendant apparently

provided the seven volumes of trial transcript to the motion

judge but did not, as was his obligation, supply the court with

an electronically formatted transcript or certify that a copy

was available in the appellate court. Mass. R. A. P. 9 (d) (1)

and (d) (3), as appearing in 481 Mass. 1615 (2019). See

Commonwealth v. Renderos, 440 Mass. 422, 425 (2003) (closing

arguments reviewed in light of entire argument as well as

judge's instructions to jury and evidence at trial). For this

same reason, we cannot quarrel with the judge's determination

that a "separate consideration" instruction was unnecessary

because "[t]he jury obviously understood that Marple was the

only defendant on trial" and "[t]he joint enterprise charge

fully explained that the government must prove the individual

defendant's personal participation and not just his mere

presence." See Commonwealth v. Arias, 84 Mass. App. Ct. 454,

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465 (2013) (review of claimed jury instruction error requires

evaluation of instructions as a whole).

Order denying fourth motion
for new trial affirmed.

By the Court (Blake, Walsh &
Hershfang, JJ. 2),

Clerk

Entered: August 21, 2023.

2 The panelists are listed in order of seniority.

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