Commonwealth v. Jason M. Ostrander.

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-353

COMMONWEALTH

vs.

JASON M. OSTRANDER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2022, after a jury trial in the Superior Court, the

defendant was convicted of witness intimidation.1 On appeal, he

claims that there was insufficient evident to support his

witness intimidation conviction, and that he received

ineffective assistance from his trial counsel. We affirm.

1. Witness intimidation. "When analyzing whether the

record evidence is sufficient to support a conviction, an

appellate court is not required to 'ask itself whether it

believes that the evidence at the trial established guilt beyond

a reasonable doubt.' . . . Rather, the relevant 'question is

whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

1 The defendant was acquitted of a separate charge of
strangulation.
the essential elements of the crime beyond a reasonable doubt'"

(citations omitted). Commonwealth v. Rocheteau, 74 Mass. App.

Ct. 17, 19 (2009). We add that "circumstantial evidence is

competent to establish guilt beyond a reasonable doubt."

Commonwealth v. Bush, 427 Mass. 26, 30 (1998). See Commonwealth

v. Casale, 381 Mass. 167, 173 (1980) ("inferences drawn by the

jury need only be reasonable and possible and need not be

necessary or inescapable").

When evaluating sufficiency, the evidence must be reviewed

with specific reference to the substantive elements of the

offense. See Jackson v. Virginia, 443 U.S. 307, 324 n.16

(1979); Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979).

To establish the defendant's guilt of intimidation of a witness

under G. L. c. 268, § 13B, the Commonwealth was required to

prove "that the defendant (1) willfully; (2) threatened,

intimidated, or harassed; (3) a witness in a criminal proceeding

of any type; (4) with the intent to impede or interfere with a

criminal investigation or proceeding" (quotation and citation

omitted). Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 304

(2023). The defendant claims that there was insufficient

evidence that he either explicitly or implicitly threatened,

intimidated, or harassed the victim. Although we agree that the

defendant did not explicitly threaten the victim, we conclude

that there was sufficient evidence to support his conviction

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where he willfully intimidated the victim -- the Commonwealth's

key witness -- with the intent to impede or interfere with his

criminal prosecution at trial.

For purposes of G. L. c. 268, § 13B, "intimidation" means

"acts or words that would instill fear in a reasonable person."

Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010).

Here, the victim testified that there was "constant fighting"

during their four year long relationship, and that on several

occasions, the defendant had stated, "I can get away with

getting rid of you and nobody would ever know the difference."

See Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007)

("the jury may consider the context in which the allegedly

threatening statement was made and all of the surrounding

circumstances" [citation omitted]).

While the defendant was in jail awaiting trial, he sent the

victim a four-page letter in which he blamed the victim for his

incarceration and later stated that the prosecution "has no case

cause [sic] no physical evidence and your [sic] not going to

show[,] right?" In the light most favorable to the

Commonwealth, and in context with the possessive and controlling

nature of the relationship the defendant had with the victim,

including his prior threats of violence toward her, the

defendant's letter would have made a reasonable person fearful

of the consequences of appearing at the trial. See Gardner, 102

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Mass. App. Ct. at 305 (sufficient evidence of witness

intimidation based on letters from incarcerated defendant to

victim, with whom he had an abusive and controlling

relationship, which "included repeated references to the victim

as both the reason for his incarceration and prosecution and the

only potential key to his freedom"). The clear implication of

the letter, against the backdrop of the defendant's relationship

with the victim, was to threaten the victim to not appear at

trial to testify against the defendant. See Commonwealth v.

Perez, 460 Mass. 683, 703-704 (2011). In this light, a rational

jury could have concluded that the defendant willfully

intimidated the victim with the intent to obstruct his

prosecution at trial.

2. Ineffective assistance of counsel. In his motion for a

new trial, the defendant claimed that defense counsel provided

ineffective assistance based on his failure to request that

certain references in the defendant's letter to the victim be

redacted because they indicated the defendant was being held in

custody prior to his trial. We disagree.

We review the denial of a motion for a new trial for "'a

significant error of law or other abuse of discretion,'

Commonwealth v. Forte, 469 Mass. 469, 488 (2014), quoting

Commonwealth v. Grace, 397 Mass. 303, 307 (1986), granting

'special deference' to the rulings of a motion judge who, like

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the judge here, also presided at trial." Commonwealth v.

Bonnett, 472 Mass. 827, 833 (2015). Where the defendant claims

ineffective assistance of counsel, a new trial is warranted only

if the defendant shows that "there has been serious

incompetency, inefficiency, or inattention of counsel --

behavior of counsel falling measurably below that which might be

expected from an ordinary fallible lawyer -- and, if that is

found, then, typically, whether it has likely deprived the

defendant of an otherwise available, substantial ground of

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

"An attorney's tactical decision amounts to ineffective

assistance of counsel only if it was manifestly unreasonable

when made." Commonwealth v. Frank, 433 Mass. 185, 190 (2001),

quoting Commonwealth v. Coonan, 428 Mass. 823, 827 (1999).

Under the first prong of Saferian, "[i]f the record reveals

sound tactical reasons for counsel's decisions, an ineffective

assistance of counsel claim will not succeed." Commonwealth v.

Gonzalez, 443 Mass. 799, 809 (2005). "The critical inquiry is

whether counsel's choice was an informed and reasonable

decision; a consideration to be assessed in light of his over-

all representation of the defendant at the trial." Frank, supra

at 192.

Prior to trial, defense counsel moved in limine to exclude

entirely the defendant's letter to the victim because it

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contained statements that indicated the defendant had been held

in pretrial custody. The trial judge denied that motion but

gave defense counsel the opportunity to redact the letter prior

to it being admitted in evidence. Defense counsel declined the

judge's offer. As he explained in his affidavit accompanying

the motion for a new trial, he was concerned that the redacted

portions would leave several gaps in the letter that would raise

more questions for the jury than if it was left unredacted, and

he believed the jury would still intuit that the defendant wrote

the letter from jail based on its entire context.2 As the motion

judge -- who was also the trial judge to whom we owe special

deference -- concluded, even if this was not the best strategy,

it was not irrational, and the defendant has failed to establish

that it was manifestly unreasonable. See Frank, 433 Mass. at

192.

Even if trial counsel's choice was manifestly unreasonable,

the defendant cannot satisfy the second prong of Saferian, i.e.,

2 In particular, in one sentence in the letter left unredacted,
the defendant wrote: "First, I want you to know I'm not angry
with you about me being in here for 120 days." The letter was
written on May 11, 2020, and the trial took place on June 29,
2022. Given this, defense counsel was concerned that if the
letter had been redacted, the jury might assume that the
defendant was held in jail for over two years rather than for
only 120 days. Counsel believed that would be far more damaging
than the jury actually knowing that the defendant was held for
120 days, as the jury might speculate that the defendant was a
"very dangerous individual."

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that he was deprived of a substantial ground of defense. As the

judge concluded, any risk of unfair prejudice was ameliorated by

his limiting instructions to disregard the portions of the

letter that indicated that the defendant was in custody at the

time he wrote it, because the jury is presumed to have followed

this instruction. See Commonwealth v. Bryant, 482 Mass. 731,

737 (2019). Furthermore, the fact that the jury acquitted the

defendant of strangulation demonstrated that the jury carefully

weighed the evidence, and that it was not improperly influenced

by the references to the defendant's incarceration. See

Commonwealth v. Delaney, 425 Mass. 587, 595 (1997). See also

Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 836 (2008)

("reflective of 'jury sophistication' . . . are the

discriminating jury verdicts"). In sum, this is not a case

where "better work might have accomplished something material

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for the defense." Commonwealth v. Satterfield, 373 Mass. 109,

115 (1977).

Judgment affirmed.

Order denying motion for a
new trial affirmed.

By the Court (Meade, Blake &
Desmond, JJ.3),

Assistant Clerk

Entered: February 12, 2024.

3 The panelists are listed in order of seniority.

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