Commonwealth v. Carmen Rosado.

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-1009

COMMONWEALTH

vs.

CARMEN ROSADO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from an incident in which the defendant,

while a patient at Heywood Hospital, aggressively grabbed the

stethoscope around the victim nurse's neck, resulting in

ligature marks, after she confiscated the defendant's cell

phone. The defendant was charged with assault and battery on a

healthcare provider, G. L. c. 265, § 13I, and, after a bench

trial in the District Court, convicted on that charge. In

addition to her direct appeal of that conviction, the defendant

also filed a motion for a new trial pursuant to Mass. R.

Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing

that she had received ineffective assistance of counsel. The

judge denied that motion without a hearing. In this
consolidated appeal of both her conviction and of the denial of

her motion for a new trial, the defendant argues that the motion

judge, who was also the trial judge, erred in denying her motion

for a new trial and that, with respect to her direct appeal of

her conviction, the judge erred by failing to instruct himself

on the theory of defense of property. We affirm, addressing

each argument in turn.

Discussion. 1. Ineffective assistance of counsel. The

defendant first argues that the judge erred in denying her

motion for a new trial because she received ineffective

assistance of counsel. Particularly, she contends that her

counsel was ineffective because he failed to argue that she had

engaged in lawful defense of property when she assaulted the

victim. As part of her motion, the defendant submitted an

affidavit from her trial counsel averring that he "presented an

accident or mistake defense . . . because [he] believed it was

[the defendant's] best defense." As the Supreme Judicial Court

has explained,

"[t]he two-part test a defendant must satisfy to prevail on
a claim of ineffective assistance of counsel in
Massachusetts is familiar. The defendant must show that
counsel's performance fell 'measurably below that which
might be expected from an ordinary fallible lawyer,' and
that his performance 'likely deprived the defendant of an
otherwise available, substantial ground of defence.'"

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Commonwealth v. Marinho, 464 Mass. 115, 123 (2013), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where trial

counsel's purportedly strategic decisions are in question, "the

test is whether the decision was 'manifestly unreasonable when

made.'" Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015),

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

therefore assess "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."

Commonwealth v. Frank, 433 Mass. 185, 192 (2001).

"A person 'may defend or regain his momentarily interrupted

possession [of personal property] by the use of reasonable

force, short of wounding or the employment of a dangerous

weapon.'" Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 666

(2019), quoting Commonwealth v. Donahue, 148 Mass. 529, 531

(1889). The use of force in defense of property is justified

when "(1) the defendant used only nondeadly force, and (2) the

force used was 'appropriate in kind and suitable in degree, to

accomplish the purpose.'" Commonwealth v. Haddock, 46 Mass.

App. Ct. 246, 248-249 (1999), quoting Commonwealth v. Goodwin,

57 Mass. 154, 158 (1849).

"The decision to allow a motion for a new trial lies within

the sound discretion of the judge and will not be reversed

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unless it is manifestly unjust or unless the trial was infected

with prejudicial constitutional error." Commonwealth v. Vargas,

475 Mass. 338, 354 (2016), quoting Commonwealth v. Gorham, 472

Mass. 112, 117 (2015). "Judges are to apply the rule 30 (b)

standard rigorously and should grant such motion only if the

defendant comes forward with a credible reason that outweighs

the risk of prejudice to the Commonwealth." Kolenovic, 471

Mass. at 672. "Where, as here, the motion judge is also the

trial judge, we give special deference to the judge's findings

of fact and the ultimate decision on the motion" (quotation and

citation omitted). Id. at 672-673.

The judge did not abuse his discretion in denying the

defendant's motion. In reviewing the judge's decision, we

emphasize that trial counsel can only be expected to pursue

defense strategies that are supported by the facts of the

controversy. See id. at 674 (reasonableness of counsel's

actions based on what was known or should have been known at

time of trial trial). Here, the judge was entitled to find the

following as facts. See id. at 665. The defendant checked

herself into Heywood Hospital after experiencing suicidal

ideation. She remained in the hospital for a period of two and

one-half days, during which time she was prohibited from

leaving. Eventually, she began demanding to speak with an

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attorney or advocate, and, when those requests were not granted,

used her cell phone to record the victim and other patients as

the victim went about her work in the emergency room. The

victim asked the defendant to stop recording and when the victim

remained "disruptive," confiscated the defendant's cell phone by

taking it from her hand.1 The defendant responded by grabbing

the victim by her stethoscope, which was around the victim's

neck, so aggressively that the stethoscope broke and ligature

marks remained on the side of the victim's neck after the

encounter.2 Hospital security staff restrained the defendant

shortly after the physical encounter began, but not before the

defendant had inflicted the injury on the victim.

At trial, the defendant's counsel contended that the

defendant did not intend to assault the victim but accidentally

grabbed the stethoscope while attempting to take her cell phone

back from the victim. This was, as he explained in his

affidavit, a strategic decision based on his belief that a claim

1 The victim testified that hospital policy prohibited the
use of a recording device or cell phone, and that she was
concerned that the defendant was violating the Health Insurance
Portability and Accountability Act rights of other patients, who
were present in the department. She further testified that the
policy prohibiting recording was posted.

2 The marks that remained on the victim's neck were depicted
in a photograph that was entered into evidence by the
Commonwealth.

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of mistake or accident was the defendant's best defense.

Although the defendant represented in her motion for a new trial

that she ultimately disagreed with counsel's strategy -- in her

motion, she contended that trial counsel should have instead

argued that the defendant was engaged in lawful defense of

property when she assaulted the victim -- the judge was within

his discretion in concluding that the strategy, while

unsuccessful,3 was not manifestly unreasonable. See Commonwealth

v. Lally, 473 Mass. 693, 706 (2016), quoting Kolenovic, 471

Mass. at 674-675 (evaluating strategic decision by "search[ing]

for rationality in counsel's strategic decisions . . . and not

[taking into account] whether counsel could have made

alternative choices"). In order to obtain an acquittal by

arguing defense of property, counsel would be required to

convince the fact finder that the defendant used force that was

appropriate in kind and suitable in degree, to accomplish the

purpose of recovering her cell phone. See Haddock, 46 Mass.

App. Ct. at 249. We are unpersuaded by the defendant's claim

3 We are not persuaded by the defendant's argument that the
weakness of trial counsel's accident defense supports the
conclusion that he was ineffective, as "[i]n cases where
tactical or strategic decisions of the defendant's counsel are
at issue, we conduct our review with some deference to avoid
characterizing as unreasonable a defense that was merely
unsuccessful." Kolenovic, 471 Mass. at 673, quoting
Commonwealth v. Valentin, 470 Mass. 186, 190 (2014).

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that a fact finder could reasonably be convinced to conclude

that using a stethoscope cord to "strangle" the victim, as she

so testified, so violently that the cord snapped and the victim

was left with lasting ligature marks could be construed as

appropriate or suitable for the purpose of recovering a cell

phone, particularly given that there was no evidence that the

victim's confiscation of the cell phone was anything other than

temporary.4 See Ogarro, 95 Mass. App. Ct. at 666, quoting

Donahue, 148 Mass. at 531 ("A person 'may defend or regain his

momentarily interrupted possession by the use of reasonable

force, short of wounding or the employment of a dangerous

weapon'"). Accordingly, there was no abuse of discretion on the

part of the judge in denying the defendant's motion for a new

trial.5 See Kolenovic, 471 Mass. at 676 ("we see no basis to

fault counsel for elevating his concern for a viable legal

4 The defendant's reliance on Commonwealth v. McArthur, 55
Mass. App. Ct. 596, 599-600 (2002), is misplaced. Although the
defendant in McArthur presented sufficient evidence to warrant a
defense of property instruction with respect to an unarmed
struggle with the victim after she took his money, the court
explicitly distinguished that touching from a separate assault
in which the defendant -- as in this case -- used a weapon to
attack the victim. Id. at 600.

5 Similarly, we are unconvinced that trial counsel rendered
ineffective assistance by failing to request that the judge
instruct himself on defense of property.

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defense over a possible alternative approach likely fraught with

difficulty").

2. Jury instruction. The defendant further argues that

the judge erred by not, sua sponte, instructing himself on

defense of property before finding her guilty. In support of

this argument, she refers back to her discussion of the evidence

that she contends was sufficient to support the conclusion that

she engaged in defense of property when she pulled the victim by

the stethoscope around her neck. Specifically, she claims that

her testimony that she was attempting to regain possession of

her cell phone by reaching out for it when she made contact with

the victim. Accordingly, she suggests that the judge was

required to instruct himself on defense of property before

finding her guilty. The claim is meritless.

Because the defendant concedes that she did not request a

defense of property instruction at trial, we review for a

substantial risk of a miscarriage of justice. See Commonwealth

v. Eberle, 81 Mass. App. Ct. 235, 239 (2012). With respect to

judicial self-instruction, "[w]e presume that in jury-waived

trials, judges will 'have correctly instructed [themselves] as

to the manner in which evidence was to be considered in [their]

role as factfinder.'" Commonwealth v. Garvey, 99 Mass. App. Ct.

139, 143 (2021), quoting Commonwealth v. Batista, 53 Mass. App.

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Ct. 642, 648 (2002). "This presumption, however, will not be

applied in cases 'where the record indicates otherwise.'" Id.,

quoting Commonwealth v. Urkiel, 63 Mass. App. Ct. 445, 451

(2005).

We note at the outset of our analysis that, given that the

defendant did not raise this issue at trial, she is unable to

demonstrate that the judge indeed did not instruct himself on

defense of property. See Garvey, 99 Mass. App. Ct. at 143.

Nevertheless, as we have discussed, the evidence adduced at

trial cannot be said to support defense of property,

particularly where the defendant used the victim's stethoscope

to pull her by her neck. See Ogarro, 95 Mass. App. Ct. at 666.

Since the defendant did not present evidence supporting defense

of property, she was not entitled to such an instruction. See

Eberle, 81 Mass. App. Ct. at 239 (instruction required if any

view of evidence would support reasonable doubt as to whether

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prerequisites of defense were present). Accordingly, we discern

no error.6

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Desmond, Hand &
Grant, JJ.7),

Clerk

Entered: October 1, 2024.

6 Even assuming, arguendo, that the defendant was entitled
to such an instruction, we would discern no substantial risk of
a miscarriage of justice given the strength of the
Commonwealth's case against the defendant. See Eberle, 81 Mass.
App. Ct. at 240-241 (describing substantial risk of miscarriage
of justice).

7 The panelists are listed in order of seniority.

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