Commonwealth v. Constantine G. Thompson.

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-678

COMMONWEALTH

vs.

CONSTANTINE G. THOMPSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived trial, the defendant, Constantine G.

Thompson, was convicted of assault and battery on a family or

household member and larceny from a person. On appeal, he

claims his trial counsel was ineffective because she failed to

secure the presence of a State police witness who purportedly

would have testified that the stolen property that gave rise to

his larceny conviction was not found during an inventory search

of his vehicle at the time of his arrest. We affirm.

Background. We summarize the evidence adduced at trial,1

and reserve specific facts for later discussion. The defendant

and victim were in a relationship in 2019. Around 7 A.M. on

1 The Commonwealth called the victim, the victim's coworker, and
Northborough police Sergeant Sean Montville as trial witnesses.
The defendant neither testified nor called any witnesses.
November 27, 2019, the defendant drove to the victim's workplace

to confront her about something that had occurred the prior

evening. On arrival, the defendant approached the victim's car,

where he found her sitting in the driver's seat. The victim

rolled down her window to speak with the defendant, and during

their interaction the defendant suddenly punched her face. The

defendant then opened the door, pushed the victim, and punched

her a second time before she escaped through the passenger side

door. Once outside her car, the victim yelled to a coworker to

call 911. The defendant took the victim's phone before

returning to his own vehicle and leaving the scene.

Sergeant Sean Montville responded to the scene and observed

visible injuries to the victim's face and hand. Montville did

not see or later interact with the defendant, and he testified

that had no personal knowledge whether the police recovered the

victim's phone from either the defendant or his vehicle. When

defense counsel sought the trial judge's permission to approach

Montville with what she asserted was a vehicle inventory report

generated on the search of the defendant's vehicle, the judge

asked her for an offer of proof. The following exchange ensued:

Defense counsel: "I think the offer of proof, Your Honor,
is there's no phone."

Judge: "There's no phone."

Defense counsel: "There's no phone. There's no phone
recovered."

2
Judge: "In the car?"

Defense counsel: "In the car, there's a personal property
inventory that I would offer [as] proof next that shows a
cell phone that doesn't indicate what they've done with it.
Is it her phone, it is his phone? There's an allegation
that he's taken something that nobody seems to know where
it is to prove that he had it."

Based on defense counsel's proffer, the judge foreclosed this

line of questioning after finding Montville had no personal

knowledge as to the recovery of the phone. The inventory report

referenced by counsel was neither marked for identification nor

admitted in evidence.

The defendant now claims that trial counsel provided

ineffective assistance because she failed to summons a State

police witness to testify that the victim's cell phone was not

recovered during an inventory search of the defendant's vehicle.

The defendant contends this testimony would have cast doubt on

the victim's credibility and established reasonable doubt as to

the larceny charge.

Discussion. A successful claim for ineffective assistance

of counsel requires a showing that (1) the "behavior of counsel

[fell] measurably below that which might be expected from an

ordinary fallible lawyer" and (2) such failing "likely deprived

the defendant of an otherwise available, substantial ground of

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

Where, as here, an ineffective assistance claim is raised for

3
the first time in the defendant's direct appeal, our review is

limited to what is contained in the trial record. See

Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). Relief may

only be afforded if "the factual basis of the claim appears

indisputably on the trial record -- that is, where the issues do

not implicate any factual questions more appropriately resolved

by a trial judge." Commonwealth v. Keon K., 70 Mass. App. Ct.

568, 573-574 (2007). See Commonwealth v. Peloquin, 437 Mass.

204, 210 n.5 (2002). For the reasons discussed below, the

defendant cannot make the required showing.

As an initial matter, we note that the vehicle inventory

report on which the defendant seeks to rely is not properly

before us because it was never admitted in evidence at trial or

otherwise made part of the record. See Commonwealth v. Core,

370 Mass. 369, 371 (1976). Nothing in the record before us

indisputably establishes that the victim's phone was absent from

the defendant's car when the police searched it. To the

contrary, counsel remarked at trial that a police personal

property inventory report indicated that a phone was found in

the defendant's car, albeit without identifying whether it

belonged to the victim or the defendant. The factual premise of

the defendant's ineffective assistance argument -- that the

police did not recover the victim's phone during an inventory

search of the defendant's car -- simply has not been

4
established. Because the factual basis for the defendant's

claim does not "appear[] indisputably on the trial record,"

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

does not fall "within that narrow category of claims that an

appellate court can resolve on the trial record alone." Zinser,

446 Mass. at 811-812.

Even assuming arguendo that the factual basis for the

defendant's claim -- that the police did not recover the

victim's phone from the defendant's vehicle -- was indisputably

evident from the trial record, the defendant has not adequately

explained how this evidence would have afforded him a

substantial defense at trial. First, the Commonwealth did not

present any evidence that the victim's phone had, in fact, been

recovered from either the defendant or his vehicle. Trial

counsel emphasized this point at the outset of her closing

argument by stating, "We don't know where the phone is, there

was no evidence given that, you know, where the phone wound up,

what happened to it. . . . [I]t can't be left up to

speculation." Given counsel's ability to highlight the

Commonwealth's inability to account for the phone, it is

unlikely the addition of direct testimony concerning the

nonrecovery of the phone in the defendant's vehicle would have

influenced the judge. See Commonwealth v. Watkins, 473 Mass.

222, 239 (2015), quoting Commonwealth v. Freeman, 442 Mass. 779,

5
791 (2004) ("When addressing ineffective assistance of counsel

claims, we 'consider whether there was an error in the course of

trial, and if so, whether such error was likely to have

influenced the [fact finder's] conclusion'").

The defendant also argues that the victim's credibility

would have been cast in doubt had defense counsel established

that her phone was not found in the defendant's car. We

disagree given the strength of the Commonwealth's case.

Although the Commonwealth offered no corroborative evidence to

the victim's specific claim that the defendant took her phone,

both the eyewitness testimony and photographic exhibits2

corroborated significant portions of her account of the assault

and battery, thus bolstering her credibility. In fact, the

judge commented that the testimony of all of the Commonwealth's

witnesses was "[s]ome of the most compelling testimony [he] ever

had as a judge." Furthermore, the judge, after announcing the

verdict, stated that he "found [the victim] to be incredibly

credible," and had believed her testimony.3 On the record before

us, we remain unpersuaded that the judge's assessment of the

2 The Commonwealth introduced into evidence three photographs,
taken soon after the victim's reported assault, purportedly
depicting injuries the victim received from the assault.
3 Credibility determinations by the judge who "heard the

testimony of the parties . . . [and] observed their demeanor"
are entitled to the utmost deference. Ginsberg v. Blacker, 67
Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v. Maguire, 47
Mass. App. Ct. 929, 929(1999).

6
victim's credibility would have changed substantially if defense

counsel had called a witness to establish the victim's phone was

not recovered from the defendant's vehicle.

Finally, we acknowledge the Commonwealth's assertion that

it was not required to prove the defendant retained possession

of the phone after taking it from the victim. See G. L. c. 266,

§ 25 (b); Commonwealth v. Murray, 401 Mass. 771, 772 (1988)

("Larceny is the taking without right of the personal property

of another with the specific intent to deprive the other of the

property permanently").

Therefore, even accepting the factual basis for the

defendant's claim of ineffective assistance of counsel, the

claim fails because the defendant was not deprived of an

available and substantial defense, especially given the strength

of the Commonwealth's case. See Saferian, 366 Mass. at 96.

Judgments affirmed.

By the Court (Milkey,
Neyman & Smyth, JJ.4),

Clerk

Entered: May 4, 2023.

4 The panelists are listed in order of seniority.

7