Commonwealth v. Melissa G. Borland.

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-361

COMMONWEALTH

vs.

MELISSA G. BORLAND.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of assault

and battery by means of a dangerous weapon and assault and

battery. 1 On appeal, the defendant claims that the judge erred

by (1) determining at the close of the Commonwealth's case that

the evidence did not warrant an instruction on self-defense, and

(2) denying the defendant's motions for required findings of not

guilty. The defendant also claims that her trial attorney

rendered ineffective assistance by calling her as a witness

knowing she made prior inconsistent statements and was not

competent. We affirm.

Background. In summarizing the evidence at trial, we start

by noting what was undisputed. The defendant and victim were

1 The jury returned verdicts of not guilty of kidnapping and
witness intimidation.
neighbors at the time of the incident. On the morning of

October 3, 2018, the defendant entered the victim's apartment

and asked the victim to make a phone call for her. Shortly

thereafter, the defendant struck the victim, who was unarmed, in

the head with a hammer. The main issue at trial was whether the

defendant's conduct was a justified exercise of self-defense.

1. The Commonwealth's case. The victim testified that,

not long after entering inside his apartment, the

defendant -- "all of a sudden," "without warning," and with

"[n]o provocation at all" -- grabbed him by the hair and hit him

in the head three times with a hammer. 2 The victim stood up,

knocked the hammer out of the defendant's hand, and attempted to

call 911. However, the defendant "grabbed [him] by the wrist"

and "pull[ed] [him] onto the bed." The victim testified that he

eventually wrestled away from the defendant and tried to flee

the apartment, but she prevented him from leaving by blocking

the door. After struggling with the defendant for approximately

twenty minutes, the victim managed to call 911; multiple police

officers responded to the scene.

Officer Licinio DePina testified that he saw the victim

being treated by emergency medical service providers, "bleeding

from the head and covered in blood." DePina spoke to the

2 The ball peen hammer was an antique owned by the victim.

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victim, who claimed he did not know why the defendant had hit

him in the head with the hammer. The victim was transported to

the hospital, where he was treated for a "severe head injury."

Another responding officer, Officer Kenneth Egan, encountered

the defendant in the victim's apartment. Egan observed that the

defendant was not wearing pants, and that she had scratches and

bloodstains on her forearms. The defendant told Egan she had

had an "encounter with a neighbor" and that "he was bleeding

pretty badly." The defendant also inquired whether the victim

"was okay." The defendant claimed she was at the victim's

apartment to discuss a local food pantry and look at plants.

The defendant neither reported to the officers any injuries of

her own nor claimed that she had acted in self-defense.

At the close of the Commonwealth's case, defense counsel

inquired with the judge whether the evidence warranted a self-

defense instruction. The defendant's self-defense claim was

based largely on the officers' testimony about the defendant's

appearance at the scene, that the victim was significantly

larger in stature than the defendant, and the victim's testimony

concerning statements the defendant made during their violent

encounter. Specifically, the victim testified that he had

written a letter to the district attorney's office in which he

reported the defendant yelled he was trying to rape her after

she pulled him onto the bed. The victim also testified that he

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told an officer who interviewed him one month after the incident

that the defendant had said he was attacking her. The judge

decided that the evidence did not yet warrant a self-defense

instruction at that stage of the trial.

2. The defendant's case. At the close of the

Commonwealth's case, the judge denied the defendant's motion for

required findings of not guilty. After the court took a recess

as requested by defense counsel so that he could consult with

his client, counsel called the defendant to testify. The

defendant, as the sole witness in her defense, claimed she was

acting in self-defense when she struck the victim in the head

with the hammer as he was on top of her attempting to rape her.

Discussion. 1. Sufficiency of the evidence. The

defendant first claims that the convictions cannot stand because

the Commonwealth failed to rebut the evidence before the jury at

the close of the Commonwealth's case that the defendant had

acted in self-defense. She also contends that the evidence in

general was insufficient to support the convictions. We

disagree.

We review the evidence in the light most favorable to the

Commonwealth, to determine whether "any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

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The evidence, which included the victim's testimony that the

defendant, unprovoked, attacked the victim in his own home,

striking him three times in the head with a hammer and causing

injuries, was sufficient to establish the elements of assault by

means of a dangerous weapon beyond a reasonable doubt. See

Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016)

("violation of G. L. c. 265, § 15A, requires proof of three

elements: [1] the presence of all the elements of assault, and

[2] a touching, however slight, [3] by means of a dangerous

weapon"). We disagree with the defendant's contention that

there was insufficient evidence that "she used an inherently

dangerous weapon or another object with the intent to cause or

knowledge that it would cause [the victim] harm." Considering

the victim's testimony, the photographs of his injuries, the

admission of the hammer into evidence, and the supporting

medical records, a rational jury could find the defendant used

the hammer as a dangerous weapon. See Commonwealth v. Gebo, 489

Mass. 757, 773-774 (2022) (even "innocuous object[s]" and

"household items," such as plastic chair swung at victim, can be

dangerous weapons). See also Commonwealth v. Appleby, 380 Mass.

296, 307 n.5 (1980) ("the question whether a weapon is dangerous

as used is always one for the fact finder").

In addition, the evidence that the defendant grabbed the

victim and pulled him down was sufficient to satisfy the

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essential elements of assault and battery. See Commonwealth v.

Garvey, 99 Mass. App. Ct. 139, 145 (2021) ("To support a

conviction of intentional assault and battery, the Commonwealth

must prove that the defendant committed an intentional and

unjustified use of force upon the person of another, however

slight" [quotation omitted]).

Finally, the evidence as to the unprovoked, aggressive

nature and force of the attack was sufficient to demonstrate the

defendant did not act in self-defense. 3 See Commonwealth v.

Harrington, 379 Mass. 446, 452-454 (1980). See also

Commonwealth v. Kapaia, 490 Mass. 787, 793 (2022) ("the

defendant's claim that certain witnesses were unreliable or that

the testimony from some witnesses was inconsistent with the

testimony from others and therefore insufficient to sustain a

conviction is nothing more than an issue of credibility, an

issue that is solely within the province of the jury" [quotation

omitted]). Accordingly, there was no error in the denial of the

motion for a required finding of not guilty.

2. Self-defense instruction. At the outset, we note that

the judge did in fact give a self-defense jury instruction in

her final charge to the jury. The issue before us is whether,

3 The self-defense aspect of the sufficiency analysis overlaps,
of course, with the issue of whether the judge erred by finding
the evidence did not warrant a self-defense instruction, as
discussed in more detail below.

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at the close of the Commonwealth's case, the evidence warranted

such an instruction. Because the objection was preserved, we

review for prejudicial error. Commonwealth v. Teixeira, 486

Mass. 617, 622 (2021).

"Before the defendant is entitled to an instruction on the

right to use deadly force in self-defense, the evidence must

raise a reasonable doubt as to the defendant's right to use such

force." Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644

(2002), citing Commonwealth v. Rodriguez, 370 Mass. 684, 687-688

(1976). "[W]e consider the evidence, from any source, and

resolve all reasonable inferences in favor of the defendant,

without balanc[ing] the testimony of the witnesses for each side

or consider[ing] the credibility of the evidence" (quotations

and citation omitted). Commonwealth v. Miranda, 484 Mass. 799,

810, cert. denied, 141 S. Ct. 683 (2020). "However, a judge is

not required to charge on self-defense . . . where a jury would

be left to speculate on a hypothesis not supported by the

evidence." Commonwealth v. Paton, 31 Mass. App. Ct. 460, 464

(1991). See Commonwealth v. Garcia, 482 Mass. 408, 411 (2019).

"When reviewing the denial of an instruction on the use of

deadly force in self-defense, [we] ask[] whether, in the light

most favorable to the defendant, the evidence raised at least a

reasonable doubt that the defendant (a) believed . . . she was

in imminent danger of death or serious bodily harm from which

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the defendant could save . . . herself only by using deadly

force, and (b) used all reasonable means available to retreat

from the conflict." 4 Teixeira, 486 Mass. at 622-623. "Failure

to raise a reasonable doubt as to [any] of these predicates is

fatal to a claim of self-defense." Toon, supra at 650.

Here, there was nothing in the evidence at the close of the

Commonwealth's case to suggest that, prior to hitting the victim

with the hammer, the defendant had attempted either to retreat

or had no reasonable means of escape from a conflict with the

victim who posed imminent danger of serious physical harm to

her. "[S]ome evidence" of these things was required "[b]efore

that question may go to the jury." Commonwealth v. Pike, 428

Mass. 393, 399 (1998). See Commonwealth v. Benoit, 452 Mass.

212, 226 (2008) ("privilege to use self-defense arises only in

circumstances in which the defendant uses all proper means to

avoid physical combat"). As the evidence stood at the close of

the Commonwealth's case, the acts against which the defendant

claimed to be defending herself occurred after she struck the

victim in the head with the hammer. The victim expressly

4 As the judge implicitly found and eventually instructed, the
standard for self-defense by deadly force applied, even though
death did not result. See Commonwealth v. Pike, 428 Mass. 393,
396 & n.3 (1998) (deadly force instruction proper where
defendant threw radio at victim because "[t]he relevant inquiry
is what level of force was used, not what the resulting injuries
were").

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testified that "[the defendant] hit [him] first" in response to

defense counsel's question that "at some point, [he was] on top

of her?" Any contrary conclusion as to the sequence of events

would be grounded in mere speculation. See Commonwealth v.

Naylor, 407 Mass. 333, 335 (1990), quoting Commonwealth v.

Costa, 360 Mass. 177, 184 (1971) ("A trial judge is not required

. . . to charge on an hypothesis which is not supported by the

evidence"). See also Commonwealth v. Camerano, 42 Mass. App.

Ct. 363, 367 (1997) (disbelief of witness's testimony does not

prove contrary proposition). There was no suggestion during the

victim's testimony that the defendant availed herself of any

means of retreat, for instance, by attempting to leave the

apartment, prior to hitting the victim. Nor did the officers

testify that the defendant made statements to that effect.

Thus, there was insufficient evidence to support the required

inference for a self-defense instruction. See Toon, 55 Mass.

App. Ct. at 651.

Moreover, since the only evidence of the sequence of events

established that the defendant was the first aggressor, self-

defense was not available. See Commonwealth v. Castillo, 485

Mass. 852, 856-857 (2020) ("A person who initiates a fight

cannot generally claim self-defense"); Commonwealth v. Espada,

450 Mass. 687, 694 (2008). See also Miranda, 484 Mass. at 813

(defendant's "combined failure to retreat and unnecessary

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escalation of conflict necessarily preclude[d] a finding of

self-defense"). Thus, the judge did not erroneously decline at

the close of the Commonwealth's case to instruct on self-

defense. 5

3. Ineffective assistance of counsel. The defendant

claims trial counsel's tactical decision to call the defendant

to testify, see Commonwealth v. Grissett, 66 Mass. App. Ct. 454,

459 (2006), was manifestly unreasonable when made and deprived

her of an otherwise available, substantial ground of defense.

See Commonwealth v. Housen, 458 Mass. 702, 711 (2011);

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When a claim

of ineffective assistance of counsel is raised for the first

time on direct appeal, we will only grant relief when that

ineffectiveness appears "indisputably" on the trial record.

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

omitted). "Relief on a claim of ineffective assistance based on

the trial record [without the support of affidavits] is the

weakest form of such a claim because it is bereft of any

5 Concluding, as we do, that there was no error, we need and do
not address the defendant's claim that the judge's decision was
prejudicial insofar as it effectively forced her to testify.
Nonetheless, we note that a defendant's "need to testify or
present evidence in order to raise self-defense does not violate
State or Federal constitutional privileges against self-
incrimination. . . . For the Federal and State privileges
against self-incrimination to attach, the State must compel the
defendant to produce testimonial evidence." Toon, 55 Mass. App.
Ct. at 651 n.12 (and cases cited).

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explanation by trial counsel for [their] actions and [is]

suggestive of strategy contrived by a defendant viewing the case

with hindsight" (quotation omitted). Commonwealth v. Davis, 481

Mass. 210, 222 (2019).

The defendant fails to show trial counsel's judgment

relating to his decision to call the defendant to testify was

"manifestly unreasonable" when made. See Commonwealth v.

Henley, 488 Mass. 95, 134 (2021) (under Saferian test, "[a]

strategic or tactical decision by counsel will not be considered

ineffective assistance unless the decision was manifestly

unreasonable when made" [quotation omitted]). The

Commonwealth's case largely rested on the credibility of the

victim. After the judge concluded that self-defense was not

raised during the Commonwealth's case, it is unclear how defense

counsel could have raised the defense and challenged the

victim's credibility without calling the defendant to testify.

See Commonwealth v. Sharpe, 454 Mass. 135, 147 (2009) (not

manifestly unreasonable to call defendant to testify where it

was "only realistic chance" of obtaining lesser verdict).

Commonwealth v. Lally, 473 Mass. 693 (2016), on which the

defendant relies, is inapposite. The decision in that case was

based on a review of defense counsel's testimony at a hearing on

a motion for new trial -- "[t]he preferred method for raising

claims of ineffective assistance of trial counsel," Davis, 481

11
Mass. at 222 -- which allowed the reviewing court to conclude

the defendant's decision to testify was voluntary and informed.

Lally, supra at 713-714. We have no such evidence here.

Without an affidavit from either defense counsel or the

defendant herself, we simply have no way of knowing, for

instance, what prior conversations they had about the

defendant's choice to testify; the defendant's reasons for

testifying; any information as to the mental health issues the

defendant now claims impacted the validity of her decision to

testify; or even if the defendant perhaps decided to testify

against defense counsel's advice. See Commonwealth v. Kelly, 57

Mass. App. Ct. 201, 209 (2003), quoting Strickland v.

Washington, 466 U.S. 668, 688-691 (1984) ("Inquiry into

counsel's conversations with the defendant may be critical to a

proper assessment of counsel's . . . decisions").

As to the defendant's claims that defense counsel should

have requested more time to consult with his client or asked for

the judge to conduct a voir dire into the defendant's decision,

there is no reason on this record to think these were not

strategic decisions on the part of defense counsel. See

Commonwealth v. Glacken, 451 Mass. 163, 170 (2008) ("Because of

the delicate balance between a defendant's right to testify on

his own behalf and his equally fundamental right not to testify

. . . [s]uch a colloquy might give the defendant the impression

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that he was being urged by the judge to testify" [quotation

omitted]). Accordingly, the defendant has not shown that trial

counsel's performance fell "measurably below that which might be

expected from an ordinary fallible lawyer," or that counsel's

decision likely "deprived the defendant of an otherwise

available, substantial ground of defence." Saferian, 366 Mass.

at 96.

Judgments affirmed.

By the Court (Neyman,
Desmond & Smyth, JJ. 6),

Clerk

Entered: September 8, 2023.

6 The panelists are listed in order of seniority.

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