Commonwealth v. Michael D. Thomas.

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-298

COMMONWEALTH

vs.

MICHAEL D. THOMAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

At about 7 P.M., on December 12, 2017, the defendant rubbed

his body against two women who were waiting in line to make

purchases at a convenience store in Boston. He followed one of

the women out of the store and made comments to her. Complaints

charged him with two counts of indecent assault and battery

(G. L. c. 265, § 13H) and two amended counts of threatening to

commit a crime (G. L. c. 275, § 2). A jury convicted him of one

count of indecent assault and battery. We discern in the

defendant’s various claims of error no cause to disturb the

judgment, and affirm.

Background. Evidence before the jury included surveillance

video from the convenience store as well as the testimony of one

victim and three police officers. The victim testified that she

and her coworker went into the convenience store and waited in
line at the cashier. A man walked behind the victim and "rubbed

up against" her. "His genital area touched [her] rear bottom."

The victim moved away, told him to "back up" and said, "[W]ho

are you?" She was "shocked" and "caught off guard." The man

then stepped behind the victim's coworker (who did not testify)

and "rubbed up against" her in the same way. The man then

walked behind the victim again and "rubbed up against" her for a

second time. The entirety of the interaction was only

"somewhat" visible from the surveillance camera angle.

After being touched a second time, the victim felt

"violated" and wanted to leave "right away." The women left the

store together, and the man followed them outside "saying

things" to them. He followed the victim as she started to walk

home, and he told her that he was "coming home with [her] to

fuck the shit out of [her]." The victim told him to stop,

called out to her coworker, and ran. He chased her down the

street and pulled up his shirt. The victim caught up to her

coworker, who flagged down a police officer heading to another

call. Both women then went to the police department, where they

spoke with officers.

Moments later, officers responded to the store and saw the

defendant, who matched the description provided. Officers

attempted to speak with him, but he was uncooperative,

belligerent, argumentative, and intoxicated. Eventually, the

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defendant provided his name and date of birth. The defendant

denied knowing why the police wanted to speak with him, and

officers did not arrest him.

Following the defendant's conviction, he appealed. Those

proceedings were stayed by this court while the defendant filed

a motion for a new trial raising numerous claims directed

primarily at the conduct of trial counsel. The trial judge held

an evidentiary hearing, which included the testimony of trial

counsel, and denied the motion. This appeal, consolidated with

his direct appeal, followed.

Discussion. 1. Ineffective assistance of counsel. When

claiming ineffective assistance of counsel, the defendant must

show that counsel "made errors so serious that counsel was not

functioning as the 'counsel'" mandated by law and must also show

"that counsel's errors were so serious as to deprive the

defendant of a fair trial." Strickland v. Washington, 466 U.S.

668, 687 (1984). Merely suggesting alternative courses of

action is inadequate to prove ineffective assistance. Instead,

the defendant must show 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

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defendant of an otherwise available, substantial ground of

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

a. Conceding guilt in the closing argument. The record

does not support the defendant's contention that counsel

conceded guilt in his closing argument. Instead, the record

shows that counsel offered a non-criminal explanation for the

evidence before the jury. The surveillance video clearly showed

the defendant's bizarre movements behind two different women,

and the testimony of one of those women showed that the

defendant "rubbed up against" both women and "rubbed up against"

her for a second time. Given this evidence, counsel conceded

that the convenience store was not "an appropriate place" for

the defendant's behavior, and he conceded that the behavior in

such a place may have been "inappropriate, annoying and possibly

even offensive." He argued that the "lighthearted conversation"

seen on the surveillance video between the defendant and the

victim's coworker showed that he was being flirtatious as if in

a crowded bar, but such conduct was "not a crime." He suggested

that the alleged contact arose not from the defendant's "private

part," but from the defendant's waist length winter jacket

"brush[ing]" against the victim.

By conceding that the defendant's behavior was not

"acceptable" or "appropriate" in a convenience store (as opposed

to a crowded bar), counsel drew the perfectly rational and

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significant distinction between "horse playing" and criminal

conduct. When, as here, the victim's testimony tends to be

corroborated by surveillance video, a rational concession before

a jury is a strategic decision that is "securely within the

realm of effective representation" (citation omitted).

Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015). Such a

concession is commonly deployed "as part of a litigation

strategy to boost [the defendant's] credibility with that jury."

Commonwealth v. Ramsey, 466 Mass. 489, 496 n.8 (2013). We

discern no error with the motion judge's conclusion that

counsel's argument was not "manifestly unreasonable" in these

circumstances. See Bonnett, 472 Mass. at 833.

b. Withdrawing a request for a lesser included offense

instruction. Counsel faced another strategic decision when the

judge asked about providing an instruction on the lesser

included offense of assault and battery. Following a sidebar

conference, the prosecutor declined to request the instruction,

and defense counsel requested the instruction. After defense

counsel later announced, "My client just changed his mind about

the lesser included," the judge did not provide the instruction.

The defendant contends that counsel should have requested the

instruction because without the lesser included option the jury

"did not have a means of holding the [d]efendant accountable for

the criminal conduct that was conceded during the closing

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argument." We disagree with the premise that at the time of the

jury instruction jurors were looking to hold the defendant

"accountable" for something. That view may be true in hindsight

with the benefit of knowing the verdict, but when assessing

attorney performance at trial, "every effort [must] be made to

eliminate the distorting effects of hindsight . . . and to

evaluate the conduct from counsel's perspective at the time."

Strickland, 466 U.S. at 689. At the time counsel declined the

instruction, there was a possibility of an acquittal on all the

charges -- as counsel put it in his testimony at the hearing on

the new trial motion, he discussed with the defendant the

possibility of a "clean sweep" or a "homerun" that might result

without the lesser included instruction. The defendant told

him, "[L]et's go for the homerun." The motion judge clearly

credited this account (also referenced in counsel's affidavit).

We give "special deference" to this factual finding by the

motion judge, who was also the trial judge, and discern no

error. Commonwealth v. Tinsley, 487 Mass. 380, 385 (2021).

c. Failing to object to testimony about the defendant's

statement to the police. The defendant next contends that he

invoked his right to remain silent, and counsel should have

objected to testimony about his brief remarks to the police.

Responding officers testified that the defendant initially

"refused to talk," and presented as uncooperative, belligerent,

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intoxicated, and argumentative, but eventually provided his name

and date of birth. He also denied knowing why the police wanted

to speak with him. The motion judge rejected the defendant's

claim because the record did not show an invocation of the right

to silence, and counsel strategically chose not to object to

this evidence. We need not unpack the meaning of the

defendant's refusal because the strategy professed by counsel

and credited by the judge is sufficient to resolve this claim.

If the defendant's brief remarks had been excluded, the jury

would have heard that he appeared belligerent, uncooperative,

and intoxicated without any context. As counsel asserted at the

hearing, the defendant's brief remarks provided context by

countering this evidence and showing that the defendant did not

flee, was in fact cooperative, had "nothing to hide," and "had

done nothing wrong" to merit police scrutiny. This evidence

also enabled counsel to suggest in his closing argument that the

complaints lacked any basis because the defendant spoke to the

police at the scene, but they never arrested him. Counsel's

judgment represented a "quintessential strategic choice" that we

cannot say was manifestly unreasonable. Commonwealth v. Hudson,

446 Mass. 709, 720 (2006). Therefore, we discern no error in

the denial of this claim.

d. Failing to object to hearsay evidence. We also see no

error in the absence of an objection to testimony by one officer

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about the procedural steps taken in the investigation. One of

the officers testified that he left the scene, spoke to the "two

women," and notified a "member of the sexual assault unit." The

defendant contends that counsel should have objected because the

testimony constituted hearsay, violated the defendant's right to

confront the coworker who did not testify, and corroborated the

testimony of the victim. We disagree.

An objection would have been unsuccessful because testimony

about these investigative steps was entirely proper and did not

constitute hearsay, implicate confrontation rights, or

corroborate the victim's testimony. See Commonwealth v. Arana,

453 Mass. 214, 227 (2009) ("circumstances, and timing, of police

involvement in the [sexual assault] case was relevant and

admissible"); Commonwealth v. Cohen, 412 Mass. 375, 393 (1992),

quoting McCormick on Evidence § 249, at 734 (3d ed. 1984)

("investigating officer should not be put in the false position

of seeming just to have happened upon the scene; he should be

allowed some explanation of his presence and conduct").

Evidence of investigative steps was also "an integral piece of

the Commonwealth's response to the defendant's theory" that the

police failed to fully investigate the case. Arana, 453 Mass.

at 227. Additionally, jurors "hardly would be surprised to

learn that the investigation that the police conducted in the

case before them was of a sexual assault." Commonwealth v.

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Condon, 99 Mass. App. Ct. 27, 38 (2020). As the judge properly

concluded, counsel cannot be deemed ineffective where an

objection to the admission of evidence would likely have been

overruled. See Saferian, 366 Mass. at 96.

e. Failing to object to inflammatory remarks in the

prosecutor's closing argument. The defendant next contends that

counsel failed to object to two inflammatory remarks in the

prosecutor's closing argument. In the first remark, the

prosecutor asked if the defendant was "to be commended because

he didn't finish and attack her on the street?" In the second

remark, the prosecutor referred to the defendant's conduct as

"objectification" of women and asked, "How monstrous is that?"

On review of this issue in the motion for a new trial, the trial

judge concluded that neither remark, taken in context, was

objectionable. We discern no error.

Both remarks require some context. The remark about

commending the defendant was expressly a response to defense

counsel's arguing that the defendant "called off his pursuit" of

the victim. The prosecutor said, "Counsel would have you

believe [that] he stopped." Her point was clearly that the

defendant did not merely call off the pursuit on his own -- he

chased the victim down the street and gave up the chase only

when she fled and called to her friend. As the prosecutor said,

"One would hope that [he] would stop" in these circumstances and

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not expect a commendation. That was a fair argument based upon

the evidence and counsel's argument.

The second remark used a somewhat archaic word,

"monstrous," which is synonymous with "outrageous." Calling a

defendant a "monster" is not permitted, but the prosecutor did

not do that. See, e.g., Commonwealth v. Bois, 476 Mass. 15, 34

(2016) (error to refer to defendant as "monster[ ] that come[s]

out in the night"); Commonwealth v. Rosario, 430 Mass. 505, 515

(1999) (calling defendant monster was "wholly inappropriate and

should not have occurred"). Here, the prosecutor noted the

"objectification" of women and asked, "How monstrous is that?"

We agree with the judge, who heard the argument, that the clear

intent was to emphasize how outrageously wrong and dehumanizing

it is to treat persons as objects. Given the context of the

remarks, we do not believe the prosecutor conveyed that the

defendant was a monster. Even if jurors, who saw the

surveillance video for themselves, took the remark in that way,

the verdicts show that they were not swept by an inflammatory

and emotional appeal to convict. Where the judge concluded that

the closing argument was proper, we agree that counsel cannot be

said to be ineffective for not making a futile objection.

f. Failing to advise the defendant of sentencing options.

The defendant also claims that his decision to go to trial was

tainted by counsel's inadequate advice about sentencing options

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following a change of plea. To prevail on an ineffective

assistance claim in these circumstances, the defendant must show

a "reasonable probability" that "but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Commonwealth v. Mahar, 442 Mass. 11, 15

(2004), quoting Strickland, 466 U.S. at 694. "In particular,

the defendant must demonstrate a reasonable probability that the

prosecution would have made an offer, that the defendant would

have accepted it, and that the court would have approved it."

Commonwealth v. Marinho, 464 Mass. 115, 129 (2013). Accord

Lafler v. Cooper, 566 U.S. 156, 164 (2012). We discern no error

in the denial of this claim.

The defendant contends that he opted to go to trial because

counsel failed to advise him that a plea could provide

sentencing "options" that would not include sex offender

registration. The main problem with this argument is that the

defendant did not have the range of options that he now

suggests. As the judge found after the hearing on the motion

for a new trial, the options were very limited. The prosecutor

rejected a charge concession on the two indecent assault and

battery counts (implicating the sex offender registration

component), the defendant told counsel that he would not agree

to supervised probation (impliedly necessary for an agreed

disposition), and the judge believed it was "highly unlikely"

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that she would have agreed to a defense request for a

continuance without a finding. Given these facts found by the

judge, the defendant cannot demonstrate a reasonable probability

that "the prosecution would have made an offer, that the

defendant would have accepted it, and that the court would have

approved it." Marinho, 464 Mass. at 129. Nor is there any

proof that an unagreed plea tender would have been accepted. In

his brief, the defendant suggests various sentencing

possibilities short of trial, but these scenarios amount to mere

"conjecture or speculation" that cannot support an ineffective

assistance of counsel claim (citation omitted). Id.

2. Jury instruction on credibility of witnesses. Finally,

we review the defendant's claim raised for the first time that

the judge provided an improper jury instruction on witness

credibility. We discern no error and no "substantial risk of a

miscarriage of justice." Commonwealth v. Freeman, 352 Mass.

556, 563-564 (1967).

The defendant contends that the judge "improperly modified"

the standard instruction on credibility of witnesses by adding,

"Innocent mistakes of memory do happen. Sometimes people forget

things, or they get confused, or they remember an event

differently." "[A] trial judge is not constrained to use any

particular language in his [or her] instructions; rather, [the

judge] is required only to provide a full and accurate

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explanation of the governing law applicable to a particular

case." Commonwealth v. Berrio, 43 Mass. App. Ct. 836, 838

(1997). A judge has discretion "to choose the form of

expression best adapted to make the law intelligible to the

jurors." Commonwealth v. Silva, 388 Mass. 495, 507 (1983). The

judge here provided a lengthy instruction to jurors on

evaluating witness credibility. That instruction told jurors to

draw upon their "common sense" and "experience of life" and to

consider a witness's possible bias or motive, appearance,

demeanor, opportunity to observe, intelligence, accuracy of

memory, and inconsistent statements. The judge's instruction,

as a whole, accurately conveyed to jurors their role in

assessing witness credibility and "neither misstated the case

law nor prevented the jury from considering omissions as

inconsistencies." Commonwealth v. Bruce, 61 Mass. App. Ct. 474,

484 (2004). As such, we discern no error and no "substantial

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risk of a miscarriage of justice." Freeman, 352 Mass. at 563-

564.

Based upon the foregoing, we are satisfied that none of the

defendant's claimed errors, alone or in combination, merit a new

trial.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Green, C.J.,
Ditkoff & Hodgens, JJ. 1),

Clerk

Entered: September 12, 2023.

1 The panelists are listed in order of seniority.

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