COMMONWEALTH vs. STEVEN C. MILLER.

NEYMAN, J. Following a bench trial in the District Court, the defendant, Steven C. Miller, was convicted of violating a harassment

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prevention order. See G. L. c. 258E, § 9. The defendant filed a motion for a new trial based on ineffective assistance of counsel. After a nonevidentiary hearing, the motion judge, who was also the trial judge, denied the motion. The defendant now appeals from that denial. [Note 1] Where the defendant's motion and supporting affidavits were steeped in speculative and conclusory averments, and where the motion was not supported by any affidavit from trial counsel or sufficient explanation for the absence of such an affidavit, we conclude that the denial of the motion was not an abuse of discretion. We further write to clarify that in motions for a new trial grounded in claims of ineffective assistance of counsel, an affidavit from successor counsel averring that trial counsel "refused to support the motion" or "would not cooperate with successor counsel," standing alone, is generally insufficient to excuse the absence of an affidavit from trial counsel.

Background. 1. Facts. We summarize the trial evidence as follows. The defendant's former girlfriend's daughter (the victim) obtained a harassment prevention order out of the District Court, pursuant to which the defendant was ordered not to contact the victim. [Note 2] On November 11, 2016, at approximately 10:50 A.M. while the harassment prevention order was still in effect, the victim, who was at work, received two calls on her cell phone from a number that she did not recognize. She answered and "said hello a couple times." Initially, no one responded. She "said hello again and then [] heard someone say [her name]." Although she recognized the voice as the defendant's from prior conversations in person and on the telephone, she asked, "[W]ho is this[?]" The defendant responded, "This is the guy that jerks off to you every night." She testified that she was one "hundred and ten percent" certain that "it was the defendant calling [her]." She subsequently "Googled" the number from the incoming telephone call and learned "that it came from" the Chili's restaurant in Burlington.

Around 11:30 A.M. that same day, Burlington Police Officer Steven Papagno received a dispatch and responded to the victim's place of work. He spoke to the victim, who "[s]eemed very upset, she was crying, shaking heavily, [and] . . . was very noticeably upset . . . ." After their conversation, Officer Papagno contacted

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the defendant on the telephone, identified himself, and explained that he "was investigating a matter that [the defendant] may be involved in." Before Officer Papagno articulated the nature of the matter, the identity of the victim, or any details relating thereto, the defendant interjected, "Did she say that I called her today[?]" and then said, "Well I didn't." Officer Papagno asked the defendant whether he had been at the Chili's restaurant in Burlington that day. The defendant replied that he "was at home all alone on his couch all day." Officer Papagno asked him if anyone could verify his account. The defendant repeated that "he was home alone all day." The tone of the conversation with the defendant was "[a]rgumentative and very heated."

Following the incident, Officer Papagno went to the Chili's in Burlington and viewed several hours of video footage from a surveillance camera in or at that Chili's restaurant. [Note 3] He did not see anyone in the video footage that matched the defendant's description.

2. Pretrial and trial proceedings. Prior to trial, the defendant's attorney (trial counsel) requested that the prosecution provide a bill of particulars, see Mass. R. Crim. P. 13 (b), as appearing in 442 Mass. 1516 (2004), and filed a motion to suppress. The motion to suppress was denied after a hearing. The bill of particulars provided pretrial by the Commonwealth specified, inter alia, that the telephone number appearing on the victim's cell phone caller identification corresponded with that of the Chili's restaurant in Burlington. [Note 4]

The defendant did not testify or call any witnesses on his behalf. The defense relied on cross-examination to elicit

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inconsistencies in the witnesses' testimony [Note 5] and argued that the victim had a motive to lie and lacked credibility. Following trial, the judge explicitly credited the victim's testimony and the police officer's testimony that the defendant anticipated the reason for the officer's telephone call and found that the Commonwealth had sustained its burden of proving the defendant's guilt beyond a reasonable doubt.

3. Posttrial proceedings. After trial, the defendant, represented by successor counsel (appellate counsel), filed several postconviction motions, [Note 6] including a motion for a new trial, accompanied by a memorandum of law, an affidavit from appellate counsel, and his own affidavit. The defendant averred in his affidavit that trial counsel was unprepared, failed to collect discovery items prior to trial including the victim's cell phone records, failed to collect videotapes from the Chili's restaurant, and failed to "put [the defendant] on the stand to testify in [his] own defense." [Note 7] In appellate counsel's affidavit, she averred that she had "one conversation" with trial counsel, and "[a]t that time he told [her] he could not give [her] a copy of his trial file or any materials in it as he had lost his file." Following a nonevidentiary hearing, the judge denied the motion for a new trial in a written memorandum of decision. The defendant timely appealed therefrom.

Discussion. 1. Motion for a new trial. The defendant contends that the record establishes trial counsel's ineffective assistance and thus the judge abused her discretion in denying his motion for a new trial. [Note 8] The argument is unavailing.

Pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501

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(2001), a judge may grant a new trial "if it appears that justice may not have been done." In reviewing the denial of such a motion, "we examine the motion judge's conclusions only to determine whether there has been a significant error of law or other abuses of discretion" (quotation and citation omitted). Commonwealth v. Ferreira, 481 Mass. 641, 648 (2019). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "Motions for a new trial are granted only in extraordinary circumstances" (citation omitted). Commonwealth v. Comita, 441 Mass. 86, 93 (2004). Where, as here, the motion judge was the trial judge, "[r]eversal for abuse of discretion is particularly rare . . . ." Commonwealth v. Rice, 441 Mass. 291, 302-303 (2004), quoting Commonwealth v. Schand, 420 Mass. 783, 787 (1995).

Where a motion for a new trial is based on ineffective assistance of counsel, the defendant must show that the behavior of counsel fell "below that . . . [of] an ordinary fallible lawyer" and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "[A]rguably reasoned tactical or strategic judgments" do not amount to ineffective assistance of counsel unless they are "manifestly unreasonable" when made. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979), quoting Commonwealth v. Adams, 374 Mass. 722, 728-729 (1978). The prejudice standard under the second prong of the Saferian ineffective assistance of counsel test is "effectively the same" as the substantial risk of a miscarriage of justice standard. Commonwealth v. Millien, 474 Mass. 417, 432 (2016).

The primary issue raised by the defendant is whether trial counsel's failure to obtain both the victim's and the defendant's cell phone records constituted ineffective assistance. [Note 9] As previously mentioned, the motion was supported by (1) the defendant's

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affidavit claiming that trial counsel was unprepared and failed to collect the victim's cell phone records "to further establish [he] never called the alleged victim," and (2) appellate counsel's affidavit averring that trial counsel told her that he had lost his file.

As the judge hearing the motion for a new trial was also the trial judge, we grant special deference to her decision. See Commonwealth v. Wolinski, 431 Mass. 228, 235 (2000); Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Therefore, our analysis starts with the judge's written findings. Here, the judge found that the victim's cell phone records [Note 10] were consistent with her trial testimony and confirmed that the two telephone calls to her cell phone came from a telephone associated with Chili's restaurant in Burlington; the victim's cell phone records comported with the Commonwealth's theory of the case set forth in the bill of particulars filed by the Commonwealth; defense counsel -- whom the judge observed throughout trial -- "demonstrated a command of the evidence in his arguments and response to arguments"; the defendant did not file any affidavit from his trial counsel; and the defendant's claims failed to detail how trial counsel's alleged shortcomings fell measurably below the standard of an ordinary fallible lawyer or likely deprived the defendant of an otherwise available, substantial ground of defense.

The record supports the judge's conclusions. The victim's cell phone records are consistent with her trial testimony that she received two calls from a telephone number associated with Chili's restaurant in Burlington at 10:52 A.M. and 10:53 A.M. The cell phone records also substantiate the Commonwealth's bill of particulars, see Mass. R. Crim. P. 13 (b), which specified that the calls came from a telephone number associated with the Chili's

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restaurant in Burlington. [Note 11] Accordingly, the use of the victim's cell phone records at trial would have corroborated her testimony and supported the Commonwealth's theory of the case. In addition, trial counsel's strategic cross-examination of the victim and Officer Papagno raised inconsistencies between their accounts of the victim's statements. See note 5, supra. Had trial counsel introduced the victim's cell phone records, he could have undermined anything achieved on cross-examination and bolstered the victim's account. Thus, even assuming arguendo that trial counsel's alleged failure to review the victim's cell phone records prior to trial fell below that of an ordinary fallible lawyer, the defendant cannot satisfy the second or "substantial risk" prong of the ineffective assistance test.

As to the defendant's cell phone records, the defendant does not articulate what information therein would have supported his defense. He did not include a copy in the appellate record and did not provide an explanation in any affidavit as to what the records would have revealed. Also, neither party contends that the defendant called the victim from his cell phone. Here again, the argument is speculative and conclusory.

Furthermore, under our deferential standard of review, we note that the judge was in the best position, both at trial and on the rule 30 motion, to assess the credibility and viability of the underlying claims, the supporting affidavits, and the motion itself. See Wolinski, 431 Mass. at 235. See also Commonwealth v. Upton, 484 Mass. 155, 162 (2020) (motion judge who also conducted trial was in "superior position to assess the credibility of the defendant's claims" [citation omitted]); Commonwealth v. Leng, 463 Mass. 779, 787 (2012) ("judge was not required to accept as true the assertions in the defendant's affidavit. She could evaluate it in light of such factors as bias and self-interest and reject the affidavit as not credible"); Commonwealth v. White, 409 Mass. 266, 277 (1991) ("Unlike this court, the trial judge had the opportunity to observe and evaluate all of the witnesses at trial, as well as defense counsel . . . . We will not disturb [her] judgment"). [Note 12]

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In this regard, the absence from the defendant's moving papers of an affidavit from trial counsel or averment from appellate counsel explaining the absence of any such affidavit is conspicuous and significant. See Commonwealth v. Williams, 71 Mass. App. Ct. 348, 361 n.14 (2008), quoting Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 553-554 (2002) ("defendant's claim in his affidavit that trial counsel was ineffective in his preparation is 'conspicuously marred' by his failure to file an affidavit from his attorney, or to even indicate that he sought to obtain an affidavit from counsel"). See also Commonwealth v. Gonzalez, 443 Mass. 799, 809 n.10 (2005) ("It is significant that there is no affidavit from trial counsel to inform us of his strategic reasons for these decisions"). We take the opportunity to further clarify the implications of the absence of trial counsel's affidavit, and related issues.

2. Affidavit requirement. Under rule 30, a moving party generally must file and serve affidavits in support of its position. See Mass. R. Crim. P. 30 (c) (3). [Note 13] Massachusetts courts have reaffirmed that "[a] judge may deny a motion for a new trial without an evidentiary hearing where the moving party 'suspicious[ly] fail[s] to provide pertinent information from an expected and available source.'" Upton, 484 Mass. at 162-163, quoting Commonwealth v. Goodreau, 442 Mass. 341, 354 (2004). See Leng, 463 Mass. at 787; Gonzalez, 443 Mass. at 809 n.10; Thurston,

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53 Mass. App. Ct. at 553-554.

We have also recognized, in the context of ineffective assistance claims, that "a judge reasonably may draw a negative inference in many . . . cases and conclude that there is no affidavit from counsel because a truthful affidavit would not assist the defendant." Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014). However, we have cautioned that "other situations" may exist where the failure to provide an affidavit from prior counsel may be excused. Id. For example, we have recognized that prior counsel may repeatedly refuse to respond to communications from successor counsel or may refuse to provide an affidavit despite having favorable information to assist the former client. See id. (noting possible scenarios where prior counsel may be reluctant to cooperate with ineffective assistance allegation or where prior counsel refuses to respond to any communications from successor counsel). In such situations, the absence of an affidavit generally will not, standing alone, defeat a claim of ineffective assistance of counsel. See id. ("the lack of an affidavit [from uncooperative prior counsel] cannot be a talisman that, by itself, defeats a claim of ineffective assistance of counsel").

The present case does not constitute an "other situation" where the failure to provide an affidavit from trial counsel may be excused. Here, appellate counsel averred in her affidavit that she had "one conversation" with trial counsel in which he stated that he had lost his file. Absent from appellate counsel's affidavit was any averment explaining the absence of trial counsel's affidavit. See Williams, 71 Mass. App. Ct. at 361 n.14 (2008); Thurston, 53 Mass. App. Ct. at 553-554. It is true that appellate counsel advised the judge at the hearing on the motion for a new trial that she "did contact [trial counsel] in this matter" and "did speak to him in depth. He refused to provide any support." The defendant contended, at oral argument, that appellate counsel's representation as an officer of the court sufficed to explain trial counsel's inaction. We disagree.

As discussed, rule 30 requires the filing of written affidavits. See Mass. R. Crim. P. 30 (c) (3); E.B. Cypher, Criminal Practice and Procedure § 42.33 (4th ed. 2014) ("Under the [r]ule, the moving party must file and serve on the other party affidavits in support of his position"). Even assuming that a verbal representation of counsel could in theory be an adequate substitute, the representation here was too ambiguous to suffice. Specifically, appellate counsel represented to the judge only that trial counsel

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"refused to provide any support." This statement, standing alone, is generally insufficient to excuse the absence of an affidavit from trial counsel. An affidavit stating that trial counsel "refused to support the motion" or "would not cooperate with successor counsel," without more, is inherently vague and susceptible to varied interpretations. There are myriad reasons why trial counsel may refuse to "support" a motion for a new trial based on ineffective assistance of counsel. In the present case, for example, it is conceivable that trial counsel "refused to provide any support" because he could not recall the events at issue or did not want to support the defendant's claim. However, it is also possible that trial counsel's affidavit would have contradicted, undermined, or refuted the defendant's claims. It is notable, here, that appellate counsel did not even aver that she sought to obtain an affidavit from counsel. [Note 14] See Williams, 71 Mass. App. Ct. at 361 n.14. Likewise, she did not aver that trial counsel was unwilling to discuss his trial strategy or unwilling to provide an affidavit. Without an affidavit detailing the facts surrounding trial counsel's refusal to provide support or cooperate with the motion, we have no basis to overrule the judge's discretionary determination. [Note 15] See White, 409 Mass. at 277.

3. Sufficiency of the evidence. The defendant also argues that the judge erred in denying his motion for a required finding of not guilty. The facts delineated supra refute the defendant's claim. The victim recognized the defendant's voice during the telephone call, and the defendant's unprompted comment to Officer Papagno reasonably could have been construed as an admission and as evidence of incriminating knowledge. See Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957). Viewed in the light most favorable to the Commonwealth, this evidence was more than sufficient to conclude that the defendant violated the no-contact

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provision of the harassment prevention order. Thus, the judge did not err in denying the motion for a required finding of not guilty. See Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).

Judgment affirmed.

Order denying motion for a new trial affirmed.