Criminal – Ineffective assistance

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Where a jury convicted a defendant of assault and battery on a police officer (ABPO) and resisting arrest, the convictions must be vacated because the defendant’s trial counsel was ineffective in failing to develop a defense and challenge the commonwealth’s case.

“On September 21, 2021, at around 1 A.M., Norwood police officers Ivory and O’Brien, along with Sergeant Joseph, responded to an apartment building to investigate a report of domestic violence. …

“The defendant argues his trial counsel’s performance was ineffective because he did not pursue a viable defense. During the trial, the Commonwealth called two witnesses: Officer Ivory and Sergeant Joseph; the defendant did not call any witnesses to testify.

“For the defendant’s first charge, ABPO, trial counsel, in his opening statement, appeared to signal a defense that the defendant’s contact with Officer Ivory was not intentional. … Specifically, counsel suggested to the jury that the defendant was ‘not able to properly balance himself,’ which ‘le[d] to a count of an assault and battery on a police officer.’ In cross-examining the officers, however, trial counsel only asked one question pertaining to whether the defendant’s touching was unintentional, did not seek to develop the evasive answer he received, and appeared to abandon the unintentional-contact defense in his closing. As a result, defendant’s trial counsel left him ‘denuded of a defense’ as to the ABPO charge (citation omitted). …

“As to the defendant’s resisting arrest charge, his trial counsel appeared to pursue a defense that (1) Officer Ivory restrained the defendant for the purposes of putting him in protective custody, not to effect an arrest; and (2) the defendant was not aware he was being arrested, an essential element of the charge. … This inference is supported by trial counsel’s motion for a required finding at the close of the Commonwealths’ case, in which he argued that the evidence failed to establish the defendant was aware he was being arrested. In response, the Commonwealth asserted that the defendant had been placed under arrest after allegedly assaulting Officer Ivory.

“Despite raising this issue in the motion for a required finding, counsel failed to develop it during trial. …

“In trial counsel’s closing, he presented to the jury one ‘theory’ of defense — ‘the police have gone beyond the bounds here.’ This strategy was manifestly unreasonable because after failing to develop and abandoning two other defenses, trial counsel pursued a defense that, even if the jury were to believe it, would not have led to an acquittal on either charge. …

“As to prejudice, trial counsel’s strategy likely deprived the defendant of an available and substantial defense. … The only evidence presented against the defendant on both charges was the testimony of two police officers who took the unusual action of attempting to remove an individual, a forty-one year old man, from his own home and into custody at a police station for ‘his safety’ due to his consumption of alcohol. In light of the circumstances surrounding that decision — including the apparent lack of probable cause to take the defendant into custody — there was a clear basis for challenging the officers’ credibility. … A defense theory focused on police bias was therefore both substantial and available. … With probable cause called into question, the officers would have been obligated to provide justification as to why they were attempting to remove a man from his home who was not the subject of the 911 call that had brought them to the apartment building and posed no apparent danger to himself or anyone else. A jury might reasonably have concluded that these officers were retaliating because they believed the defendant had spoken back to them and, as a result, their testimony about both the touching and informing the defendant he was under arrest was not credible.

“The officers’ actions would have become even more dubious in the eyes of a jury if trial counsel had developed the officers’ testimony as to the defendant’s alleged instigative conduct towards them, including that the defendant asked to speak to a supervisor upon their arrival; ‘made some wise comments that he wasn’t going to listen [to the officers]’; and, reached for a beer when the officers had told him to retrieve his phone. Trial counsel should have developed this testimony to show bias and a potential alternative motive for the defendant’s arrest. Where the officers likely lacked probable cause, and defendant’s trial counsel failed to cross-examine the police witnesses for bias, it is evident that ‘better work might have accomplished something material for the defense.’ …

“The judgments are vacated, and the verdicts are set aside.”

Commonwealth v. Noj (Lawyers Weekly No. 81-093-25) (11 pages) (Docket No. 23-P-1253) (June 16, 2025).

Click here to read the full text of the opinion.