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.
2

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."
3

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 
4

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 
5

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, 
6

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).
7

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.