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 pers uasive 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 D istrict C ourt jury convicted t he 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 finding s 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 summariz ing 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.2 neighbors at the time of the incident. On the morning of
October 3 , 2018 , the defendan t 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 justifi ed 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. A fter struggl ing with the defendant for approximately twenty minutes , the victim man aged to call 911; multiple police officers responded to the scene

. Officer Licinio De P ina testified that he saw the victim being treated by emergency medical service provider s , " bleeding
from the head and covered in blood. " De P ina spoke to the

2 The ball pe e n hammer was an antique owned by the victim.3 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 K enneth Egan , en countered 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 fore arms . T he 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 n either report ed to the officers any injuries of
her own n or claim ed that she had acted in self

- defense.
At the close of the Commonwealth ' s case , defe nse counsel inquired with the judge whether the evidence warranted a self

defense instruction. T he 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 dur ing 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 testifie d that he4 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 . A t the close of the
Commonwealth ' s case , the judge denied the defendant ' s motion for required finding s 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. Su fficiency of the e vidence . 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 c ontends 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)

.5 T he evidence , which included the victim ' s testimony that the
defendant , unprovoked , at tacked 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 defen dant ' 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

. " C onsidering
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 , t he evidence that the defendant grabbed the victim and pulled him down was sufficient to satisfy the6 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 , agg ress ive
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 (19 80 ). 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 tha t 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

- d efense instruct ion

. At the outset , we note that the judge did in fact give a s elf

- defense jury instruction in
h er final charge to the jury. The issue before us is whether ,

3 Th e 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.7 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 , 62 2 (2021)

.

" Before the defendant is enti t led to an instruction on the right to use deadly force in self

- de fe nse , 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). " H owever , 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 which8 the defendant could save

. . . herself only by using deadly
force , and (b) used all reasonable mean s available to retreat from the conflict

. " 4 Teixeira , 486 Mass. at 622

- 623. " F ailure
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 wa s nothing in the evidence at th e close of the
Commonwealth ' s case t o 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 imm inent danger of serious physical harm to
her. " [ S ]om e e vidence " of these things wa s 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 t he defendant claimed t o be defend ing herself occurred after she struck the victim in the head with the hammer

. T he victim expressly

4 As the judge implicitly found and eventually instructed , the standard for self

- defense by deadly force appli ed , 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 " ).9 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 con trary 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 " )

. S ee also Commonwealth v. Camerano , 42 Mass. App.
Ct. 363 , 367 (1997) (disbelief of witness ' s testimony does not prove contrary proposition)

. T h e re was no suggestion during the
victim ' s testimony that the defendant availed herself of a ny 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 , s ince t h e only evidence of the sequ ence of events establish e d that the defendant was the first aggressor , self

defense w as 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 unnecessary10 escalation of conflict necessarily preclude[d] a finding of
self

- defense " )

. Thus , the judge did not erroneously declin e 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 , s ee Commonwealth v. Grisset t , 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 t hat 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 th e defendant to produce testimonial evidence. " Toon , 55 Mass. App. Ct. at 651 n.12 ( and cases cited )

.11 explanation by trial counsel for [t h e i r] actions and [is]

sugg estive of strategy contrived by a defendant viewing the case with hindsight " ( quotation omitted). Commonwealth v. Davis , 481
Mass. 210 , 222 (2019).
T he defendant fails to show trial counsel ' s judgment relating to his decision to call the defendant to te stify w as

" 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 c hance " of obtaining lesser verdict).
Commonwealth v. Lally , 473 Mass. 693 (2016) , on which the
defendant relies , is in apposite. 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 , 48112 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

. W ithout 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 d efendant ' 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 defen dant ' 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 impression13 that he was being urged by the judge to testify " [quotation omitted] ). Accordingly , t he defendant has not shown that trial
counsel ' s performance f e ll " 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

. " Safe rian , 366 Mass.
at 96. Judgment s affirmed

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

Clerk

Entered: September 8 , 2023.

6 The panelists are listed in order of seniority.