Commonwealth v. Marinho
464 Mass. 115
Mass.2013Background
- In 2010 a jury convicted Marinho and Parietti of assault and battery causing serious bodily injury under G.L. ch. 265, § 13A(b); Marinho was acquitted of assault and battery with a dangerous weapon.
- Marinho, not a citizen, was in the U.S. illegally and had been deported by the time of the appeal.
- Marinho moved for a new trial asserting ineffective assistance of counsel for failing to discuss immigration consequences, to explore a plea, and to advocate for a sentence mitigating immigration impact.
- Evidence at trial showed Scherer suffered facial fractures and lasting vision impairment; contested whether injuries met “serious bodily injury.”
- Denying the new trial motion, the court addressed issues including sufficiency of evidence, loss of exculpatory evidence, jury instructions for multiple defendants, and ineffective assistance due to Padilla-related failures.
- Sentence imposed was 2.5 years in a house of correction with 9 months to serve and balance suspended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of serious bodily injury proof | Marinho contends injury evidence didn’t show ‘serious bodily injury.’ | Commonwealth argues testimony supported serious injury and causation. | Sufficient evidence supported serious bodily injury. |
| Causation proof for assault core | Marinho argues insufficient evidence that he caused the injuries. | Commonwealth contends causation could be shown through direct or proximate conduct. | There was no error; substantial evidence supported causation beyond a reasonable doubt. |
| Loss of exculpatory evidence | Loss of Scherer’s statement could have aided cross-examination and credibility. | No concrete evidence of the statement’s contents; speculation insufficient. | Denial of dismissal affirmed; no clear exculpatory materiality established. |
| Effect of failure to instruct on multiple defendants | Trial judge should have used joint-venture instructions to reflect shared liability. | Instructions given properly conveyed distinct charges; no error of law. | No substantial risk of miscarriage; proper guidance given to jurors. |
| Ineffective assistance and Padilla-related prejudice | Counsel failed to advise immigration consequences, discuss plea, and seek a lesser sentence to mitigate deportation risk. | Plea discussions not guaranteed; defense counsel’s strategy was reasonable; no prejudice shown. | Conviction affirmed; motion for new trial denied under Saferian framework; dissent would vacate and grant new trial for prejudice under Padilla/Flores-Ortega framework. |
Key Cases Cited
- Commonwealth v. Latimore, 378 Mass. 671 (1979) (establishes standard for reviewing sufficiency of evidence.)
- Commonwealth v. Baro, 73 Mass. App. Ct. 218 (2008) (temporary loss of vision can constitute serious bodily injury.)
- Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162 (2005) (several weeks of tube-feeding can be serious injury.)
- Commonwealth v. Melton, 436 Mass. 291 (2002) (standard for reviewing unpreserved causation issues.)
- Commonwealth v. Satterfield, 373 Mass. 109 (1977) (prejudice standard in ineffective assistance review.)
- Commonwealth v. Saferian, 366 Mass. 89 (1974) (two-prong test for ineffective assistance.)
- Padilla v. Kentucky, 559 U.S. 353 (2010) (counsel must advise noncitizens about immigration consequences of conviction.)
- Commonwealth v. Clarke, 460 Mass. 30 (2011) (Padilla informs broader duty to discuss immigration consequences.)
- Missouri v. Frye, 566 U.S. 134 (2012) (prejudice standard in plea negotiations context.)
- Lafler v. Cooper, 132 S. Ct. 1376 (2012) (prejudice framework for ineffective assistance in plea offers.)
- Flores-Ortega v. United States, 528 U.S. 470 (2000) (prejudice requires showing defendant would have pursued appeals/pleas.)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard in plea prejudice contexts.)