Commonwealth v. Brown

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SJC-12313

COMMONWEALTH vs. JOHNELLE M. BROWN.

Middlesex. November 7, 2017. - March 16, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,

JJ.

Assault and Battery. Intimidation of Witness. Witness,

Intimidation. District Court, Jurisdiction. Practice,

Criminal, New trial, Assistance of counsel, Instructions to

jury, Sentence, Allocution, Restitution. Restitution.

Complaint received and sworn to in the Cambridge Division

of the District Court Department on May 2, 2014.

The case was tried before Michele B. Hogan, J.; a

restitution hearing was held before Daniel C. Crane, J.; and a

motion for postconviction relief was heard by Hogan, J.

The Supreme Judicial Court granted an application for

direct appellate review.

Luke Rosseel for the defendant.

Melissa Weisgold Johnsen, Assistant District Attorney, for

the Commonwealth.

CYPHER, J. A jury in the District Court convicted the

defendant, Johnelle M. Brown, of assault and battery and witness

2

intimidation. After beginning the sentencing hearing, the trial

judge revoked the defendant's bail and delayed sentencing for

four days. After reconvening, the judge imposed a sentence of a

one-year commitment to a house of correction, suspended for two

years, probation, and restitution. The defendant disputes the

District Court's jurisdiction over the witness intimidation

prosecution. The defendant also appeals from the denial of her

motion for a new trial, revocation of bail, and order of payment

of restitution. We affirm.

Facts. We recite the facts as the jury could have found

them, reserving certain facts for later discussion.

Mahboobe Aria and Mehdi Aria1 managed a restaurant. On

April 6, 2014, the restaurant closed at 2:30 A.M. At

approximately 2:40 A.M., Mahboobe and Mehdi were completing

tasks relevant to closing the restaurant. Mehdi was outside,

cleaning the outdoor seating. Mahboobe was inside.

The defendant and a man arrived in an automobile and parked

outside the restaurant. The man was not identified by name at

trial, but the defendant's motion for a new trial, appellate

brief, and affidavits identify this man as Tyrell Carr. Carr

remained in the automobile while the defendant went into the

1 We refer to Mahboobe Aria and Mehdi Aria by their first

names to avoid confusion.

3

restaurant. Mahboobe was near the cash register when the

defendant walked into the restaurant.

Mahboobe told the defendant that the restaurant was closed.

The defendant said that she needed to use the bathroom.

Mahboobe refused to allow the defendant to use the bathroom

because Mahboobe had already cleaned it. The defendant said

that she would "call [her] boyfriend" if Mahboobe refused her

use of the bathroom; Mahboobe still refused. The defendant took

a bottle of juice from a refrigerator in the restaurant, placed

it in front of the register, and told Mahboobe that she was

going to purchase it. Mahboobe replied that the credit card

machine and cash register were already closed so she could not

make any more sales. The defendant opened the door to the

restaurant and called out to someone. Carr came inside the

restaurant and loudly asked Mahboobe why she was not allowing

the defendant to use the bathroom. Mahboobe reiterated that the

bathroom was closed.

Carr waved a credit card at Mahboobe and offered to pay for

the bottle of juice the defendant had placed on the counter.

Mahboobe refused payment, explaining that the restaurant and

credit card machine were closed. Mehdi entered the restaurant

and asked the defendant and Carr to leave. The defendant took

the juice bottle off the counter and threw it in Mahboobe's

direction. The bottle struck glass that separates the cashier

4

from the kitchen. Carr grabbed Mehdi. Carr hit and slapped

Mehdi's face and pulled his shirt. While Carr struggled with

Mehdi, the defendant kicked the bathroom door. Mahboobe

retrieved a telephone from underneath the cash register and

moved out from behind the counter toward the defendant.

Mahboobe was standing one to two feet away from the defendant

when she tried to dial 911. The defendant grabbed the wrist of

the hand in which Mahboobe was holding the telephone and said,

"You're bad fuck." After approximately one minute, the

defendant let go of Mahboobe's wrist. As Mehdi and Carr

continued to fight, Mahboobe left the restaurant and telephoned

911. The defendant followed. The defendant asked Mahboobe why

she telephoned the police. The defendant then punched Mahboobe

in the face, causing Mahboobe to drop the telephone. The

telephone fell to the ground and broke. A man was inside of a

nearby bar when he "heard a commotion next door, like tables and

chairs being banged around." He and a bar security employee

went outside and saw Mahboobe being punched in the face.

The defendant opened the door to the restaurant and told

Carr that Mahboobe had telephoned the police. Carr came out of

the restaurant and drove away with the defendant in a vehicle

that had been parked on the street.

5

A police officer responded to the 911 call. Upon arrival,

he noticed that Mahboobe had a red mark on her face and Mehdi's

head and mouth were bleeding.

Discussion. 1. Jurisdiction. The defendant argues that,

following our decision in Commonwealth v. Muckle, 478 Mass. 1001

(2017), the District Court lacked jurisdiction over her case.2

General Laws c. 218, § 26 (jurisdiction statute), confers

jurisdiction upon the Boston Municipal Court (BMC) and District

Court over prosecutions for "intimidation of a witness or juror

under [G. L. c. 268, § 13B]." General Laws c. 268, § 13B (1)

(c) (i), (iii) (intimidation statute), proscribes intimidation

of, inter alia, "a witness or potential witness[,] . . . a

judge, juror, grand juror, prosecutor, police officer, [F]ederal

agent, investigator, defense attorney, clerk, court officer,

probation officer or parole officer." In Muckle, supra at 1003,

we held that, "the express inclusion of witnesses and jurors [in

G. L. c. 218, § 26,] excludes all other persons listed in [G. L.

c. 268, § 13B,] who are not expressly included." In that case,

the defendant was accused of intimidating an attorney in a case

2 The defendant raised this claim for the first time in a

letter pursuant to Mass. R. A. P. 16 (l), as amended, 386 Mass.

1247 (1982), because Commonwealth v. Muckle, 478 Mass. 1001

(2017), was decided after she had submitted her brief.

Nonetheless, we consider the defendant's argument because issues

of "subject matter jurisdiction 'may be raised at any time.'"

Commonwealth v. DeJesus, 440 Mass. 147, 151 (2003), quoting

Commonwealth v. Cantres, 405 Mass. 238, 240 (1989).

6

to which he was a party. Commonwealth v. Muckle, 90 Mass. App.

Ct. 384, 385-388 (2016). We therefore affirmed the dismissal of

the complaint in the BMC for lack of jurisdiction. Muckle, 478

Mass. at 1004.

The defendant seeks to analogize her case to Muckle,

arguing that the District Court did not have jurisdiction

because, at the time of the assault, Mahboobe was not a

"witness" but was a "potential witness." The defendant seeks to

draw a distinction between a "witness" and a "potential witness"

in the intimidation statute. However, when assessing the

District Court's jurisdiction, we must begin our interpretation

with the meaning of "witness" in the jurisdiction statute. We

interpret a statute's text, construing its words "by the

ordinary and approved usage of the language." Energy Express,

Inc. v. Department of Pub. Utils., 477 Mass. 571, 576 (2017),

quoting Meikle v. Nurse, 474 Mass. 207, 210 (2016). We are

bound to "interpret the statute so as to render the legislation

effective, consonant with sound reason and common sense."

Harvard Crimson, Inc. v. President & Fellows of Harvard College,

445 Mass. 745, 749 (2006).

The term "witness" is broadly used to characterize an

individual with information that is pertinent to an

investigation or case and is often used interchangeably with

"potential witness." See Commonwealth v. Rakes, 478 Mass. 22,

7

41 (2017) (describing individuals who might testify in future as

"witnesses" and "potential witnesses"); Commonwealth v. Squires,

476 Mass. 703, 711 (2017) (Gaziano, J., dissenting) (using

"potential witnesses" to describe those who might see crime

occurring); Commonwealth v. Williams, 475 Mass. 705, 708 (2016)

(using "potential witnesses" to describe people interviewed by

police); Commonwealth v. Watkins, 473 Mass. 222, 239-241 (2015)

(using "witnesses" to describe people who testified during trial

and those who did not testify but had relevant information that

could have been offered during trial); Commonwealth v. Brewer,

472 Mass. 307, 311 n.10, 313-315 (2015) (using "witness" to

describe person present at shooting who gave statement to

police, and describing people who had information to share at

trial but did not testify as "witnesses" and "potential

witnesses"); Commonwealth v. Collins, 470 Mass. 255, 270-273

(2014) (using "potential witness" to describe those on witness

list during trial); Commonwealth v. Robinson, 444 Mass. 102,

110-111 (2005) (using "witness" to describe person's status when

he was going to testify at hearing and after hearing had

concluded); Commonwealth v. Finn, 362 Mass. 206, 207-208 (1972)

(using "witnesses" to describe individuals present at scene of

crime when discussing investigatory conversations with police

and testimony at trial); Commonwealth v. McCreary, 45 Mass. App.

Ct. 797, 800 (1998) (using "prospective witness," "potential

8

witness," and "witness" when describing facts of several witness

intimidation cases). The myriad uses of "witness" and its

frequent convergence with "potential witness" suggest the

ordinary meaning of "witness" encompasses victims of

intimidation who could also be described as "potential

witnesses." Such a holding is consistent with our decision in

Muckle, where we interpreted "juror" in the jurisdictional

statute to encompass "juror" and "grand juror" in the

intimidation statute.

The distinction advocated by the defendant would cause the

District Court to gain and lose jurisdiction repeatedly over

prospective witness intimidation prosecutions during the course

of a crime, investigation, trial, and subsequent proceedings.

Indeed, Mahboobe's status at the time of the assault could be

characterized as both a "witness" and a "potential witness."

She was a "witness" to the assault of Mehdi with information to

provide to the 911 operator and police officers and a "potential

witness" to further criminal activity. When the trial

commenced, she was a "potential witness" who might have been

called to testify and, upon being called, became a "witness."

Common sense dictates that "witness" in the jurisdictional

statute includes "a witness or potential witness at any stage of

a criminal investigation, grand jury proceeding, trial or other

criminal proceeding of any type," as protected by G. L. c. 268,

9

§ 13B (1) (c) (i). Therefore, the District Court properly

exercised jurisdiction over the prosecution of the defendant for

witness intimidation.

2. Motion for a new trial. The defendant moved for a new

trial, arguing that counsel was constitutionally ineffective,

the jury were improperly instructed, her right to allocution was

violated, her right not to be placed in jeopardy twice was

violated, and her restitution order was invalid.3 In support of

her motion for a new trial, the defendant submitted numerous

affidavits and exhibits. After a nonevidentiary hearing, the

judge denied the defendant's motion for a new trial "under all

theories" but did not issue a written decision.

The defendant appeals from the denial of her motion for a

new trial, repeating the grounds on which she sought relief

below. A judge may grant a motion for a new trial "if it

appears that justice may not have been done." Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001). The judge may

decide the motion on the basis of affidavits if those affidavits

and the motion raise no "substantial issue." Mass. R. Crim. P.

3 We address the merits of each of the defendant's claims,

but do not necessarily analyze each argument she advances in

support of those claims. To the extent that we have not

specifically addressed other points made by the defendant in her

brief, they "have not been overlooked. We find nothing in them

that requires discussion." Commonwealth v. Domanski, 332 Mass.

66, 78 (1954).

10

30 (c) (3), as appearing in 435 Mass. 1501 (2001). "The

decision on a motion for a new trial, as well as the decision

whether to decide the motion on the basis of affidavits or to

hear oral testimony, is left largely to the sound discretion of

the judge." Commonwealth v. Stewart, 383 Mass. 253, 257 (1981).

We review the judge's denial of the defendant's motion for a new

trial for clear error, according greater deference to that

decision where, as here, the motion judge also presided over the

trial. Commonwealth v. Leng, 463 Mass. 779, 781 (2012) ("We

extend special deference to factual determinations made by a

motion judge who also was the trial judge . . ."); Commonwealth

v. Degro, 432 Mass. 319, 334 (2000) ("A motion judge's findings

will not be disturbed absent clear error").

a. Ineffective assistance of counsel. In his opening

statement, defense counsel argued that the defendant was

defending her property, a debit card that Mahboobe had taken

from her and refused to return. Defense counsel presented no

witnesses; instead, he elicited testimony in support of that

defense during cross-examination. The defendant claims that

trial counsel was ineffective in failing to develop sufficient

evidence of the defense of property and in advising her not to

testify. Specifically, she alleges that trial counsel should

have called Carr to testify in support of her defense and that

he should not have advised the defendant not to testify. As

11

explained infra, even if the information provided in the

affidavits were presented at trial, when considered in context

with the testimony of the Commonwealth's witnesses, "we are not

persuaded that [testimony] likely would have influenced the

jury's decision." Commonwealth v. Duran, 435 Mass. 97, 103-104

(2001) (no ineffective assistance of counsel where potential

testimony that could have resulted from investigation would have

been outweighed by "strong" contradictory evidence).

During cross-examination, defense counsel elicited from the

responding police officer that Mahboobe gave him the defendant's

debit card. In contrast, Mahboobe testified that the police

found the debit card on the restaurant's floor. Counsel sought

to exploit the difference between these statements to suggest

that Mahboobe had kept the defendant's debit card, so the

defendant had had to use force to recover the card. The judge

declined counsel's request for a "defense of property" jury

instruction and permission to argue that theory in his closing

argument.4

4 A defendant may successfully assert a defense of property

defense if "(1) the defendant used only nondeadly force, and (2)

the force used was 'appropriate in kind and suitable in degree,

to accomplish the purpose.'" Commonwealth v. Haddock, 46 Mass.

App. Ct. 246, 248-249 (1999), quoting Commonwealth v. Goodwin,

57 Mass. 154, 158 (1894). The defendant must present "credible

evidence" that she was defending her property in order to raise

such a defense. Haddock, supra at 248.

12

In furtherance of her claim in the motion for a new trial,

the defendant submitted affidavits from Carr and herself about

what their testimony would have been had defense counsel called

them as witnesses.5 Implicit within the defendant's argument is

the contention that, after investigating, counsel would have

introduced Carr as a defense witness. See Commonwealth v. Lang,

473 Mass. 1, 15–16 (2015) (Hines, J., concurring) ("a claim of

ineffective assistance of counsel that focuses on counsel's

asserted failure to investigate a . . . defense is generally,

and perhaps necessarily, linked to a claim that counsel was

ineffective for not presenting . . . [that] defense at trial").

On appeal, the defendant has not demonstrated that the judge

committed a clear error in denying the motion for a new trial.

Counsel was ineffective if his conduct fell "measurably

below that which might be expected from an ordinary fallible

lawyer" and "likely deprived the defendant of an otherwise

The defendant's ineffective assistance of counsel argument

is premised on the theory that counsel was ineffective for not

introducing sufficient evidence to merit a defense of property

instruction. In making such an argument and failing to raise

any claim that the judge erred, the defendant implicitly

concedes that the evidence presented at trial was insufficient

to warrant a defense of property instruction.

5 Mahboobe is not identified by name in the affidavits, but

it appears that both parties are referring to Mahboobe when

describing their interactions with the woman working at the

restaurant. Therefore, when summarizing the affidavits, we use

Mahboobe's name where appropriate.

13

available, substantial ground of defence." Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). "In regard to the latter

requirement, there ought to be some showing that better work

might have accomplished something material for the defense"

(quotations omitted). Commonwealth v. Bell, 460 Mass. 294, 303

(2011), quoting Commonwealth v. Johnson, 435 Mass. 113, 123

(2001).

Carr's affidavit, considered with the evidence presented by

the Commonwealth, is insufficient to show that his testimony

"might have accomplished something material for the defense."

See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

Carr's affidavit is best summarized as follows: Carr followed

the defendant into the restaurant after he witnessed an argument

inside the restaurant; the defendant told Carr that Mahboobe had

her debit card; both the defendant and Carr left the restaurant

at the urging of Mahboobe; Mahboobe held the defendant's debit

card over her head while the defendant struggled to get the

card; the defendant's "hand came into contact with [Mahboobe's]

face"; and both Carr and the defendant left the area in Carr's

automobile. This potential testimony is only credible if all

percipient witnesses are disbelieved. See Commonwealth v.

Jenkins, 458 Mass. 791, 809 (2011) ("Even had the attorney's

advice been substandard, it would have made no difference. For

14

the defendant to prevail, the jury would have had to disbelieve

the testimony of virtually every other witness").

Counsel exploited inconsistencies in the testimony about

whether the debit card was found on the floor or given to police

by Mahboobe as skillfully as the facts permitted. Although this

discrepancy could have bolstered the proposed defense testimony,

such a sliver of support is not enough to yield a conclusion

that this testimony would have changed the outcome. Therefore,

the defendant was not prejudiced by the lack of testimony and

the judge did not err in denying the motion for a new trial.

The second claim raised under the rubric of ineffective

assistance of counsel is the defendant's claim that counsel's

advice caused her to unknowingly waive her right to testify.

Testifying in one's own criminal defense is a fundamental right

that must be waived knowingly and intelligently. Jenkins, 458

Mass. at 803. The defendant has the burden of proving by a

preponderance of the evidence that, absent counsel's advice, she

would have testified. Commonwealth v. Lucien, 440 Mass. 658,

671 (2004). "It is not enough to say that counsel had

discouraged [her] from testifying." Id.

The judge did not abuse her discretion when she denied the

motion for a new trial. The defendant's affidavit is best

summarized as follows: she asked Mahboobe to use the restroom;

Mahboobe said the defendant would have to make a purchase in

15

order to use the restroom; the defendant gave Mahboobe her debit

card and tried to make a purchase; Mahboobe took the defendant's

debit card but told the defendant she did not meet the ten-

dollar minimum required for all debit card purchases; the

defendant asked for her debit card; Mahboobe refused to return

the debit card; Carr entered the restaurant and encouraged the

defendant to leave; Mahboobe ushered both Carr and the defendant

out of the restaurant, still holding the defendant's debit card;

outside, Mahboobe held the defendant's debit card over the

defendant's head; while the defendant reached for the card, her

hand hit Mahboobe; the defendant never saw Mahboobe holding a

telephone and did not knock a telephone from Mahboobe's hand;

she and Carr left in Carr's automobile.

The defendant's affidavit alleges that she would have

testified had counsel informed her that her testimony would have

been necessary to advance a defense of property defense. When

asking for a jury instruction on defense of property, counsel

indicated that he had discussed the decision to testify with the

defendant after Mahboobe testified. The defendant was aware of

all testimony against her. Although counsel may have misjudged

the minimum showing required to merit a defense of property jury

instruction, the defendant nonetheless knew that the jury had

heard no testimony about Mahboobe's keeping the defendant's

debit card and the defendant seeking to recover it. "It can

16

reasonably be inferred that the defendant, after listening to

the testimony of the Commonwealth witnesses, realized that the

jury would not hear [her] version of the events unless [she]

placed it before them." Degro, 432 Mass. at 337. Nothing in

the record, including the defendant's affidavit, indicates that

counsel denied the defendant the opportunity to make her own

decision. See Commonwealth v. Marrero, 459 Mass. 235, 242

(2011) (defendant did not prove that counsel sharing his "view"

that defendant should not testify caused defendant involuntarily

to waive right to testify). The judge did not abuse her

discretion by concluding that the defendant simply did not meet

the burden of proving that her waiver was involuntary,

unintelligent, or unknowing.

b. Inadequate jury instructions. The judge told the

jurors: "It's essential that you confine your deliberations

only to the evidence which is presented to you in the

courtroom." The defendant contends that because the judge did

not instruct the jury to refrain from researching the case on

the Internet, jurors could have searched for information about

the defendant and found two news articles published online about

the defendant's past alleged criminal activity. The defendant

did not object to this omission at trial or request that the

judge specifically instruct the jury to refrain from Internet

research. Therefore, we consider whether the omission was error

17

and, if so, whether it created a substantial risk of a

miscarriage of justice. Commonwealth v. Horne, 476 Mass. 222,

225-226 (2017).

The absence of a jury instruction specifically prohibiting

research on the Internet is not, in and of itself, reversible

error. The judge instructed the jury to refrain from outside

research, using social media, visiting the scene of the

incident, and "talk[ing] to anyone outside of the jury about the

case." The better practice would have been to include in the

instructions a prohibition on Internet research. See

Commonwealth v. Rodriguez, 63 Mass. App. Ct. 660, 678 n.11

(2005) ("[G]iven the simplicity, speed, and scope of Internet

searches, allowing a juror to access with ease extraneous

information about the law and the facts, trial judges are well

advised to reference Internet searches specifically when they

instruct jurors not to conduct their own research or

investigations"). But this omission was not error where the

judge's instruction forbade consideration of any outside

information.

Further, the defendant has demonstrated no substantial risk

of a miscarriage of justice. Jurors are presumed to have

followed the judge's instruction not to consider any outside

information. See Commonwealth v. Watkins, 425 Mass. 830, 840

(1997) ("We presume that a jury follow all instructions given to

18

it"). Nor is there any evidence in the record to rebut that

presumption. The record is devoid of evidence of any jurors

using the Internet for any outside research, including

discovering any information about the defendant.6 Without any

indication that the jury were exposed to extrajudicial

information about the defendant, there is no substantial risk of

a miscarriage of justice in allowing the defendant's convictions

to stand.

c. The sentencing hearing. After her convictions, the

judge held a sentencing hearing. The Commonwealth recommended a

one-year sentence in a house of correction, with the defendant

serving ninety days and the balance of the sentence suspended

for two years. Defense counsel requested probation. The judge

allowed defense counsel to present mitigating information about

the defendant, including details of her background and that she

6 The defendant's argument that she could not build such a

record because she could not contact jurors is without merit.

Rule 3.5 (c) of the Massachusetts Rules of Professional Conduct,

as appearing in 471 Mass. 1428 (2015), permits attorneys to

initiate contact with jurors after a verdict. The attorney must

notify counsel for the opposing party five business days before

contacting any juror. This rule went into effect on July 1,

2015. An attorney may contact jurors who were discharged before

July 1, 2015, "if the case was on appeal as of that date."

Commonwealth v. Moore, 474 Mass. 541, 551 (2016). The defendant

filed her notice of appeal from the verdicts on February 5,

2015, and submitted her motion for a new trial on April 6, 2016.

The defendant filed her notice of appeal from the denial of the

motion for a new trial on January 3, 2017, allowing her notice

of both the rule and our interpretation of its retroactivity.

19

was "very sorry" about the incident. The judge then allowed the

defendant to speak. The defendant told the judge that she

wished she had testified. The judge told the defendant that she

had had an opportunity to testify at trial and, now that the

trial was over, the judge was "not going to hear [the

defendant's] side." The defendant further indicated her

willingness to testify or to be subjected to the Commonwealth's

cross-examination. The judge then adjourned and ordered the

defendant held without bail until the hearing resumed four days

later.7

When the hearing resumed, defense counsel spoke more about

the defendant's background and requested mercy in the

defendant's sentencing, reporting that she had been "absolutely

distraught" while in custody. The judge addressed the

defendant, saying, "I trust that I got your attention by holding

you over the weekend in custody." The judge then sentenced the

defendant to one year in a house of correction, suspended for

two years, and ordered her to pay restitution.8

7 The final day of trial and the first sentencing hearing

were held on Thursday, January 22, 2015. The judge adjourned

the hearing and held the defendant without bail until Monday,

January 26, 2015.

8 The judge also required the defendant to have no contact

with the Arias or their restaurant, to have a mental health

evaluation, and to attend anger management.

20

i. Right to allocution. The modern meaning of

"[a]llocution is . . . the right to make a statement to the

sentencing judge before he pronounces sentence." United States

v. Foss, 501 F.2d 522, 530 n.3 (1st Cir. 1974). The defendant

urges us to find a constitutional right to allocution and to

hold that the judge violated that right by not allowing the

defendant to finish speaking during the sentencing hearing. We

have never held that a defendant has a constitutional right to

allocution, and we decline to do so now.

A defendant's right to speak in his or her own defense was

recognized by the common law as early as 1682. Marshall,

Lights, Camera, Allocution: Contemporary Relevance or

Director's Dream?, 62 Tul. L. Rev. 207, 209 (1987). This was an

opportunity for the defendant to offer what would now be

considered defenses as defendants were not permitted to testify

on their own behalf. Id. In 1689, the court's failure to ask

the defendant if he had anything to say before a sentence was

imposed required reversal. Green v. United States, 365 U.S.

301, 304 (1961), citing Anonymous, 3 Mod. 265, 266, 87 Eng. Rep.

175 (K.B.). Allocution has survived in our modern Federal

criminal justice system as a mandate that a judge "permit the

defendant to speak or present any information to mitigate the

sentence." Fed. R. Crim. P. 32(i)(4)(A)(ii). "Allocution,

although always required under [F]ederal procedure to be invited

21

and allowed, is not -- at least so far as the invitation is

concerned -- a constitutional right essential to fundamental

fairness." United States v. Leavitt, 478 F.2d 1101, 1104 (1st

Cir. 1973). There is no Federal constitutional right to

allocution. Id.

Our approach in the Commonwealth, Mass. R. Crim. P. 28 (b),

378 Mass. 842 (1979), is a similar, but more narrow view.9 Here,

the defendant may speak for herself or have her attorney

"present mitigating factors prior to sentencing." Commonwealth

v. Rancourt, 399 Mass. 269, 278 (1987). We discern no source of

a constitutional or common-law right to allocution separate from

the opportunity provided by rule 28, and we see no reason to

read one into the State Constitution, as the defendant has an

opportunity to be heard and to testify on her own behalf.

The requirements of rule 28 were satisfied when her

attorney made a statement during sentencing and the judge

permitted the defendant to speak. The defendant contends that

because the judge allowed her to speak at all, the judge erred

in ceasing the defendant's allocution before the defendant

finished speaking. The judge had no obligation to do more than

satisfy the requirements of rule 28, either through statements

9 "Before imposing sentence the court shall afford the

defendant or his counsel an opportunity to speak on behalf of

the defendant and to present any information in the mitigation

of punishment." Mass. R. Crim. P. 28 (b), 378 Mass. 842 (1979).

22

from the defendant or the defendant's attorney. Even in

satisfying rule 28, some reasonable limits are necessary. See

Commonwealth v. McKay, 23 Mass. App. Ct. 966, 968 (1987) (no

error where sentencing judge allowed two people familiar with

defendant "to address the court on the defendant's background

and character but refused" to allow testimony about

circumstances of crime). The judge did not abuse her discretion

by limiting the defendant's statements to permissible and

relevant topics within rule 28. The rule 28 opportunity to

speak is not an unlimited right of a defendant to speak

endlessly on irrelevant subjects or in a disruptive manner.

Here, the defendant contested the facts presented at trial.

Such statements are extraneous in a sentencing hearing and were

therefore properly excluded.

ii. Double jeopardy. The defendant contends that the

judge punished her twice for a single offense, in violation of

double jeopardy principles, when the judge held the defendant

without bail pending the completion of the sentencing hearing

and then imposed a sentence during the sentencing hearing.

In order to determine whether a penalty violates double

jeopardy principles, we analyze the statute that authorizes the

restriction on the defendant's liberty. See Hudson v. United

States, 522 U.S. 93, 99-100, 103 (1997). The defendant argues

that the restriction on her liberty was imposed pursuant to

23

G. L. c. 276, § 58 (bail statute). The bail statute does not,

however, apply to postconviction confinement. Rather, the bail

statute governs pretrial detention. Commonwealth v. Morales,

473 Mass. 1019, 1020 (2016) (bail statute "establishes

conditions for a defendant's initial release after arraignment,

pending adjudication of the charges against him"). Once a

conviction is attained, bail issues are moot. Commesso v.

Commonwealth, 369 Mass. 368, 374 (1975) ("Trial should not

ordinarily be delayed pending bail review even though a

conviction will make the bail issue moot"). Cf. Mendonza v.

Commonwealth, 423 Mass. 771, 777 (1996) ("both cases are moot

since both [defendants] have admitted guilt and are no longer

subject to [G. L. c. 276,] § 58A"). The defendant's bail was

revoked after she was convicted. She was not punished twice for

the same conviction.10,11

10The defendant's time in custody was not a punishment, as

the defendant urges us to hold. Even if it were a punishment,

the defendant would nonetheless not have been punished twice in

violation of double jeopardy protections. Had the judge

sentenced the defendant to any period of incarceration or had

the defendant violated the terms of her probation and had to

serve her suspended sentence, the four nights in custody would

have been credited toward that sentence. See G. L. c. 279,

§ 33A.

11Because the bail statute does not apply, we do address

the defendant's additional argument that the judge did not

comply with the statute's procedural requirements.

24

Further, judges have discretion to revoke bail after a

conviction. See Mass. R. Crim. P. 28 (b). At the conclusion of

a criminal trial resulting in conviction, a judge is in the best

position to determine whether it is necessary to revoke bail.

The Commonwealth moved for sentencing immediately after the jury

delivered their verdicts, but was not obligated to do so for

seven days. See G. L. c. 279, § 3A. The judge's decision was

not an unreasonable delay where the sentencing hearing was still

held earlier than required by statute. Despite the defendant's

contention, the judge's statement that she hoped she "got [the

defendant's] attention by holding [her] over the weekend in

custody" was not an abuse of discretion.12 That statement came

after defense counsel requested that the judge place the

defendant on probation and reported "the last few days being

held in custody has really opened her eyes." The defendant's

argument is essentially a contention that the judge simply could

not revoke bail.13 Bail revocation after a conviction is

decidedly within a trial judge's powers. We discern no error.

12A judge, of course, must be careful not to create the

appearance of intemperance.

13The defendant's suggestion that a judge could not revoke

bail and postpone a sentencing hearing for a reasonable time

encourages hasty decision-making that could harm many defendants

in the future. Postponing sentencing provides a judge the

opportunity to think about the sentence.

25

d. Restitution hearing. At the close of the sentencing

hearing, the judge scheduled a restitution hearing and said,

"I'm going to hold it because I know the facts of the case." On

the day of the hearing, the trial judge was not at the court

house and a different judge presided over the restitution

hearing. The defendant requested a continuance so that the

trial judge could preside over the hearing. The hearing judge

denied this request and proceeded with the hearing. Mahboobe

testified about the damage the defendant caused to the

restaurant and her telephone. Defense counsel conceded that

each item was broken during the assault. Mahboobe provided

written estimates of repair costs and a receipt for replacing

the telephone. The judge ordered the defendant to pay $3,100 in

restitution.

The defendant identifies three issues in the disposition of

her restitution hearing: the restitution judge did not follow

orders entered by the trial judge; her restitution order was not

supported by adequate evidence; and counsel at the restitution

hearing was ineffective.

The defendant urges us to vacate her restitution order

because a judge other than the trial judge conducted the

restitution hearing. We review the decision to proceed with the

hearing for abuse of discretion. Commonwealth v. Baro, 73 Mass.

App. Ct. 218, 224 (2008). A judge may preside over another

26

judge's proceedings following a verdict if the trial judge is

"absen[t]" or "unavail[able]" and the judge believes he or she

is able to fulfil the needs of the hearing. Mass. R. Crim. P.

38 (c), 378 Mass. 916 (1979). Here, the trial judge was absent,

and the restitution hearing judge's decision to preside over the

hearing was far from an abuse of discretion. A restitution

hearing addresses the discrete issue of damages. The judge

needed no special knowledge of the trial unique to the trial

judge to assess the evidence presented at the hearing. He was

capable of presiding over the hearing with no prejudice to

either party.

The defendant claims that the Commonwealth did not meet its

burden of proving the amount of the loss. The facts at the

restitution hearing need only to be proved by a preponderance of

the evidence, not to the higher standard required at the

criminal trial. See Commonwealth v. Denehy, 466 Mass. 723, 740

(2014). We review the judge's assessment of restitution for

abuse of discretion. Commonwealth v. McIntryre, 436 Mass. 829,

836 (2002). Restitution provides for the victim's economic

losses caused by the defendant. Id. at 834. A valid

restitution order is supported by evidence, including a victim's

documentation of losses. Id.

27

The defendant conceded that she caused the harm,14 and the

Commonwealth properly proved the amount damaged. Mahboobe

submitted a receipt for replacing the broken telephone and

estimates from contractors to fix the window and bathroom door

damaged by the defendant. The final determination of

restitution was less than the "actual loss" proffered by

Mahboobe. See Commonwealth v. Henry, 475 Mass. 117, 129 (2016)

("the amount of restitution may not exceed the victim's actual

loss"). Therefore, the judge did not abuse his discretion when

he ordered the defendant to pay restitution.

The defendant also contends that counsel was ineffective at

the restitution hearing for not disputing that the defendant

caused the damage and for not cross-examining Mahboobe about the

time gap between the incident and the invoices. We evaluate

whether counsel's behavior fell measurably below that which can

be expected of an "ordinary fallible lawyer" and prejudiced the

defendant. Saferian, 366 Mass. at 96. Counsel is not

ineffective simply for not making a possible argument when that

tactic had little chance of success. See Commonwealth v.

Kolenovic, 471 Mass. 664, 673-674 (2015), S.C., 478 Mass. 189

14 The defendant asserts that defense counsel's concession

amounts to ineffective assistance of counsel. We address that

argument infra. Assuming for the purpose of analysis that

counsel's concession was proper, the judge did not err in

relying upon it when determining restitution.

28

(2017) (counsel was not ineffective for not pursuing defense

that was unlikely to succeed). Mahboobe's testimony that the

defendant caused the damage was consistent with her trial

testimony. Defense counsel had been unsuccessful in impeaching

Mahboobe at trial and had no new tools with which to impeach

Mahboobe. Therefore, it was not unreasonable for defense

counsel to concede that the defendant caused the damage.

Similarly, defense counsel was not unreasonable in not cross-

examining Mahboobe about the difference between the alleged

damage and the invoices she introduced to support her claim.

Counsel did attempt to impeach Mahboobe's credibility about the

amount of the damage, albeit through a different tactic.

Counsel argued the invoices were not itemized or thorough enough

and questioned Mahboobe about the high cost of each repair.

Counsel did so with some success, obtaining a restitution order

of more than $700 less than that requested by the Commonwealth.

There was no error.

Conclusion. None of the defendant's claims merits

disturbing the jury's verdicts.

Judgment affirmed.