Opinion
13-P-372
05-02-2016
COMMONWEALTH v. KEVIN C. ANDERSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the conclusion of a jury-waved trial, the defendant, Kevin Anderson, was convicted of two counts of indecent assault and battery on a person under the age of fourteen. In this consolidated appeal the defendant contends that the Commonwealth failed to produce exculpatory evidence and that trial counsel was ineffective for, among other things, failing to obtain it. We affirm.
The defendant makes no argument in his direct appeal separate from the arguments in his appeal from the denial of his motion for new trial.
1. Exculpatory evidence. Before trial, the Commonwealth provided summaries of a recorded Sexual Abuse Intervention Network (SAIN) interview with Adam, the minor child, and an interview with Mark, Adam's brother and the first complaint witness. The transcripts and recordings of these interviews were not provided until after trial, upon the defendant's motions for posttrial discovery. The defendant filed a motion for new trial, contending that each of these interviews contained exculpatory evidence that could have been used to impeach the Commonwealth's witnesses at trial or mount a defense, and the Commonwealth's failure to turn over this information during the ordinary course of discovery, see Mass.R.Crim.P. 14(a)(1)(A), as amended, 444 Mass. 1501 (2005), violated Brady v. Maryland, 373 U.S. 83 (1963).
The names "Adam" and "Mark" are pseudonyms.
The defendant does not claim a violation of rule 14 independent of the failure to produce exculpatory evidence.
The motion judge, who was also the trial judge, considered all of the evidence in a detailed written decision, and ruled that none of the information, even if considered exculpatory, would have altered his findings. We review the judge's denial of a motion for new trial for an abuse of discretion or clear error of law, see Commonwealth v. DiCicco, 470 Mass. 720, 728 (2015), giving "special deference" to the judge's decision because the motion judge was also the trial judge. Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992).
Clearly the better practice would have been to turn over the tapes of the recorded interviews as well as the transcripts. The Commonwealth does not contend otherwise. The Commonwealth also acknowledges that once Adam and Mark testified at trial, the recordings, which contained some additional evidence not contained in the summaries, had impeachment value and were exculpatory in nature. See Commonwealth v. Murray, 461 Mass. 10, 23 n.10 (2011). Accordingly, we must consider whether the defendant was prejudiced by the failure to turn over exculpatory evidence.
The burden is on the defendant to "establish that he was prejudiced by the nondisclosure" of exculpatory evidence. Commonwealth v. Brown, 57 Mass. App. Ct. 852, 855 (2003). The defendant did not specifically request the recorded interviews. Therefore, "a new trial is required only if the undisclosed evidence 'create[d] a reasonable doubt that did not otherwise exist.'" Commonwealth v. Iguabita, 69 Mass. App. Ct. 295, 302 (2007), quoting from United States v. Agurs, 427 U.S. 97, 112 (1976). See Commonwealth v. Brown, supra (defendant "must show that there is a substantial risk that the [fact finder] would have reached a different conclusion if the evidence had been admitted" [quotation omitted]).
We assume (without deciding) that the evidence withheld was exculpatory in all respects urged by the defendant. The judge concluded, however, that "[t]he transcripts [of the interviews] do not differ from the summaries provided in any material way," and that while "[t]here are some inconsistencies between the testimony of the witnesses at trial and the testimony recorded prior to trial, . . . these inconsistencies would not have affected the determinations of credibility made by the fact-finder," thus foreclosing any risk that he would have reached a different conclusion.
The Commonwealth contends that not all of the evidence was exculpatory. We need not decide the issue, because upon review of all of the arguments made to the motion judge and on appeal, we conclude that the defendant has not shown prejudice even if all of the evidence were exculpatory.
The judge did not abuse his considerable discretion in so ruling. By way of example, the defendant argues that he would have exploited inconsistencies between the recorded SAIN interview and Adam's testimony at trial to show that Adam bore hostility toward the defendant for reprimanding his younger brother for swearing in church. However, the judge noted that "[t]his line of inquiry was developed thoroughly at trial" and that "[Adam] was not completely forthcoming in his testimony about this issue, but admitted telling three or four people that he hated the [d]efendant for what he did to his younger brother." The judge ultimately concluded that "none of the inconsistencies . . . added much of note to this subject." Similarly, the defendant argues that Adam's suggestion that the defendant take a lie detector test "[b]ecause I want to see if [the defendant's] lying" shows that Adam was unsure of the truth of his accusations. The judge concluded that "there could be many possible reasons why [Adam] would suggest a lie detector test, including [Adam's] confidence that such a test might vindicate him . . . and thereby settle the issue." As the fact finder, the judge was particularly well suited to assess the impact of the additional evidence, and we perceive no error in the judge's thoughtful decision on the defendant's motion.
2. Ineffective assistance. The defendant contends that trial counsel provided ineffective assistance because counsel failed to request and obtain the recorded SAIN interview, the recorded interview with the first complaint witness, and the first complaint witness's school records, and because counsel failed to interview and call witnesses who would have testified "to [Adam's] propensity to lie and his desire to get back at the [d]efendant for disciplining his brother at church." In reviewing a denial of a motion for a new trial based on ineffective assistance of counsel, we consider whether the defendant has shown that counsel's performance fell measurably below that of ordinary, fallible counsel, and if so, has made "some showing that better work might have accomplished something material for the defense." Commonwealth v. Bell, 460 Mass. 294, 303 (2011) (quotation omitted). We address each of these arguments in turn.
a. Recorded interviews. Passing on whether defense counsel's decision not to request the tapes and transcripts of the interviews was ineffective, the defendant "has not shown how procurement and use of the transcript[s] at trial would have provided something material to his defense." Commonwealth v. Brown, 57 Mass. App. Ct. at 860. For the reasons already stated, there was no abuse of discretion in denying the motion.
b. School records. Mark testified that Adam told him that he (Adam) had been assaulted by the defendant. Mark then told a counselor at school, and school administrators brought the incident to the attention of the Department of Children and Families. Trial counsel did not request Mark's school records. In an affidavit, trial counsel states that he "do[es] not recall" why he did not obtain Mark's school records. The defendant asserts that trial counsel's failure to request these documents "result[ed] in the forfeiture of several substantial defenses," namely, that the records indicated that the incidents had occurred in the distant past, contrary to Adam's testimony at trial, and that the evidence provided grounds for impeachment that were left unexplored by trial counsel. The judge's findings, which discounted these inconsistencies, effectively nullify any claim that counsel was deficient in the constitutional sense, or that better work would have done something more for the defense. See, e.g., Commonwealth v. Fisher, 433 Mass. 340, 357 (2001) ("Generally, failure to impeach a witness does not amount to ineffective assistance of counsel").
c. Witnesses. Trial counsel did not call witnesses who the defendant avers would have testified "to [Adam's] propensity to lie and his desire to get back at the [d]efendant for disciplining his brother at church." "[I]neffective assistance of counsel is not established merely by showing that the defendant's counsel did not call additional witnesses. . . . To prevail, the defendant must show that the purported testimony would have been relevant or helpful." Commonwealth v. Ortega, 441 Mass. 170, 178 (2004). "Here, the defendant failed to show that the prospective witnesses' testimony would have contributed materially to his defense or that trial counsel's failure to call them was manifestly unreasonable. . . . The defendant provided no affidavits from any of the prospective witnesses setting forth the testimony they would have given had they been called as witnesses." Id. at 178-179. Under these circumstances, the motion was deficient on its face, see Mass.R.Crim.P. 30(c), as appearing in 435 Mass. 1501 (2001), both because it failed to show that counsel's decision was manifestly unreasonable when made, and because the motion failed to establish prejudice. See Commonwealth v. Ortega, supra.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Grainger, Sullivan & Henry, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: May 2, 2016.