Opinion
No. 12–P–278.
2013-02-1
COMMONWEALTH v. BASHIR B., a juvenile.
By the Court (TRAINOR, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile appeals from his adjudication of delinquency on a charge of indecent assault and battery, from the denial of his motion pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995), and from the denial of his motion for a new trial. The juvenile raises the following issues on appeal. He argues that the introduction of multiple complaint evidence created a substantial risk of a miscarriage of justice. He also contends that his motion for a new trial should have been granted because he was deprived of due process in two respects: (a) the prosecutor knowingly presented false evidence and (b) the prosecutor breached her duty to disclose exculpatory material. Finally, he contends that he was denied effective assistance of counsel.
Discussion. 1. Multiple complaint testimony. “Once a judge ... has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard.” Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). Because the juvenile did not object to the multiple complaint testimony at trial, we review for a substantial risk of a miscarriage of justice. Id. at 72. The juvenile contends that the trial judge violated the first complaint doctrine by improperly admitting multiple complaint evidence. See id. at 71–73. “The doctrine seeks to balance the interest of a complainant ... in having her credibility fairly judged on the specific facts of the case rather than unfairly by misguided stereotypical thinking, with that of a defendant in receiving a trial free from irrelevant and potentially prejudicial testimony.” Commonwealth v. Arana, 453 Mass. 214, 228 (2009). The first complaint doctrine, however, does not “prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible.” Id. at 220–221.
The juvenile argues that Commonwealth v. Stuckich, 450 Mass. 449 (2008), prohibited the victim from testifying about the individuals to whom she spoke about the incident. See id. at 457 & n. 11. In Stuckich, even though she omitted the details, the complainant “should not have been allowed to testify” that she told other people about the incident. Id. at 457. We, however, do not find Stuckich dispositive here. Rather, the case before us is more closely akin to Commonwealth v. Roby, 462 Mass. 398 (2012), where the Supreme Judicial Court concluded that there was no substantial risk of a miscarriage of justice when the multiple complaint “testimony was brief and provided no details of the alleged sexual encounters.” Id. at 409. Here, the victim's allusions to what she told another were not in reference to the assault, but rather to earlier discussions that the juvenile was too “hands on” with her. Such evidence is properly admissible to show motive or intent. See Commonwealth v. Arana, supra at 220–221. The motion judge found that the admission of Terranova's statements was for purposes of impeachment. Admission of the fleeting references with which the juvenile now takes issue was not error, let alone a substantial risk of a miscarriage of justice. See Commonwealth v. Roby, supra.
The details included a letter written by the complainant to her guidance counselor, a meeting with her guidance counselor, a meeting with her therapist, and a SAIN interview.
2. Due process claims. a. False evidence. The juvenile claims that the prosecution “improperly presented evidence that it knew or should have known was false.” Commonwealth v. McLeod, 394 Mass. 727, 743, cert. denied, 474 U.S. 919 (1985). The alleged false evidence concerns both the use of a seating chart and the testimony of the victim and several witnesses. The juvenile contends that because the witnesses deviated from their prior statements, they must have fabricated their trial testimony. The example he emphasizes comes from a particular witness's testimony. During her initial interview with Terranova, this witness stated that she did not see anything because the lights were off. But at trial, the same witness testified that she saw the juvenile place his hand on the victim's leg and, in turn, witnessed the victim's uncomfortable and upset demeanor. The juvenile claims that the prosecutor must have known that this witness planned to change her story because her original recitation of the event would have been unhelpful to the Commonwealth's case.
We conclude that this claim is without merit. The juvenile has presented no evidence, and we find none in the record, that the prosecutor knew or should have known that any of the witnesses were fabricating their testimony at trial. Commonwealth v. McLeod, supra at 743. “Simply because a witness alters some portion of [her] testimony at the time of trial is not a sufficient reason to conclude that the new testimony is false, or that the Commonwealth knew or had reason to know it was false.” Ibid. Moreover, cases finding that the prosecutor had knowledge of the change usually involve witnesses who, at trial, contradict their prior sworn statements. See id. at 740, 743–744 (prior interviews and grand jury testimony contradicted at trial); Commonwealth v. Hap Lay, 63 Mass.App.Ct. 27, 31–32 (2005) (witnesses' trial testimony different from suppression hearing). Here, the witnesses' prior statements were not under oath. “Presentation of a witness who recants or contradicts his prior testimony is not to be confused with eliciting perjury. It was for the jury to decide whether or not to credit the witness.” Commonwealth v. McLeod, supra at 743–744, quoting from United States v. Holladay, 556 F.2d 1018, 1019 (5th Cir.), cert. denied, 439 U.S. 831 (1978). See also Commonwealth v. Mercado, 383 Mass. 520, 523–526 (1981). The juvenile also had the opportunity to impeach the witnesses with their prior inconsistent statements. See Commonwealth v. Hap Lay, supra at 32. The motion judge did not abuse his discretion in concluding that the prosecutor did not knowingly use false evidence.
b. Prosecutor's failure to disclose. “The failure of the Commonwealth to provide exculpatory evidence to [a juvenile] may be a denial of due process and may require a new trial.... The Commonwealth, however, is only required to provide exculpatory evidence in its possession.” Commonwealth v. Daughtry, 417 Mass. 136, 143 (1994). See Commonwealth v. Garrey, 436 Mass. 422, 440 (2002). Our conclusion above that the prosecutor had no knowledge of any potential changes in testimony forecloses the juvenile's argument. Therefore, because the Commonwealth did not have exculpatory evidence “in its possession,” the juvenile was not deprived of due process. Accordingly, the motion judge did not abuse his discretion in concluding that the prosecutor did not withhold exculpatory evidence.
3. Ineffective assistance of counsel. We review claims of ineffective assistance of counsel under the familiar two-part test set forth in Commonwealth v. Saferian, 366 Mass. 89, 96–97 (1974).
The juvenile points to four potential instances of ineffectiveness by the trial attorney and asks for a new trial. First, the juvenile argues that his attorney should have objected to the multiple complaint testimony. This avenue is foreclosed because the testimony at issue did not violate the first complaint doctrine.
Second, the juvenile argues that his own counsel's introduction of multiple complaint evidence bolstered the complainant's credibility. We disagree. The testimony and evidence from Officer Mitchell and Terranova was introduced to attack the victim's credibility. As the motion judge concluded, “While his attempt was arguably unsuccessful, it was not an unreasonable tactical decision.” See Commonwealth v. Garvin, 456 Mass. 778, 783 (2010).
Third, the juvenile claims his counsel was ineffective for failing to impeach several witnesses and for failing to refresh the recollection of Politi regarding the seating chart. “In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance.” Commonwealth v. Bart. B., 424 Mass. 911, 916 (1997). “Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations....” Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). The failure to refresh Politi's recollection is likewise a tactical decision that we will not second guess. We thus cannot say that counsel's decisions were manifestly unreasonable.
Lastly, the juvenile claims that his counsel was ineffective for abandoning his sole defense during closing arguments. Although abandonment may constitute ineffective assistance, see Commonwealth v. Westmoreland, 388 Mass. 269, 272–273 (1983), we find this claim meritless here. The juvenile's strategy was to convince the jury that the assaults never occurred. Counsel never abandoned this defense, and his efforts led to an acquittal on the six other counts against the juvenile. Therefore, because counsel did not abandon the defense, he could not have been ineffective on this basis. We also conclude that because each claim for ineffective assistance was without merit, there was no “cumulative effect” to evaluate.
Adjudication of delinquency affirmed.
Order denying motion pursuant to Mass.R.Crim.P. 25(b)(2) affirmed.
Order denying motion for new trial affirmed.