Opinion
20-P-1170
01-11-2022
COMMONWEALTH v. Christopher BRUNET.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Christopher Brunet, was convicted by a jury of aggravated rape of a child, assault with the intent to rape a child, indecent assault and battery of a child under the age of fourteen, enticement of a child under the age of sixteen, and dissemination of matter harmful to a minor. His convictions were affirmed on appeal. See Commonwealth v. Brunet, 92 Mass. App. Ct. 1124 (2018). Subsequently, the defendant filed a motion for a new trial which was denied by a Superior Court judge after a nonevidentiary hearing. On appeal, the defendant contends that he is entitled to a new trial because (1) his confrontation rights were violated by the restriction of cross-examination, and (2) his trial counsel provided ineffective assistance. We affirm.
Background. The defendant, in a dating relationship with the victim's mother, moved in with the victim, her mother, and two brothers in early 2010, when the victim was nine years old. Several weeks after the defendant moved in, the victim experienced genital irritation while at her aunt's house. When the mother questioned her what was wrong, the victim disclosed that the defendant had sexually abused her on multiple occasions. The following day, the mother brought the victim to MetroWest Hospital, where she was observed to have swelling and abrasions on her genitalia.
The facts underlying the defendant's convictions are summarized in Brunet, 92 Mass. App. Ct. 1124.
At trial, the defendant sought to cross-examine the victim's mother about the mother's previous involvement with the Department of Children and Families (DCF) due to "unsanitary conditions in the home." The suggestion to be made was that the victim's genital irritation was potentially caused by the condition of the home and not the defendant, and as a result, the mother had a motive to lie and place the blame on the defendant in order to prevent DCF from removing her children from her care. The defendant approached sidebar to request permission from the judge to conduct this inquiry, and the Commonwealth vehemently objected to the line of questioning.
There were two reports made to DCF, in 2005 and 2008 respectively, about the condition of the mother's home and that it smelled of urine. The 2005 report was investigated by a DCF worker and found to be unsupported. During the investigation of the 2008 report, the home was observed to be in suitable condition, and the mother informed DCF that the children had issues with bedwetting that she was attempting to fix. The victim in this case is a cancer survivor and has a medical condition that causes her to urinate often. The 2008 report was ultimately screened out by a DCF worker, and the mother's case with DCF remained open.
In deciding whether to allow the inquiry, the trial judge asked defense counsel for the precise question he wished to ask. Counsel responded, "I want to ask this witness if she's had involvement with [DCF] or the Department of Social Services, and whether they have found her to be in need of services on at least two occasions." The judge inquired whether that was all counsel wanted to ask and defense counsel responded, "That's all I need to ask." The Commonwealth argued that the question was not relevant and was highly prejudicial because DCF's involvement was not contemporaneous with, and occurred two years prior to, the sexual abuse. The judge then specifically asked the Commonwealth what the status of DCF's involvement with the mother was in 2010 (the year the abuse occurred), and the prosecutor stated, "I don't believe she had an ongoing worker in 2010. I think she was not involved with DCF in 2010." Ultimately, after further discussion, the judge ruled, over the Commonwealth's objection, that the defendant could ask the victim's mother whether, at some point, DCF had found her to be in need of services. Defense counsel asked the question, and the mother responded, "Yes." Defense counsel also asked the mother whether it was difficult for her to care for three children as a single mother, and she again responded in the affirmative.
After the defendant was convicted, he filed a motion for a new trial, arguing that the prosecutor materially misrepresented the fact that DCF was not involved with the victim's family in 2010 because the DCF records reflect that the family had an open case with DCF at that time. The defendant argued that the prosecutor's material misrepresentation resulted in the restriction of cross-examination on a material matter. The defendant further argued that his trial counsel was ineffective for failing to correct the prosecutor's material misrepresentation, and also for failing to cross-examine the victim's mother about a statement she made to hospital staff denying prior DCF involvement.
The motion judge found that while the prosecutor's statement was inaccurate because in 2010 the mother indeed had an open case with DCF arising from her voluntary request for services, even if the statement had resulted in the restriction of the defendant's cross-examination, the defendant had failed to demonstrate any prejudice. The motion judge concluded that the defendant benefited from the trial judge's ruling because any further questioning on that point would have revealed that that the mother's open case with DCF arose from her voluntary application for services, and additionally that the two reports regarding the unsanitary condition of the home had either been found to be unsupported or screened out by DCF. The judge also concluded that the defendant's trial counsel was not ineffective. The defendant's motion was denied, and he timely appealed.
Discussion. "A judge may grant a motion for a new trial only ‘if it appears that justice may not have been done.’ " Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 635 (2001), quoting Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979). "[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ " Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014).
1. Confrontation claim. The defendant claims that he is entitled to a new trial because the prosecutor's statement concerning DCF's lack of involvement with the family in 2010 caused the judge to restrict the defendant's cross-examination of the mother in violation of his confrontation rights. To the extent that the claim is not waived, it is without merit.
In his direct appeal, the defendant argued that the judge impermissibly restricted his cross-examination of the mother on his theory of bias. Here, the defendant also argues that his cross-examination of the mother was restricted by the judge, but he now argues that the judge's decision to do so stemmed from the prosecutor's statement that DCF was not involved with the family in 2010. Because the DCF records were not admitted at trial, the accuracy of the prosecutor's statement could not be challenged on direct appeal. That portion of the defendant's argument has thus not been waived. See Commonwealth v. Amirault, 424 Mass. 618, 641 (1997) (doctrine of waiver applies to claims that could have been raised in direct appeal but were not).
To begin, it is not clear that the prosecutor's statement, albeit inaccurate, was material or precipitated the judge's ruling. Immediately before the prosecutor stated that she did not believe that the mother was involved with DCF in 2010, she informed the judge that the mother had "sporadic connections with DCF," the last being two years prior to the allegations in this case. And indeed, the mother's most recent involvement with DCF about the sanitariness of her home -- the involvement that the defendant alleges raised questions about her bias -- occurred in 2008, two years prior to the allegations in this case. Moreover, from the record, it appears that the trial judge's ruling allowing the defendant to ask the mother whether she had been involved with DCF was made notwithstanding the prosecutor's statement, rather than because of it. The judge had the discretion to allow the defendant to ask the mother that singular question but restrict him from asking additional questions on that point. See Commonwealth v. Miles, 420 Mass. 67, 71 (1995) ("scope of cross-examination rests largely in the sound discretion of the trial judge").
Directly in response to the prosecutor's statement that she did not think the mother was involved with DCF in 2010, and prior to making his ultimate ruling, the judge stated, "Well, with respect to the prejudicial aspect of it, I -- I think it's a gamble on the part of the defense. This could very well backfire. But -- but I do feel that -- I do feel that the defense ought to be able to argue that point, that she might have had that motive."
"Both the Sixth Amendment [to the United States Constitution] and art. 12 [of the Massachusetts Declaration of Rights] guarantee a criminal defendant's right to confront the witnesses against him through cross-examination," Commonwealth v. Farley, 443 Mass. 740, 748 (2005), quoting Miles, 420 Mass. at 71, but "the right to confront and to cross-examine [a witness] is not absolute." Farley, supra, quoting Commonwealth v. Francis, 375 Mass. 211, 214, cert. denied, 439 U.S. 872 (1978). Where cross-examination is permitted as a matter of right, such as to show a witness's bias or prejudice, the judge may not "bar all inquiry into the subject," but may limit the cross-examination in appropriate circumstances (citation omitted). Commonwealth v. Avalos, 454 Mass. 1, 7 (2009). "[A] judge has discretion to limit questions that involve collateral issues and questions where the connection to the evidence of bias is too speculative." Commonwealth v. Chicas, 481 Mass. 316, 320 (2019). " ‘A defendant must make a "plausible showing" of alleged bias, with a factual basis for support’; otherwise, the judge may restrict or entirely exclude the inquiry." Id., quoting Commonwealth v. Sealy, 467 Mass. 617, 624 (2014).
Here, the judge did not bar all inquiry into the mother's involvement with DCF, but appropriately limited the defendant's questioning to avoid matters that were deemed too speculative, such as the mother's fear that her children were at risk of being removed. See Avalos, 454 Mass. at 7. The defendant made no showing that the mother was fearful of her children being removed by DCF, and his only factual bases to support this theory were the two remote reports of unsanitary conditions in the home, which had either been found to be unsupported or were screened out by DCF. Compare Commonwealth v. Jones, 478 Mass. 65, 73 (2017) (evidence of bias too tenuous where defendant failed to offer nexus between victim's conduct and motive to lie). As the motion judge found, nothing in DCF's records suggests that DCF had threatened to remove the children from the mother's care or that the family was even at risk of that occurring. To the contrary, the records reflect that DCF provided voluntary services at the mother's request and that the mother "present[ed] as loving parent who has the best interest of her children in mind." Thus, even if the judge had been made aware of the mother's open case in 2010, it is unlikely that he would have permitted the defendant to further cross-examine the mother about the details of her earlier DCF involvement, as his theory of bias "was too tenuous to be one that he was entitled to pursue on the record he presented." Commonwealth v. Tam Bui, 419 Mass. 392, 401 (1995).
Notably, when the judge inquired what the defendant wished to ask the mother, he expressed an intention to ask (1) whether she had had been involved with DCF and (2) whether DCF had found her to be in need of services on two occasions. This he was mostly permitted to do. , As the motion judge found, the defendant, in closing argument, was then able to link the mother's testimony regarding her involvement with DCF to his theory that such involvement gave her motive to fabricate the allegations against the defendant. As a result, even if we were to assume that the trial judge restricted the defendant's cross-examination of the mother based on the prosecutor's misstatement, we agree with the motion judge that the defendant cannot demonstrate that he was prejudiced or that a substantial risk of a miscarriage of justice resulted. The motion judge therefore did not abuse his discretion in rejecting this claim.
The judge instructed the defendant to avoid enumerating the number of times the mother was found to be in need of services.
Although the defendant also stated that he wanted "to establish that DCF hooked everyone up with counsellors because they found conditions in the home that weren't healthy for the kids," there was no factual basis for such a claim. Again, DCF did not support either report of unsanitary conditions in the home.
We defer to the motion judge's finding on this point as the defendant failed to submit the entirety of the trial transcript on appeal. See Commonwealth v. Woods, 419 Mass. 366, 371 (1995) ("burden is on the appellant to ensure that an adequate record exists for an appellate court to evaluate" claims).
The defendant contends that the proper standard of review is whether the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 23-24 (1967). We disagree. The defendant did not properly preserve his claim by objecting to the judge's ruling or otherwise making known to the judge that he wished to pose additional questions to the mother about his theory of bias. See Commonwealth v. Wray, 88 Mass. App. Ct. 403, 405-406 (2015), quoting Mass. R. Crim. P. 22, 378 Mass. 892 (1979) (to preserve issue for appellate review, party must "make[ ] known to the court the action which he desires the court to take or his objection to the action of the court"). See also Commonwealth v. Brazie, 66 Mass. App. Ct. 315, 319 (2006) (applying substantial risk standard to unpreserved confrontation clause claim).
2. Ineffective assistance claim. "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). The prejudice prong of the Saferian standard is met only "where we have a serious doubt whether the jury verdict would have been the same had the defense been presented." Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
The defendant claims he is entitled to a new trial because his trial counsel was ineffective for (1) failing to correct the prosecutor's misstatement that DCF was not involved with the victim's family in 2010, and (2) failing to cross-examine the victim's mother about her statement to hospital personnel that she had no prior DCF involvement. We disagree. For substantially the same reasons that the defendant has not shown that he was prejudiced by the prosecutor's inaccurate statement, he has not demonstrated that he was prejudiced by his counsel's failure to correct the statement. See Commonwealth v. Randolph, 438 Mass. 290, 296 (2002) (no ineffective assistance where error itself does not create substantial risk of a miscarriage of justice). Further, the defendant has not demonstrated that his counsel was ineffective for failing to impeach the victim's mother with her statement to hospital staff denying prior DCF intervention, nor has he shown that he was prejudiced as a result. "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). Accordingly, we perceive no abuse of discretion or error of law in the denial of the defendant's motion for a new trial.
Order denying motion for new trial affirmed.