Opinion
16-P-26
07-17-2017
COMMONWEALTH v. Steven COURTEMARCHE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On May 13, 1997, the defendant, Steven Courtemarche, was convicted of two counts of forcible rape of a child, two counts of indecent assault and battery on a child under the age of fourteen, burglary and assault on an occupant, larceny in an amount less than $250, and threatening to commit a crime. The defendant filed a direct appeal, and this court affirmed the judgments. Commonwealth v. Courtemarche, 48 Mass. App. Ct. 1115 (2000). In 2013, the defendant filed a motion for a new trial, alleging that he had received ineffective assistance of trial counsel. The motion judge, who was not the trial judge, denied the motion, and the defendant appealed. We affirm.
The trial judge is deceased.
1. Ineffective assistance of trial counsel. In his new trial motion, the defendant raised a claim of ineffective assistance of counsel based on his trial attorney's mental health and substance abuse issues. The defendant asserts these issues resulted in counsel's failure, among other things, to investigate the defendant's claims about evidence tampering and the planting of evidence, as well as his failure to impeach the victim. A motion judge denied the motion. We review the denial of the motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
a. Mental capacity and substance abuse. In 2001, four years after the defendant's trial, trial counsel was disbarred from the practice of law and, five years after that, convicted of criminal offenses. After reviewing counsel's mental health records, the trial transcript, affidavits from the defendant, the prosecutor, and the defendant's mother and father, the judge determined that, while counsel made some misrepresentations to the defendant regarding the defense strategy, he did not provide ineffective assistance of counsel. To this end, the judge, within her discretion, credited the trial prosecutor's affidavit over that of the defendant. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997) (judge not required to believe defendant's affidavit "even if undisputed"). The judge found that the prosecutor's observations comported with the trial transcript and counsel's mental health history. The prosecutor reported that he had observed no signs of impairment or mental health issues impacting counsel's performance. He did not witness any signs of "confusion, unpreparedness, or difficulty" by counsel. He also did not observe an odor of alcohol emanating from counsel or that counsel was unclean or disheveled. In contrast, the defendant only belatedly raised concerns over counsel's mental health and substance abuse after counsel's public disbarment. Where "[t]he credibility, weight, and impact of the affidavits in support of the motion are entirely within the judge's discretion," Commonwealth v. Pingaro, 44 Mass. App. at 48, and she "is not required to believe" the affidavits offered by the defendant, we perceive no abuse of discretion. Ibid. See Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015) ("Even where, as here, the motion judge did not preside at the trial, the credibility, weight, and impact of the affidavits are entirely within the motion judge's discretion").
b. Cross-contamination. On the basis that the physical evidence from the crime scene was received by the State laboratory in one package, the defendant asserts that there was comingling of evidence. Contrary to the defendant's claim, that fact, without more, does not support the inference of comingling. Detective Wagner testified to the procedure he used to gather the evidence. The victim's clothing and sheets were gathered at an earlier time and in a different location than the defendant's clothing. There is no evidence that these items were placed in the same bag or stored together, and the defendant's mere "[s]peculation, without more" does not make that so. Commonwealth v. Duran, 435 Mass. 97, 103 (2001).
Similarly, counsel's failure to investigate the defendant's claim that Detective Wagner added samples of the victim's and defendant's blood and to the clothing and bedding seized from the victim was also not "manifestly unreasonable" where, aside from the defendant's accusation, there was no suggestion of evidence tampering. Contrast Commonwealth v. Conley, 43 Mass. App. Ct. 385 (1997) (defendant's "superior knowledge" of events rendered counsel's failure to pursue his client's lead ineffective assistance). Unlike the defendant in Conley, Courtemarche did not possess superior knowledge about Detective Wagner or his practice in the handling of the evidence. For purposes of the motion, the judge "assume[d] that Chance lied to Courtemarche and never hired an investigator." We acknowledge that the statement in counsel's letter to the defendant "that Detective Wagner may have altered evidence a second time when he resubmitted the bed sheet [to the State laboratory]," and that he had sought funds for an expert to pursue this trial strategy appear to be false. However, where there was nothing to gain by the use of an expert and counsel mounted a vigorous cross-examination of the State chemist, we cannot conclude that counsel's trial strategy was "manifestly unreasonable" or that counsel's apparent failure to hire an expert prejudiced the defendant. Commonwealth v. Adams, 374 Mass. 722, 728 (1978)
c. Failure to impeach. "Generally, [the] failure to impeach a witness does not amount to ineffective assistance of counsel." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). Therefore, we see no merit to the defendant's claim that counsel's failure to lodge an objection to the Commonwealth's alleged improper questioning of the victim and failure to impeach the victim constituted ineffective assistance. Ibid. In any event, contrary to the defendant's assertions, counsel did elicit various inconsistencies between the victim's trial testimony and her statements at the SAIN interview. Accordingly, we are not persuaded by the defendant's assertion that counsel's actions left him without a defense. He presented a strong case of misidentification, but the victim's testimony was corroborated by even stronger independent forensic evidence. Accordingly, "[a]lthough [his identification] defense ultimately failed, we cannot say that it was tantamount to no defense at all." Delle Chiaie v. Commonwealth, 367 Mass. 527, 538 (1975).
The defendant has provided us with only a portion of the SAIN interview, which hampers our ability to review this issue.
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2. Jury instructions. The defendant contends that the trial judge's jury instructions on the charge of breaking and entering with assault upon an occupant under G. L. c. 266, § 14, created a substantial risk of a miscarriage of justice. The Commonwealth contends that because this argument was not raised in either the defendant's direct appeal or motion for a new trial, it is waived. See, e.g., Commonwealth v. Mahar, 442 Mass. 11, 13 n.4 (2004) ("[P]ostconviction motions for a new trial based on grounds available but not raised on direct appeal are waived"). At oral argument, the defendant countered that the argument was not raised on his direct appeal because he was also deprived of effective assistance of appellate counsel. Therefore, while we agree with the Commonwealth that these arguments are waived, we elect to address the arguments in the context of a claim for ineffective assistance of appellate counsel. As such, we review the defendant's challenge to make
"a determination ‘whether the issues which [the defendant] claims appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial, and were so obvious from the trial record that the failure to present such issues amounted to ineffective assistance of appellate counsel.’ "
Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 232 (1993), quoting from Gray v. Greer, 800 F.2d 644, 647 (7th Cir. 1986).
Here, the judge instructed that if the jury found that the defendant had the specific intent to commit a larceny, larceny is a felony under the laws of the Commonwealth. That instruction was grounded in testimony that defendant took money from the victim, and this felonious intent to steal is not negated by the fact that the defendant only stole seven dollars from her. Contrast Commonwealth v. Walter, 40 Mass. App. Ct. 907, 909 (1996) (judge erred in failing to define "felony" where defendant's defense was that he only intended to break into a building to inject heroin, a misdemeanor). There was no objection to the instructions at trial; there is certainly no substantial risk of a miscarriage of justice created by these instructions.
The defendant also argues that the trial judge failed to instruct the jury that the burden was on the Commonwealth to prove that the defendant entered the home intending to commit armed assault. However, entrance with the intention to commit an armed assault is not necessarily an element of the offense. See G. L. c. 266, § 14 ; Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 558 n.1 (2006). Rather, the judge properly instructed that "the Commonwealth must prove beyond a reasonable doubt" both "that the defendant at the time of the breaking and entering had the specific intent to commit a felony" and "that the defendant committed an actual assault on a person in the dwelling." He repeated a similar instruction after explaining all the elements of the offense. Accordingly, we perceive no error in the judge's instruction and, therefore, we conclude appellate counsel was not ineffective for failing to raise these claims. See Commonwealth v. Gaeten, 15 Mass. App. Ct. 524, 533 (1983) (counsel's failure to file motions, "especially where the record demonstrates little likelihood that any such motions would have succeeded, is not the kind of conduct falling measurably below what is expected of an ordinary, fallible attorney that constitutes ineffective assistance of counsel").
3. Other claims. Finally, to the extent we have not discussed any other arguments presented by the defendant, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order denying motion for new trial affirmed.