Opinion
16-P-896
05-25-2017
COMMONWEALTH v. Warren W. DOUGAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the order denying his 2015 motion for a new trial or resentencing on his 1975 convictions of rape, kidnapping, commission of an unnatural act, and armed robbery. He contends that trial counsel was ineffective at sentencing by failing to argue certain mitigating factors and by failing to challenge more strongly the prosecutor's claim that the defendant was "in command" of his two codefendants—members of the same motorcycle club—during the crimes. We affirm.
Background. The nature of the crimes is set forth in Commonwealth v. Dougan, 377 Mass. 303, 305-306 (1979), affirming the judgments of the defendant and codefendant Fred M. Woodard and ordering a new trial for codefendant Robert R. Linehan, id. at 318. A fourth defendant named Giers, another member of the club, had not appeared for trial and was defaulted. Id. at 305 n.2. The defendant here was sentenced to life in prison for the rape; ten to fifteen years in prison, concurrent, for the armed robbery; three to five years in prison, from and after, for the unnatural act; and nine to ten years in prison, from and after, for the kidnapping.
His 1985 motion for a new trial was denied, and the denial was upheld in a memorandum and order under our rule 1:28. Commonwealth v. Dougan, 23 Mass. App. Ct. 1012 (1987). The defendant then filed in 1987 a motion to revise and revoke his sentences, as a result of which a motion judge, in 1988, revised the unnatural act and kidnapping sentences to be served concurrently with the rape and armed robbery sentences.
In 2015, the defendant filed a motion under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), for a new trial or resentencing, claiming that trial counsel had been ineffective at sentencing. In support he submitted affidavits from himself, family members, his codefendant and friend Woodard, and his current counsel.
A judge denied the motion without a hearing. She stated, "I cannot credit [the] defendant's affidavits on this record." She also concluded that "[c]ounsel's trial and sentencing tactics were quite reasonable and the tactics suggested by the defendant could not have accomplished something material for him," citing Commonwealth v. Saferian, 366 Mass. 89 (1974). The defendant appealed.
The judge noted that "[g]iven the multiple opportunities to raise these claims previously, they have been waived," but she proceeded in her discretion to address the substance of the motion, as rule 30(c)(2) permits.
Discussion. We review the denial of a motion pursuant to Mass.R.Crim.P. 30(b)"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). See Commonwealth v. Talbot, 444 Mass. 586, 593 (2005) (motion for resentencing treated as filed under rule 30 [b] ).
a. Failure to present mitigating information. The defendant argues that trial counsel was ineffective at the time of sentencing in failing to present assertedly mitigating information about the difficult circumstances of the defendant's youth and personal history, as set forth in his own affidavit and those of his wife and sister. First, the judge did not and was not required to credit these affidavits, even if nothing in the trial record directly contradicted them. See Commonwealth v. De Christoforo, 360 Mass. 531, 543 (1971).
The defendant's and his wife's affidavits asserted that he had made his life circumstances known to trial counsel prior to sentencing, and the defendant's affidavit also asserted that he had made them known to counsel who handled his direct appeal. While he claims that these were important mitigating circumstances that should have been argued at sentencing or as ineffective assistance on direct appeal, the defendant offers no reason why he did not raise the issue in his 1985 motion for a new trial or his 1987 motion to revise and revoke, see note 1, supra, or at any other time in the nearly three intervening decades until 2015—shortly after his parole was provisionally revoked.
Nor do we see any error or abuse of discretion in the judge's determinations that trial counsel's tactics at sentencing were reasonable and that bringing the defendant's life circumstances to the sentencing judge's attention (assuming they were known to counsel) would not have accomplished anything material. Counsel's strategy at sentencing focused on arguing against a life term because it would eliminate any incentive for rehabilitation, and arguing in favor of concurrent rather than consecutive sentences. This was a careful and realistic approach, given the brutal crimes of which the defendant had been convicted. It would not have been "manifestly unreasonable" for counsel to have concluded that emphasizing the defendant's personal difficulties would have undercut counsel's theme that the defendant "realize[d] the severity of the offenses" and knew he "must be sent to jail." "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
In addition, counsel did argue that the defendant was only twenty-eight years old, married with two children aged five and seven, and that a life sentence would unnecessarily constitute "giv[ing] up as [a] Society on that individual." Counsel was not required to raise every possible mitigating factor in order to be effective. See Commonwealth v. Fanelli, 412 Mass. 497, 503 (1992) (failure to inform judge of defendant's traumatic childhood not ineffective).
Counsel also argued for concurrent sentences, which is another factor weighing against a finding of ineffective assistance. See Commonwealth v. Caputo, 439 Mass. 153, 170 (2003). See also Commonwealth v. Stewart, 414 Mass. 1006, 1007 (1993) (acknowledging "the right of a defendant to effective assistance of counsel in the sentencing phase of a case especially in regard to a request for concurrent sentences").
In sum, the motion judge acted within her discretion in denying relief on the defendant's first theory of ineffective assistance.
b. Response to statement that defendant was "in command." The defendant also claims that trial counsel was ineffective in countering the prosecutor's argument at sentencing that the defendant—who was identified in trial testimony as the treasurer of the motorcycle club—was "in command" during the criminal episode, and that "the others would be expected to do his bidding." The defendant's affidavit avers that he had told trial counsel that Giers, the defaulted codefendant, was the vice-president and sergeant-at-arms of the club and therefore outranked him, but that counsel did not raise this point at sentencing. The defendant argues that this supposed lapse, along with counsel's failure to argue the absence of evidence that the defendant actually told his codefendants what to do, led to him receiving a more severe sentence than those codefendants. The motion judge acted within her discretion in rejecting this argument.
First, as discussed above, the judge did not, and was not required to, credit the defendant's affidavit regarding what he told trial counsel about Giers's role in the club. Second, trial counsel did challenge the evidence about the defendant's own role in the club. Third, there is no evidence that the sentencing judge concluded that the defendant was "in command" and for that reason more culpable. After the detective testified, the judge made no finding or comment regarding the defendant's role, stating instead that "one of these defendants might be less culpable than others" (emphasis supplied), and postponing sentencing until the following week so that he could study the case and the three codefendants' differing criminal records.
The same is true of the affidavit of the defendant's codefendant and friend, Woodard, stating that Giers was the club's vice-president and thus the ranking member present during the crimes.
When a police detective testified during the sentencing hearing about the defendant's role, trial counsel effectively cross-examined the detective, emphasizing that some of his information was two and one-half years old, that he never had any conversations regarding the defendant's and Giers's positions in the club, and that he did not know who was running the club at the time of the crimes. The defendant has not suggested how his trial counsel could have offered more evidence of Giers's position. He has not argued that trial counsel should have called the defendant himself (or any other witness) to testify to that asserted fact.
The sentencing arguments suggest that Linehan had a less serious record than either the defendant here or Woodard.
Finally, the defendant has offered nothing to support his argument that he received a more severe sentence because of his position in the club. The trial evidence was that the defendant here initiated and (along with Giers ) directly perpetrated the rape. During sentencing the judge stated his view that "the really horrible part of this situation—that is, the gang rape—did not have its inception until [the defendant] arrived." The defendant's leading role in the rape provides, on the record as a whole, an obvious basis for the sentencing judge's discretionary decision to impose a life sentence on the defendant for that offense. The motion judge thus acted within her discretion in concluding that additional advocacy about whether the defendant was "in command" during the crimes would not have accomplished anything material for him.
The victim testified that Giers as well as the defendant had raped her, but Giers, having been defaulted, was not convicted or sentenced.
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c. Denial of motion without an evidentiary hearing. The judge did not abuse her discretion in denying the motion without a hearing. A hearing on a rule 30(b) motion is required only where it includes "sufficient credible information" to raise a "substantial issue." Commonwealth v. Denis, 442 Mass. 617, 628-629 (2004). See Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995) (presence of "substantial issue" depends on seriousness of issue asserted and adequacy of factual showing).
Conclusion. The order denying the motion for a new trial or resentencing is affirmed.
So ordered.
Affirmed.