Opinion
18-P-779
04-06-2022
COMMONWEALTH v. David B. GENDRON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from his convictions of rape of a child aggravated by more than a five-year age difference and indecent assault and battery, the defendant claims error in the denial of his motion for a new trial based on ineffective assistance of counsel. We discern no error of law or abuse of discretion, and affirm.
We review a judge's denial of a motion for a new trial for an abuse of discretion or other error of law. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Further, "[w]e give special deference to the decisions of a judge who was, as here, the trial judge." Commonwealth v. Murphy, 442 Mass. 485, 499 (2004).
To establish a claim of ineffective assistance of counsel, a defendant must show that trial counsel's conduct fell "measurably below that which might be expected from an ordinary fallible lawyer," and that this conduct "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Where a judge would have overruled an objection, defense counsel's failure to object cannot be the basis for an ineffective assistance of counsel claim. See Commonwealth v. Walker, 460 Mass. 590, 609 (2011).
1. Bad acts testimony. The defendant first challenges the failure of trial counsel to object to testimony regarding certain uncharged bad acts.
In his written memorandum of decision, the motion judge, who was also the trial judge, observed that the victim's trial testimony was admissible because the uncharged acts at issue "were part and parcel of the charged offenses and part of the same course of conduct." Massachusetts courts have long recognized that testimony regarding uncharged acts is permissible where such acts are inextricably intertwined with the description of the events forming the basis on which the defendant was charged. See, e.g., Commonwealth v. Hoffer, 375 Mass. 369, 373 (1978). Since any objection by trial counsel would have been unsuccessful, counsel's failure to make one cannot serve as the basis for a claim of ineffective assistance.
Additionally, where counsel's decisions at trial are tactical and not manifestly unreasonable, they cannot be the basis of an ineffective assistance of counsel claim. Commonwealth v. Adams, 374 Mass. 722, 728 (1978). Here, trial counsel used the victim's testimony about the uncharged acts to highlight inconsistencies in the victim's previous testimony, and counsel's failure to object may well have been tactical.
2. Bias. The defendant next argues that by informing the prosecution that it had not yet met its evidentiary burden of proving a necessary element of rape, the judge impermissibly showed partiality and bias, and that trial counsel's failure to object to the judge's intervention constituted ineffective assistance.
As support for his argument, the defendant cites two cases where intervention by a trial judge required reversal and a new trial. See Commonwealth v. Sneed, 376 Mass. 867, 870 (1978) ; Commonwealth v. Ragonesi, 22 Mass. App. Ct. 320, 323 (1986). In both cases, the trial judge assumed control of questioning the witness in open court and either undermined the witness's credibility in view of the jury, or else caused the witness to change their original position and adopt the judge's position after extensive questioning.
The present case is in no way comparable to the cases on which the defendant relies. During the Commonwealth's presentation of its case, the judge called counsel to a sidebar after dismissing the jurors, and alerted the prosecution that, in his view, it had not yet met its evidentiary burden as to an essential element of rape.
Unlike the cases cited, the defendant has made no claim that the jury were aware of the judge's instruction, or that the judge's conduct in any way displayed bias in open court. Instead, the defendant claims that, had the judge kept the prosecution in the dark regarding his view of the case law on its burden of proof, it would have failed to meet that burden and the defendant might have avoided conviction on the most serious offenses. While a judge must remain impartial, Commonwealth v. Williams, 456 Mass. 857, 874 (2010), the judge is obliged to "see that the jury have a fair chance to do justice" (citation omitted). Commonwealth v. Carter, 475 Mass. 512, 525 (2016). Here, the judge communicated only as much as was necessary to alert the prosecution that it would be required to present more evidence to sustain its burden of proof, and thereby to give the jury a fair chance to do justice. As with the defendant's first claim, there was no error by the trial judge, any objection by counsel to the judge's intervention would have been unsuccessful, and trial counsel's failure to object may well have been tactical and did not constitute ineffective assistance.
Judgments affirmed.
Order denying motion for new trial affirmed.