Opinion
10-P-1813
03-13-2012
COMMONWEALTH v. SAMUEL GONZALEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of three counts of indecent assault and battery on a child under fourteen years old, his girlfriend's young son. He now appeals his conviction and the order denying his motion for a new trial. We affirm, essentially for the reasons stated in the judge's thoughtful memorandum on the defendant's motion.
An earlier trial had resulted in a mistrial due to a hung jury.
The trial judge also was the motion judge.
Judge's instruction. During his closing argument, the defendant's trial counsel stated,
'Now [the victim] indicated that this happened when he was . . . in the fourth grade, about nine years of age. And when this happened, [the defendant] masturbated him, he had an erection, so that he ejaculated. . . . At nine years of age, he ejaculated. Was he physically mature enough to ejaculate at nine years of age? Was he physically mature enough to father a child? It didn't happen. It didn't happen.'
After the argument, the prosecutor objected and asked the judge to instruct the jury that determining the ability of a nine year old to ejaculate would require expert testimony. At the charge conference, the judge agreed. Trial counsel argued, as does the defendant's appellate counsel, that the issue was one of common knowledge. When the judge proposed language for the instruction, trial counsel objected to giving the instruction at all, but stated, 'However, if you are determined to read an instruction, I would agree to that one.' During the charge, the judge gave the proposed instruction, as follows:
Trial counsel maintained that the photograph of the nine year old victim admitted in evidence '[c]ertainly shows that he's not mature enough. He doesn't have facial hair, he's small, and I think it's something that's a jury question that we don't need a medical expert on.'
'One of the attorneys in this case alluded to the subject of whether or not a nine year old could achieve ejaculation. . . . There was no expert -- no medical expert who testified that a nine year old could or could not have such capacity. It is your function to determine whether the government has proven the defendant guilty beyond a reasonable doubt as to whichever indictment you are then considering. You must consider the evidence and only the evidence which was admitted in this case.'
The Commonwealth argues, persuasively, that this instruction is in accord with the analysis in Commonwealth v. Hrabak, 440 Mass. 650 (2004). In Hrabak, the court opined that '[t]he flexibility of a child's rectum to accommodate an adult penis without injury is a matter beyond the common understanding of most jurors.' 440 Mass. at 656. Therefore 'it was error for the prosecutor to [make the argument] without expert testimony.' Ibid. In that case, the prosecutor's error was compounded because 'at no time did the judge take any step to address the specific problem raised by this particular misstatement, namely, that the prosecutor was inviting the jury to draw an inference that could not be drawn in the absence of expert testimony.' Id. at 657. In the present case, where trial counsel made a similarly unfounded statement in argument, the judge appropriately and accurately instructed the jury that there had been no expert testimony, and that they were to confine their deliberations to the evidence that was admitted. We see no error.
Ineffective assistance. The defendant also argues that his trial counsel was ineffective because he failed to impeach the victim with inconsistent testimony from the first trial. The record reveals that counsel vigorously cross-examined and impeached the victim with prior inconsistent statements made to his father, to a police detective, and before the grand jury. A decision by trial counsel to impeach a witness is a strategic consideration that is viewed with deference. See Commonwealth v. Knight, 437 Mass. 487, 502 (2002). 'Absent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion.' Ibid., quoting from Commonwealth v. Fisher, 433 Mass. 340, 357 (2001). Moreover, '[e]ffective representation does not mandate the use of every possible impeachment item.' Commonwealth v. Britto, 433 Mass. 596, 604 (2001).
In his memorandum on the defendant's motion for a new trial, the judge described counsel's role in the trial as follows: 'Even though the defendant opted to have his counsel from his first trial serve him as standby counsel, this relationship, as the trial progressed, phased into a joint representation and then standby counsel appeared to take over the defense with the assent of the defendant. The defendant did examine one witness and seemed to be an active participant concerning issues arising during trial and at sentencing. The attorney examined witnesses and delivered the arguments to the jury.'
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We agree with the judge that the defendant has failed to show that his trial counsel's tactics were ineffective or that choosing different impeachment materials would have accomplished something better for the defendant. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Judgments affirmed.
Order denying motion for a new trial affirmed.
By the Court (Berry, Trainor & Hanlon, JJ.),