Opinion
09-P-831
12-13-2011
COMMONWEALTH v. ANGEL HERNANDEZ.
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
The defendant, Angel Hernandez, appeals from his convictions and the denial of his motion for a new trial. He was convicted of five of the nine charges he faced arising out of an incident in which he was alleged to have sexually abused and assaulted the victim inside her home and committed a theft of property. The sole issue raised on appeal is whether trial counsel was ineffective in not objecting to the testimony of a nurse and several other witnesses who spoke to the victim after the crime, and in failing to request a limiting instruction. We affirm.
The defendant was found guilty of two counts of indecent assault and battery on a person over the age of fourteen (two counts), assault and battery, armed assault in a dwelling, and larceny of property with a value of more than $250. He was found not guilty of the charges of aggravated rape, armed robbery, and assault and battery by means of a dangerous weapon (two counts). The defendant was sentenced to two concurrent terms of four to five years in State prison on the indecent assault and battery convictions, an additional three to four year State prison sentence on the larceny charge to be served 'from and after,' and a concurrent term of probation.
Factual background. The evidence at trial indicates that the defendant and the victim were known to each other through the father of the victim's child. When the victim sought a restraining order against her child's father, the defendant appeared as a witness on his behalf. Thereafter, in late 2005, the defendant began calling the victim and told her he had a videotape that would prove her child's father was stalking her. On January 9, 2006, the defendant agreed to deliver the tape to her at her home the following day.
The victim testified that when the defendant came to her home on January 10, 2006, she was choked, forced at knife point to remove her clothing and perform a 'lap dance' and fellatio on him, assaulted, and robbed. The defendant testified that he had been involved with the victim in an intimate relationship for months before the day in question. He also testified that sexual acts occurred between them at the victim's home on January 9, 2006, but that the encounter was entirely consensual. He testified further that on the following day, he choked her during an incident in which she taunted him in the presence of another man during a street encounter.
There also was evidence at trial that the defendant traveled to Boston on January 10, 2006, where he met his sister and gave her a bag of jewelry he said was given to him by the victim. He asked her to sell the jewelry. She gave the jewelry to the Boston police. The jewelry turned out to be the property of the victim's mother and sister. The defendant made statements to the police in which he initially denied taking any jewelry from the victim, but later admitted it after being confronted with the evidence. The defendant told the police that the victim had offered him money to harm her child's father. He also said that earlier that day, he encountered the victim and another man on the street, and that she taunted and hit him. The defendant said he choked her, stabbed her companion, and fled. The defendant initially told the police he had never been inside the victim's home and denied ever having had sex with her. At trial, the defendant described a lengthy relationship with the victim involving many instances of consensual sexual intercourse at her home. He further testified that the victim had paid him in jewelry to harm her child's father. The defendant testified that he had a knife with him on January 10, 2006. The police were not able to confirm the defendant's story about the stabbing. After the third day of trial, the defendant stipulated that his DNA had been found inside the victim's apartment. There was evidence from Commonwealth witnesses that the victim's home appeared to have been ransacked, and that consistent with the testimony of the victim, there was evidence of the defendant's semen found on the floor, mirror, and pillow of one of the bedrooms. The first responders, including police officers and emergency medical personnel, described the victim as screaming and overwrought.
Discussion. There was no first complaint testimony in this case. The victim made what would have qualified as a first complaint to a female friend on the day of the crime, but this witness did not testify at trial. The Commonwealth did call the sexual assault nurse examiner (SANE nurse) who had examined the victim at the hospital on the day of the crime. Her testimony consisted of her observations of the victim at the hospital emergency room on January 10, 2006, and references to entries in the victim's medical records. She explained the purpose of the sexual assault collection kit (rape kit). The defendant claims that his attorney was ineffective in not objecting to this testimony and not requesting a limiting instruction.
1. Standard of review. When a claim of ineffectiveness of counsel is based on counsel's failure to object to certain evidence at trial, 'the standard for evaluating the ineffectiveness claim is not significantly different from the substantial risk standard that is applicable to our review of the underlying, unpreserved error.' Commonwealth v. Azar, 435 Mass. 675, 686 (2002). Therefore, the application of the substantial risk of a miscarriage of justice standard is appropriate in a case such as this. Id. at 686-687. Accord Commonwealth v. Curtis, 417 Mass. 619, 624 n.3 (1994).
2. Counsel's failure to object to certain evidence. It was appropriate for the SANE nurse to explain the purpose of the rape kit and to testify about the contents of the medical records. See Commonwealth v. Dargon, 457 Mass. 387, 393 (2010). There is no dispute that the SANE nurse was qualified to explain the victim's physical injuries. In this case, defense counsel submitted an affidavit in which he explained that it was his strategy to persuade the jury that the victim's allegations were a fabrication. The motion judge, who also was the trial judge, made the same assessment in his detailed memorandum and order denying the defendant's motion for a new trial.
This case is controlled by Commonwealth v. Adams, 374 Mass. 722, 728 (1978), where the Supreme Judicial Court noted that strategic decisions by defense counsel will not be considered ineffective assistance unless they are 'manifestly unreasonable.' In view of the statements made by the defendant in advance of trial and the physical evidence offered by the Commonwealth that linked him to the victim's home and indicated he had sexual relations with her, defense counsel's trial strategy was not 'manifestly unreasonable.' Thus, there was no reason for defense counsel to object to evidence that tended to corroborate the fact that sexual activity had taken place between the defendant and the victim.
Defense counsel's failure to request redaction of that portion of the report of the emergency room physician that reported the victim's diagnosis as 'sexual assault' was error. However, we cannot say that counsel's actions reached the level of 'serious incompetency, inefficiency, or inattention.' See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
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Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Trainor, Milkey & Agnes, JJ.),