Opinion
16-P-522
04-14-2017
COMMONWEALTH v. Corey L. KASTNER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Corey L. Kastner, was convicted of kidnapping, G. L. c. 265, § 26, witness intimidation, G. L. c. 268, § 13B, and two counts of aggravated rape. G. L. c. 265, § 22. The defendant appealed his convictions, and this court vacated the kidnapping conviction and the aggravated aspects of the rape convictions, and affirmed the conviction for witness intimidation. Commonwealth v. Kastner, 76 Mass. App. Ct. 131, 141 (2010). The defendant filed a motion for a new trial, claiming ineffective assistance of counsel. The motion was denied by the same judge who presided over the trial, and the defendant now appeals. For the reasons that follow, we affirm.
Background. The jury were warranted in finding the following facts: At the time of the alleged rape, the victim was sixteen years old, and had run away from the custody of the Department of Social Services (DSS) to live with her sister in Pittsfield. On the evening of April 1, 2007, the victim was at her sister's apartment with several other people, including her sister, her sister's boy friend Ryan Provenzano, and her friends Frank Underhill, Eric Daigle, and William Litchfield. The group was watching television, and some members were using cocaine, marijuana, and alcohol.
DSS is now called Department of Children and Families.
The defendant arrived at the apartment around 9:00 p.m., stayed for two or three hours, and then left. At some point, the sister and Provenzano went to sleep in their bedroom, while the victim, Underhill, Daigle, and Litchfield stayed in the living room watching television. At around 3:30 or 4:00 a.m. on April 2, the defendant returned to the sister's apartment, walked through the living room, and went into the sister's and Provenzano's bedroom.
About ten minutes later, the victim heard a knock at her sister's apartment's front door. Upon answering the door, the victim saw that it was the defendant. The defendant grabbed the victim by the arm and pulled her into the adjacent vacant apartment, where he proceeded to vaginally and anally rape her. The victim testified that she tried to scream, but was too afraid. After raping the victim, the defendant left the vacant apartment.
The Commonwealth's theory at trial was that the defendant walked through a trap door in the sister's bedroom closet that led into the adjacent vacant apartment. He then walked through the vacant apartment and exited through its front door, before returning to the sister's apartment's front door.
The victim waited a few minutes to make sure the defendant was gone, then went back into her sister's apartment, where Underhill and Litchfield were still watching television. The victim began sobbing, and told Underhill and Litchfield that the defendant had raped her. Approximately twenty minutes later, the victim went into her sister's bedroom and woke her. The victim was still crying as she told her sister she had been raped. The sister, a certified nursing assistant, examined the victim's anus and noted that there was blood on the victim's underwear. While the victim and her sister were talking, they heard noises coming from the vacant apartment next door. Litchfield looked out the window and saw the defendant attempting to gain access into the sister's apartment. Litchfield held the front door closed to keep the defendant out of the apartment, and the defendant eventually left. The sister then called the police. The responding officers noted that the front door to the adjacent apartment was open. Additional facts will be set forth in connection with our discussion of the issues.
When the police arrived, the victim hid in the bathroom because she did not wish to be returned to DSS custody. For the same reason, she also did not seek medical attention or report the rape to the police until some time later.
Discussion. A motion for a new trial may be granted only "if it appears that justice may not have been done." Mass.R.Crim.P. 30 (b), as appearing in 435 Mass. 1501 (2001). A motion for a new trial is addressed to the sound discretion of the motion judge, Commonwealth v. Smith, 381 Mass. 141, 142 (1980), and the decision will not be reversed unless it is manifestly unjust. Commonwealth v. Little, 384 Mass. 262, 269 (1981). Reversal is particularly rare where, as here, the motion judge was also the trial judge. Commonwealth v. Leavitt, 21 Mass. App. Ct. 84, 85 (1985).
A defendant asserting an ineffective assistance of counsel claim must "demonstrate serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," such that the "inadequate performance likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Bonnett, 472 Mass. 827, 832 (2015) (quotation omitted). "[T]rial tactics which may appear questionable from the vantage point of hindsight, do not amount to ineffective assistance unless manifestly unreasonable when undertaken." Ibid. (quotation omitted).
The defendant claims his trial counsel was ineffective because he (1) failed to impeach the victim with prior inconsistent statements from her grand jury testimony; (2) failed to introduce testimony from the sister's landlord that the trap door to the vacant apartment had been nailed shut the month before the rape, and that there was "no way" anyone could have gotten in through the trap door that night; and (3) elicited harmful testimony from the victim on cross-examination. We discern no merit in the defendant's claims. "In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Hudson, 446 Mass. 709, 715 (2006) (quotation omitted). We do not think any of the statements the defendant cites would provide a "powerful form of impeachment," see ibid.; indeed, the statements are not even necessarily inconsistent. Moreover, we agree with the judge that the testimony of the landlord that the trap door had been screwed shut prior to the rape would have been cumulative. Four other witnesses testified at trial that the door had been nailed shut at some point, and there was also evidence that the defendant nevertheless had modes of entry into the vacant apartment that night. Finally, defense counsel's choice to elicit testimony from the victim regarding the potential source of the carpet stains was not manifestly unreasonable at the time. During his closing argument, defense counsel made much of the fact that, although the victim testified that there were blood and excrement stains on the carpet, the Commonwealth's investigators did not submit any samples for analysis, and did not present any physical evidence at trial. That defense counsel's strategy was ultimately unsuccessful does not mean his assistance was ineffective.
Specifically, (1) at trial, the victim testified that she returned to DSS custody a week after the rape because she was afraid, whereas before the grand jury, she had testified that she returned because she had promised her father she would do so; (2) at trial, the victim replied "no" to the question, "Other than [helping the defendant straighten his hair a few times], did you really have any contact with him," whereas before the grand jury, she had testified that she had once slept on the same futon as the defendant while visiting her sister overnight, but nothing intimate or sexual had happened between them that night; (3) at trial, the victim testified that she had used marijuana on the night of April 1, 2007, whereas before the grand jury, the victim testified that she had not used drugs that night; (4) at trial, the victim testified that when the defendant returned to her sister's apartment at 3:00 or 4:30 a.m. on the night of the rape, he had walked through the living room without saying anything to anyone, whereas before the grand jury, the victim testified that the defendant had said "hi" to Litchfield as he walked through the living room.
The defendant refers to defense counsel asking the victim on cross-examination whether there was blood and excrement on the carpet of the vacant apartment as a result of the rape, to which the victim answered, "yes." Detective Stimpson testified that when he visited the vacant apartment a few weeks after the rape, the carpets looked as though they had been cleaned, but still had "some noticeable stain spots ... darker than the carpet."
There is no clear inconsistency because (1) the victim could have turned herself in to DSS both because she was afraid and because she had made a promise to her father; (2) simply sharing a futon with the defendant overnight does not necessarily constitute "contact" any more than helping the defendant straighten his hair does, and the defense in this case was not consent but that the rape never happened; (3) as the Commonwealth states in its brief, "[a] reasonable understanding of [the victim's] Grand Jury testimony [that she had not done any drugs on the night of April 1, 2007] is that she was not using cocaine, which the others were"; (4) in this context, we find no meaningful difference between the defendant saying nothing and saying "hi."
Detective Eason testified that the trap door was nailed shut when he investigated the sister's apartment on April 27, 2007; however, the caulking at the bottom of the trap door had been moved away as if the door had been opened. Officer Hallas also testified that when he arrived on the scene a few hours after the rape, he found the front door to the vacant apartment unlocked.
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Order denying motion for new trial affirmed.