Opinion
15-P-1550
03-27-2017
COMMONWEALTH v. Jonathan LOPEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted of two counts of rape and abuse of a child, aggravated by age difference, G. L. c. 265, § 23A, and three counts of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. On appeal, the defendant challenges the effectiveness of his trial counsel and the prosecutor's closing argument. We affirm.
Background . We summarize the facts that the jury could have found. The victim, age twelve, frequently visited her half-sister at her Somerville apartment. The half-sister shared the apartment with the defendant, age twenty-five, and their infant child. During one visit, when the victim's half-sister was not home, the defendant got into bed with the victim and sexually assaulted her. He kissed her, fondled her breasts, digitally penetrated her vagina, and forced her mouth onto his penis.
The defendant was arrested on March 6, 2013. During booking, the defendant was permitted to place a telephone call. A recording of the defendant's part of the telephone conversation was admitted in evidence and played for the jury. At one point on the recording the defendant stated, "I made a mistake. [My girl friend's] sister gave me oral sex."
The defendant testified at trial and denied any sexual contact with the victim. According to the defendant, his statements during the recorded telephone conversation were intended only to explain to his girl friend the accusations against him. He denied that his statements were admissions.
Discussion . 1. Ineffective assistance . Trial counsel cross-examined the victim about her disclosure of the incident to a guidance counselor in October of 2012. The defendant claims this line of inquiry was constitutionally ineffective because it opened the door to an allegation of another sexual assault by the defendant that the Commonwealth then exploited on redirect examination. To establish ineffective assistance of counsel, the defendant must show that (1) counsel's performance fell measurably below that of reasonably competent counsel and (2) such deficiency "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
The defendant's ineffective assistance claim is raised for the first time in this direct appeal. "[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by the defendant viewing the case with hindsight." Commonwealth v. Peloquin , 437 Mass. 204, 210 n.5 (2002). However, "[a] claim of ineffective assistance may be resolved on direct appeal of the defendant's conviction when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Adamides , 37 Mass. App. Ct. 339, 344 (1994). Here, the record is clear that defense counsel's cross-examination regarding the first complaint was designed to undermine the victim's credibility by highlighting the delayed reporting of the sexual assault. This theory of defense was mentioned in defense counsel's opening statement, and was forcefully repeated in closing argument. It is clear that defense counsel was aware that cross-examining the victim about her conversation with her guidance counselor could open the door to allegations of additional sexual conduct with the victim. Indeed, he was forewarned of the possibility by the judge in pretrial discussions.
From this record we discern that defense counsel's decision to cross-examine the victim about her delayed disclosure of the sexual assaults was a strategic choice. Under these circumstances, where the victim's credibility was central to the Commonwealth's case, we cannot conclude that defense counsel's strategic decision to challenge her credibility with this line of cross-examination was manifestly unreasonable. See Commonwealth v. Ortega , 441 Mass. 170, 175 (2004), quoting from Commonwealth v. Rondeau , 378 Mass. 408, 413 (1979) (A lawyer's strategic decisions "do not amount to ineffective assistance ... unless they are ‘manifestly unreasonable’ when made").
2. Closing argument . Because the defendant did not object to the prosecutor's argument, "we review his claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice." Commonwealth v. Shanley , 455 Mass. 752, 773 (2010). The defendant contends the prosecutor improperly appealed to the jurors' emotions during closing argument by asking them to put themselves in the victim's position. We disagree.
In closing, defense counsel attacked the credibility of the victim by emphasizing that she never told her family members about the assault. Counsel argued that the victim did not disclose the assault to anyone until she met with her guidance counselor in October of 2012. The prosecutor responded:
"Think about her life at that time. She had been living with her father in Kentucky. Came back in two thousand eight. Was living with her mother who had a drinking problem. Was living with her half-sisters ... She didn't think anyone would believe her so she didn't tell anyone what the defendant did to her. She wasn't looking for attention."
The defendant claims this argument was error. It is well established that a "prosecutor may argue strenuously, and even with a flourish, that the jury should credit certain testimony or draw certain inferences consistent with the evidence before them." Commonwealth v. Merry , 453 Mass. 653, 667 (2009). Here the prosecutor's argument was a fair response to defense counsel's attack on the credibility of the victim. See Commonwealth v. Monzon , 51 Mass. App. Ct. 245, 253 (2001) ("A prosecutor may fairly respond to an attack on the credibility of the Commonwealth's witnesses ..."). Accordingly, we discern no error, much less a substantial risk of a miscarriage of justice.
Judgments affirmed .