Opinion
18-P-1616
12-04-2019
COMMONWEALTH v. Daniel LOPEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant brings a consolidated appeal from his convictions under G. L. c. 265, §§ 13B and 23, and the order denying his postconviction motion for a new trial. On appeal, the defendant contends the judge abused his discretion in failing to conduct a voir dire of the alleged victims, and that the judge erred in denying the defendant's motion for a new trial. We discern no abuse of discretion in the failure to conduct a voir dire. However, we vacate the order denying the motion for a new trial and remand for an evidentiary hearing.
1. Voir dire. The defendant argues that a voir dire of the alleged victims was required in order to determine when their earliest memory of disclosing allegations of sexual assault was, and the judge's failure to conduct a voir dire was an abuse of discretion. We discern no error in the judge's decision not to conduct a voir dire.
The first complaint doctrine seeks to balance two competing concerns: that "of a [victim] (who ... may be still a child) in having her credibility fairly judged on the specific facts of the case rather than unfairly by misguided stereotypical thinking, with that of a defendant in receiving a trial free from irrelevant and potentially prejudicial testimony." Commonwealth v. Arana, 453 Mass. 214, 228 (2009). First complaint testimony is admissible "to assist the jury in determining whether to credit the [victim's] testimony about the alleged sexual assault." Commonwealth v. King, 445 Mass. 217, 219 (2005). Under the doctrine, "the recipient of a [victim's] first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of the first complaint," and may also testify to "the details of the complaint." Id. at 218-219. "[T]estimony from multiple complaint witnesses" is not allowed. Id. at 243. "[Any ] discrepancy between the memory of a victim and the person receiving the complaint -- including a victim's failure to remember making the complaint -- goes to the weight of the evidence rather than to its admissibility." Commonwealth v. Dale, 86 Mass. App. Ct. 187, 191 (2014).
Prior to King, the first complaint doctrine was known as the fresh complaint doctrine, under which the Commonwealth was allowed to "introduce out-of-court statements seasonably made by the victim after the alleged sexual assault for the purpose of corroborating her own testimony concerning the alleged assault." King, 445 Mass. at 218. Under the fresh complaint doctrine, while courts remained "attentive to the potential dangers of the prejudicial ‘piling on’ of fresh complaint testimony," courts permitted more than one witness to testify at trial to the alleged victim's disclosure. Id. at 235. When the scope of the doctrine was reconsidered and reframed in King, the court held that testimony from multiple complaint witnesses would no longer be permitted, "limiting the testimony to that of one witness -- the first person told of the assault." Id. at 243. By limiting the Commonwealth to one first complaint witness, the first complaint doctrine was designed to protect defendants from "any prejudicial ‘piling on’ " of witnesses to whom the alleged victim complained of the alleged assault. Id. at 245.
Where factual uncertainty affects the question of the identity of the person to whom the first complaint was made, or whether a different witness might be substituted as the first complaint witness, a voir dire should be conducted. See Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008) ; Commonwealth v. Murungu, 450 Mass. 441, 446 (2008). We review the decision whether to conduct a voir dire for abuse of discretion. See Murungu, supra at 447.
An abuse of discretion occurs where the judge "made ‘a clear error of judgment in weighing’ the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The reviewing court "must give great deference to the judge's exercise of discretion." Id.
The defendant contends that a voir dire was necessary here because the first complaint witness for each alleged victim testified to disclosures occurring in 2011, while the Commonwealth's proffer advised that the alleged victims would testify to disclosures occurring in or around 2013 because they were unable to remember earlier disclosures.
The inconsistencies cited by the defendant relate solely to the timing of the first complaint, and not to the identity of the persons to whom the complaint was made. The same persons were present at the time of the complaint under both the alleged victims' and the first complaint witnesses' versions of the events.
Based on the police reports and representations from the Commonwealth, the judge properly determined who "the first person told of the assault" was for each alleged victim, and allowed that person to "testify to the details of the alleged victim's first complaint of sexual assault." King, 445 Mass. at 243. The first complaint witnesses' testimony was not rendered inadmissible because the alleged victims did not remember making a complaint in 2011; discrepancies concerning the date of disclosure, rather than the identities of the persons to whom disclosures were made, go to the weight rather than the admissibility of the evidence. See Dale, 86 Mass. App. Ct. at 191. Accordingly, the judge did not abuse his discretion by declining to conduct a voir dire.
We use pseudonyms to refer to the alleged victims and witnesses in this matter. Both Alex and Vanessa were present for Seth's and Ian's disclosures in 2011, and Vanessa appropriately testified to that effect. Darlene and Marcy testified as each other's first complaint witnesses, and Linda testified as Nancy's first complaint witness based on an encounter with the defendant in a supermarket.
The defendant also argued that the judge erred because he "substituted Vanessa for [Alex]" as Seth's and Ian's first complaint witness. However, the police report indicates that both Alex and Vanessa were at the family meeting in 2011 when Seth and Ian disclosed. The alleged victims disclosed to Alex and Vanessa at the same time, making them both "the first person[s] told of the assault," and under King the testimony of either would be considered first complaint testimony. 445 Mass. at 243. Accordingly, the argument that Vanessa was a substitution for Alex has no merit.
2. New trial motion. The defendant also argues that the judge erred in denying his motion for a new trial based on a claim of ineffective assistance of counsel.
A judge "may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). A judge may rule on a motion for a new trial "on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001).
Determining whether the motion and supporting documents raise a substantial issue "involves consideration of the seriousness of the issue itself and the adequacy of the showing that has been made with respect to that issue." Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). The defendant's supporting materials "need not prove the factual premise of that motion ... but they must contain sufficient credible information to ‘cast doubt on’ the issue." Id., quoting Commonwealth v. Britto, 433 Mass. 596, 608 (2001).
In motions involving claims of ineffective assistance of counsel, the judge "is entitled to draw a negative inference from the defendant's failure to secure an affidavit from trial or plea counsel." Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 550 (2014). However, the absence of an affidavit from trial counsel does not "by itself, defeat[ ] a claim of ineffective assistance of counsel," particularly in instances where "successor counsel filed affidavits attesting to [previous] counsel's lack of cooperation." Id. at 551.
To succeed on his claim of ineffective assistance of counsel, the defendant was required to make a showing that trial counsel's representation "[fell] measurably below that which might be expected from an ordinary fallible lawyer" and that the defendant was deprived "of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
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Here, the defendant made multiple contentions of failures by trial counsel in support of his motion for a new trial, including, in particular, trial counsel's failure to call an expert witness. The defendant argued that testimony from an expert witness would have helped provide a more successful defense at trial by attacking the validity of the forensic interviews, exploring the circumstances surrounding the alleged victims' first complaints, and exposing possible misrepresentations or falsehoods within the alleged victims' memories. The defendant attempted to, but ultimately did not, obtain an affidavit from trial counsel in support of his motion.
In his decision denying the defendant's motion for a new trial, the judge concluded that the defendant had not made a showing of a substantial issue warranting an evidentiary hearing. On the defendant's claim of ineffective assistance of counsel, the judge concluded that "the failure to call an expert was a strategical/tactical decision of counsel and was not manifestly unreasonable," noting that "in the absence of an affidavit from trial counsel, it cannot be found that counsel failed to consult with or consider an expert witness." The judge also reasoned that "[m]any of the suggestions by the retained expert were in fact covered by trial counsel."
While there was some overlap in trial counsel's defense tactics and suggestions from the retained expert, trial counsel did not employ all of the expert's suggestions. Moreover, absent an affidavit from trial counsel, it is unclear whether counsel's failure to engage an expert was a strategic decision or ineffective assistance.
In his affidavit and attached report, the expert opined that the forensic interviewer was "not a neutral participant" in the interviews and did not explore alternative hypotheses or motives for the alleged victims' disclosures, which, the expert opined, is critical in cases of sexual assault "where the only evidence is the testimony of children." Trial counsel did not present evidence of flaws in the forensic interview, explore any potential biases on behalf of the forensic interviewer, or demonstrate how these perceived issues may have affected the credibility of the alleged victims.
Additionally, the expert stated that due to the amount of time that separated the incidents, the interviews, and the alleged victims' testimony, it was possible that other details of the alleged victims' lives became "intermingled" with the details of the incidents or that their memories were "contaminated" by conversations about the incident. While trial counsel attacked the alleged victims' credibility by arguing the implausibility and impossibility of the allegations against the defendant, trial counsel did not present scientific evidence of how time and other events may have affected the alleged victims' memories of the incidents.
Moreover, in the absence of an affidavit from trial counsel (which appellate counsel sought but was refused), there is no basis in the record to assign strategic purpose as the basis for trial counsel's decision not to engage or call an expert. Because the defendant was unable to make an adequate showing on his ineffective assistance of counsel claim due to trial counsel's unwillingness to provide an affidavit, the defendant is "entitled to an evidentiary hearing, with an opportunity to secure [trial] counsel's presence by subpoena" to determine whether or not the failure to call an expert was a strategic decision or a substantial issue that warrants a new trial. Martinez, 86 Mass. App. Ct. at 545-546.
Accordingly, we affirm the judgments, vacate the order denying the defendant's motion for a new trial, and remand the case for further proceedings consistent with this memorandum and order.
So ordered.
Affirmed in part; vacated in part and remanded.