Opinion
No. 14–P–1457.
06-03-2016
COMMONWEALTH v. Justin C. MUSTAFA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a District Court jury of wilful and malicious destruction of property under $250, assault and battery, four counts of assault and battery by means of a dangerous weapon (ABDW), and witness intimidation. In addition, he appeals from the denial of his motion for a new trial, which appeal has been consolidated with the direct appeal of his convictions. We affirm.
The trial judge granted the defendant's motion for a required finding of not guilty on a charge of animal cruelty premised on allegations that the defendant forced the victim to perform oral sex on the defendant's dog. However, the witness intimidation charge predicated on the defendant's alleged threat to disseminate a video of that incident went to the jury. In addition, the defendant was acquitted of a count of assault and battery predicated on an alleged choking incident in the couple's bedroom as well as two of the five ABDW counts alleging that the defendant injected the victim with heroin against her will.
Background. Under the familiar standard, Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), looking at the evidence in the light most favorable to the Commonwealth, the jury could have found as follows. As of late June, 2013, the defendant and the victim had been in a relationship for nearly two years. They had been living together in the defendant's grandparents' home in Falmouth since January, 2012. The victim was the primary witness at trial, testifying over the course of two days. She testified that the nature of her relationship with the defendant, already an unstable “rollercoaster ride,” changed markedly for the worse beginning on June 29th when his suspicions and accusations concerning her infidelity prompted an argument in his car during which he took her phone and threw it out the window and into a puddle, the basis of the malicious destruction conviction.
After this fight, the couple reconciled. The victim testified that she and the defendant were hugging and kissing in the shower later that evening when he struck her about her face and eyes with the knuckles of the back of his hand numerous times. The victim told the jury that the defendant then choked her on the bed in their bedroom shortly after the shower incident.
The victim testified that the defendant, a heroin user, injected her with heroin against her will every day for five days during the week that followed. In addition, the victim described an incident where, in the course of a drive together, the defendant pulled over to the side of the road and forced the victim to pull down her pants and bend over preparatory to his whipping her with his belt. In a separate incident that week, after a drive in which the defendant threatened to kill the victim and leave her in western Massachusetts and pressured her to throw rocks through the window of a suspected paramour, the defendant forced the victim to perform oral sex on his dog while he made a video recording of the incident on his mobile phone. He then threatened to show the video to members of the victim's family if she reported his conduct to the police.
The victim testified that she had never before used heroin or other drugs.
Interspersed with these episodes, the victim also acknowledged contemporaneous consensual sexual activities with the defendant. For example, the victim testified that she engaged in consensual sex with the defendant after the choking incident that had followed the shower incident. Likewise, she characterized as consensual the sex that the defendant engaged in with her at the side of the road after he whipped her with his belt. After the incident involving the dog, the victim stated that she consensually submitted to the defendant's request that she brush her teeth and then perform oral sex on him. In addition, the couple had a history of consensual slapping and choking during sex.
The victim ultimately broke up with the defendant on July 5th and reported the incidents of the previous week to the police on July 6, 2013. Photographs were taken (and later admitted in evidence at trial) of a bruise on the victim's buttocks attributed to the belt incident and scar tissue on her arm attributed to needle use.
Discussion. 1. Exclusion of video evidence. The couple video recorded some of their sexual encounters, including during the week in question. Prior to and during the trial, the defendant attempted to introduce some of these videos in order to demonstrate to the jury the nature of the couple's relationship and to impeach the victim's testimony.
The Commonwealth moved in limine to exclude the videos, while the defendant filed a motion in limine seeking permission pursuant to G.L. c. 233, § 21B, to introduce evidence of specific instances of prior sexual conduct between the defendant and the victim. The defendant's pretrial motion noted the existence of the consensually made videos of sexual encounters and that the patterns of consensual sexual practices depicted in those videos would contradict the victim's claims. At argument on the motions in limine, the Commonwealth contended that exclusion of the videos would not prevent reasonable cross-examination as trial counsel could still ask questions about the consensual sexual acts between the defendant and the victim.
The defendant was not charged with any offense listed in the rape-shield statute. G.L. c. 233, § 21B. In fact, as discussed more fully below, the judge gave trial counsel wide latitude to conduct a lengthy and far-reaching cross-examination of the victim in which her sexual practices with the defendant were discussed in detail. The question was therefore not the admissibility of evidence of the victim's past and contemporaneous sexual conduct with the defendant. That evidence was admitted without objection in the form of oral testimony from the victim on cross-examination. The question on appeal, as it was at trial, is only whether the defendant was further entitled to admit video evidence of the same.
Ruling on the motions in limine, the trial judge declined to admit the videos as substantive evidence but signaled that defense counsel would have leeway in cross-examining the victim and that he would consider admitting the videos for impeachment. The trial judge ultimately allowed the defendant to show a brief four to five second clip of the defendant slapping the victim in the face during a fully consensual oral sex encounter to challenge the distinction the victim sought to maintain between the pleasurable and playful slapping to which she consented and the violent and forceful slapping that formed the basis of the assault and battery charge arising from the shower incident. Roughly thirty additional minutes of footage were excluded. The defendant claims that his trial counsel then preserved for appeal the issue of introducing the videos in their entirety by objecting to their exclusion during the course of the trial in unrecorded conferences with the judge, which he sought to have reflected through a motion pursuant to Mass.R.A.P. 8(e) that was denied by the trial judge.
The defendant does not, however, suggest that the trial judge did not sufficiently view the proffered evidence prior to balancing its probative value against its potential for unfair prejudice. Contrast Commonwealth v. Carey, 463 Mass. 378, 390–391, 974 N.E.2d 624 (2012).
The videos are covered by a protective order.
We need not decide whether the defendant's motion to correct the record pursuant to rule 8(e) was erroneously denied. Even if we accept for the sake of argument that the defendant's objection to the exclusion of additional videos was fully preserved, we discern no error and no prejudice to the defendant where, as he requested in his motion in limine, he was effectively able to demonstrate the “pattern of conduct between the alleged victim and the defendant” on cross-examination and “to use the prior sexual relationship with the defendant to fully explore the credibility of the complainant” such that introduction of the videos would have added little to the trial except further humiliation of the victim in front of the jury.
This entire case came down to the victim's credibility on the issue of her consent. The jury was either going to believe the victim or not that she had consented to certain conduct with the defendant that might be considered degrading, harmful, and violent (e.g., slapping and choking during sex, “fisting” , and nipple pinching), but not other degrading, harmful, or violent conduct (being injected with heroin, being whipped with the defendant's belt hard enough to leave a bruise, performing oral sex on a dog, and certain slaps and chokes during sex play and otherwise). Part of the jury's credibility calculus would also likely reflect that even after the assertedly nonconsensual conduct, the victim not only did not report the abuse to anyone for a number of days or seek to flee from the defendant's company but in fact stayed with the defendant and continued to consensually engage in sex with the defendant (including consensual oral sex on the defendant after the oral sex on the dog, consensual sex on the side of the road after being nonconsensually whipped with a belt, and consensual sex using a shampoo bottle that was videotaped after the belt incident).
The victim testified that “fisting” is “[f]or someone to use their fist in another person's body cavity.”
Given the centrality of victim credibility to the case, the defendant was entitled to wide latitude in exposing any credibility problems. See Commonwealth v. Aguiar, 400 Mass. 508, 513, 510 N.E.2d 273 (1987). However, that latitude is not boundless. See Commonwealth v. Alcantara, 471 Mass. 550, 564–565, 31 N.E.3d 561 (2015). See also Commonwealth v. Carroll, 439 Mass. 547, 552, 789 N.E.2d 1062 (2003).
In the context of this case, we can accept for the sake of argument on appeal that these videos had the rational tendency to prove whether the victim had consented to certain physical conduct by the defendant as part of mutual sexual gratification. However, “even relevant evidence may not be admitted if ‘its probative value is substantially outweighed by the danger of unfair prejudice.’ “ Commonwealth v. Carey, 463 Mass. 378, 387–388, 974 N.E.2d 624 (2012), quoting from Mass. G. Evid. § 403 (2012). “We entrust questions of relevancy and prejudicial effect to the sound discretion of the trial judge, whose determinations we will not disturb except for palpable error.” Carey, supra at 387–388, 974 N.E.2d 624 (quotation omitted).
Commonwealth v. Carey, 463 Mass. 378, 974 N.E.2d 624 (2012), casts doubt on the extent to which the victim's consent would have been relevant to the ABDW charge involving the belt, and possibly also those charges arising from the heroin injections. See id. at 385–386, 974 N.E.2d 624 (reaffirming the conclusion of Commonwealth v. Appleby, 380 Mass. 296, 310 [1980], that “as a matter of public policy, ... one may not consent to become a victim of an assault and battery with a dangerous weapon”).
Where the videos were proffered by the defendant to show the nature of his relationship with the victim and not by the Commonwealth as prior bad act evidence, the distinction in the standard for admissibility clarified by Commonwealth v. Crayton, 470 Mass. 228, 249 n. 27, 21 N.E.3d 157 (2014), does not apply.
In light of the leeway granted to trial counsel on cross-examination, and the effective use made of that leeway in the lengthy and far-reaching cross-examination counsel conducted, there was almost no probative value in showing the videos themselves that would not have been cumulative of other evidence before the jury. On the other hand, given the graphic nature of the video content, there was substantial risk of unfair prejudice to both the Commonwealth and the victim. The only aspects of the footage that the victim denied on cross-examination related to minor, collateral points that she could not remember, specifically whether she had ever called the defendant “daddy” or said that she wanted his “cock.” The defendant successfully impeached the victim with prior testimony to the effect that she found slapping pleasurable in sexual encounters. The jury saw footage representative of the slapping the couple engaged in during sex play and so was able to assess the victim's credibility in her characterizations of the kind of slaps to which she consented and those to which she did not, a point made explicitly by the defendant in closing argument.
Even though the jury only saw a few seconds of the videos, they were nonetheless exposed to various graphic descriptions of the excluded videos' content. The victim testified that she consented to the introduction of a shampoo bottle in their sex acts and the defendant's insertion of his whole hand into her vagina. She acknowledged that the defendant had slapped her and put his hands around her neck prior to the week at issue, that she had previously testified that the slapping and putting his hands around her neck was a form of sexual gratification for them both, and that she found nipple pinching pleasurable. She further acknowledged that there is a video of the defendant “fisting” her at her request during this time period and that she had seen videos that show her being slapped in the face and performing oral sex on the defendant during the period at issue in the case. There was no need for the jury to see videos confirming the same or depicting other of the couple's sex acts. Trial counsel also successfully impeached the victim's memory of the encounters by reference to the videos, eliciting an acknowledgment that she did not remember a certain sexual encounter until the police showed her videos.
Given the testimony, these videos were not necessary to provide a fuller picture of the couple's relationship or to impeach the victim on matters that she had already acknowledged were features of her consensual relations with the defendant. See Commonwealth v. LaVelle, 414 Mass. 146, 154–155, 605 N.E.2d 852 (1993) (no prejudice in limiting defense's cross-examination of Commonwealth's key witness where “there was extensive inquiry into the witness's bias and credibility in general” and “the matter sought to be elicited has been sufficiently aired” [quotation omitted] ). “[T]he judge's ruling was well within the bounds of his discretion and ... struck the proper balance between legitimate concern for the victim's dignity and the defendant's absolute right to attack her credibility and present fully his defense to the fact finder.” Commonwealth v. Bookman, 10 Mass.App.Ct. 891, 891–892, 409 N.E.2d 805 (1980). There was sufficient testimony about the videos here to render their admission unnecessary.
To the limited extent that the victim could not remember an aspect depicted in the videos, for example, whether the defendant had slapped her breasts and other parts of her body during consensual sex play, confrontation with the video would have added little to the impeachment and other information already in the hands of the jury.
The defendant made a more developed argument for admission of the videos in the hearing on his motion for a new trial. At that point, appellate counsel made an offer of proof that at least one of the recordings was made on the same evening that the defendant slapped the victim repeatedly in the shower and then choked her on the bed. In tying a specific video to the immediate aftermath of two of the charged offenses, the defendant could claim that the footage would not merely confirm the couple's historical pattern but would actually show the jury firsthand the victim's demeanor and behavior in the midst of the alleged abuse. In any event, our conclusion is ultimately unchanged where the jury was repeatedly told that the victim was prepared to engage in consensual activities right after nonconsensual acts of violence. “Based on the breadth and depth of this cross-examination over areas which impugn the witness's credibility and raise the possibility of bias, we conclude that if any errors as to the admissibility of evidence were made at trial, the defendant suffered no prejudice.” LaVelle, 414 Mass. at 155, 605 N.E.2d 852. Moreover, the record before us does not indicate whether the trial judge was informed at trial of the temporal significance of any of the video content, and there is no claim before us that trial counsel erred in failing to do so.
Appellate counsel's offer of proof also suggested that the video in question shows the choking incident of which the defendant was acquitted. Even assuming arguendo that this footage would have enabled the jury to both evaluate the incident for themselves and to assess her credibility more broadly by comparing the victim's contemporaneous behavior with her post-hoc characterizations of charged conduct (as opposed to other excluded videos depicting incidents that were not themselves charged as crimes), it appears that the defendant did not present this theory to the trial judge. The judge can hardly be faulted for failing to rule on that basis.
On appeal, we review the judge's evidentiary rulings to determine whether 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.” Commonwealth v. Johnson, 473 Mass. 594, 602, 45 N.E.3d 83 (2016), quoting from Commonwealth v. Kolenovic, 471 Mass. 664, 672, 32 N.E.3d 302 (2015). For the reasons stated above, we are persuaded that the judge's decision to permit wide-ranging cross-examination of the victim and exclude all video except the four to five seconds admitted for impeachment was within the range of reasonable alternatives in preserving the integrity of the trial and preventing the introduction of unfairly prejudicial or inflammatory evidence.
The defendant contends that the judge should have been primarily concerned with excluding evidence that would unfairly prejudice him or inflame the jury against him. However, trial judges are also required to ensure that the Commonwealth and the victim are not treated unfairly. See, e.g., Alcantara, 471 Mass. at 561–562, 31 N.E.3d 561 (judge must determine whether the probative weight of the evidence of the adequacy of the police investigation exceeds the risk of unfair prejudice to the Commonwealth by diverting the jury's attention to collateral matters); Commonwealth v. Paiva, 71 Mass.App.Ct. 411, 414, 882 N.E.2d 863 (2008) (trial judges must “balanc[e] the need for an orderly trial process in conformity with pretrial rules and agreements, including avoidance of possible prejudice to the Commonwealth from violations thereof, with the right of the defendant to defend himself against the charges, particularly where the evidence he proffers is material”). That the defendant can point to cases evincing concern for the defendant's rights in preventing the presentation of unfairly prejudicial or inflammatory material, see, e.g., Commonwealth v. Berry, 420 Mass. 95, 109, 648 N.E.2d 732 (1995), Commonwealth v. Bishop, 461 Mass. 586, 596, 963 N.E.2d 88 (2012), does not mean that the court does not consider the interests of all parties in preserving the integrity of the trial.
2. Voir dire questions. The defendant claims ineffective assistance of counsel arising from trial counsel's failure to request that the judge administer a voir dire question relating to whether the prospective jurors could fairly consider evidence that the victim consented to “rough/violent sex and/or unnatural sex acts” with the defendant.
“The standard used to determine claims of ineffective assistance of counsel is ‘to see whether there has been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.’ ... Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 754, 881 N.E.2d 753 (2008), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 n. 10, 364 N.E.2d 1260 (1977), quoting from Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). See Commonwealth v. Millien , 474 Mass. ––––, –––– (2016) (“[W]here counsel was ineffective for failing to present an available ground of defense, that defense is ‘substantial’ for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented”). We conclude that the defendant cannot satisfy his burden under either prong of the Saferian test and that his motion for a new trial on this basis was therefore properly denied.
Trial counsel's performance with respect to voir dire did not fall measurably below that of an ordinary fallible attorney. The standard here is not perfection. Commonwealth v. Knight, 437 Mass. 487, 503, 773 N.E.2d 390 (2002). Commonwealth v. Scheffer, 43 Mass.App.Ct. 398, 400, 683 N.E.2d 1043 (1997). That trial counsel could have propounded further proposed questions does not mean that he was incompetent for not doing so. In fact, trial counsel's efforts show diligent preparation and attention to the live issues in the trial. He proposed, and the judge agreed to inquire of the venire several questions that had been drafted to meet the facts of the case, including a question about the venire's attitude concerning domestic violence and fairly specific questions about whether allegations that the defendant was alleged to have coerced his girl friend to use drugs and forced her into sexual contact with a dog would interfere with the jury's ability to render a fair verdict.
As the trial judge noted in his denial of the defendant's motion for new trial, he did “not find that additional individual voir dire questions were required.” In reviewing a decision on a motion for a new trial, we accord deference to the views of a motion judge who was also the trial judge. Commonwealth v. Spray, 467 Mass. 456, 471, 5 N.E.3d 891 (2014). Moreover, “[a] trial judge, who is aware of the facts of a particular case and can observe firsthand the demeanor of each prospective juror, is in the best position to determine what questions are necessary reasonably to ensure that a particular jury can weigh and view the evidence impartially. Beyond those mandated by G.L. c. 234, § 28, questions to be asked during voir dire are within the broad discretion of the judge, except when there exists a substantial risk of extraneous issues that might influence the jury.” Commonwealth v. Lao, 443 Mass. 770, 776–777, 824 N.E.2d 821 (2005) (citation and quotations omitted). The Supreme Judicial Court has identified multiple areas that present, as a matter of law, a substantial risk that extraneous issues will likely influence prospective jurors and where, on request, questioning for bias becomes mandatory. These areas include interracial murder, interracial rape, sexual offenses against minors, and cases involving the insanity defense. Id. at 777–778, 824 N.E.2d 821. As the defendant conceded at oral argument, this case does not involve any of these circumstances in which additional individual voir dire would be mandatory.
Again, as discussed in note 7, supra, it is not clear that the victim's consent was even relevant to the ABDW charges the defendant faced.
“Where, as here, neither statute nor case law mandates individual questioning on voir dire, we defer to the judge's determination that the chosen jurors were fair and impartial .... Nothing in the record suggests that any of the ... jurors were less than fair and impartial.” Id. at 778, 824 N.E.2d 821 (citation and quotation omitted). Nor was the defendant deprived of a substantial defense where he argued the rough sex angle to the jury and may even have thereby obtained an acquittal on at least one charge. We therefore conclude that trial counsel's conduct was not constitutionally deficient and that the defendant cannot show that he was prejudiced by any juror bias in any event.
Judgments affirmed.
Order denying motion for new trial affirmed.