Opinion
21-P-221
04-07-2022
COMMONWEALTH v. James OH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions of one count of aggravated rape of a child, two counts of rape of a child, and three counts of indecent assault and battery on a child. The defendant also appeals from the denial of his motion for a new trial, which was grounded in a claim of ineffective assistance of counsel. The appeals were consolidated. We affirm.
On motion of the defendant, the judge subsequently amended the charge of aggravated rape of a child to the lesser included offense of rape of a child.
Background. We summarize the trial evidence as follows. Between the ages of five or six and twelve or thirteen years old, the victim was sexually abused numerous times by the defendant. The defendant is the victim's uncle; he is married to the sister of the victim's mother.
While the victim was growing up, her extended family on her mother's side was very close with one another and frequently gathered at the victim's maternal grandparents’ home for dinners and holidays. Included at the gatherings were the defendant, his wife, and their three children. The victim, who was around the same age as her cousins, was close with the defendant's children and often had sleepovers with them at the defendant's home.
At trial, the victim testified that the defendant touched her inappropriately for the first time, while at her grandparents’ home, when she was approximately five or six years old. She testified that the defendant followed her into the bathroom, kissed her neck area, told her that she was "beautiful," and assured her that his behavior was "normal." Thereafter, almost every time the victim was at her grandparents’ home with family or slept at the defendant's home with her cousins, the defendant sexually abused her. Specifically, the victim testified that, when he did so, the defendant usually positioned her body such that she was facing away from him, removed her clothing, and licked her anus and vagina from behind. The victim testified further that, on some occasions, the defendant touched her vagina with his fingers, licked her breasts, and made her touch his penis. The victim recalled one particular occasion, when she was sleeping over at the defendant's home, and the defendant woke her up by lifting her shirt and licking her breasts. The victim's cousins, who were sleeping next to her on the living room floor, were awakened and the defendant instructed them to go back to sleep.
The abuse continued until the victim was twelve or thirteen years old when her aunt -- the defendant's wife -- walked in while the defendant was in the midst of sexually abusing her in her grandparents’ bedroom during a family gathering. The victim testified that, upon walking in, the defendant's wife instructed her to get dressed and go outside to play, and stated that "she was going to take care of this." At the time, the victim did not tell anyone about the abuse.
The victim first reported the abuse when she was twenty-one years old in a text message to her boyfriend. The victim testified that she told her boyfriend when she did because she had recently dropped out of college and was home alone often, and as a result, was having more frequent "flashbacks" of the abuse. When asked to describe what she meant by flashbacks, the victim testified, "I remember, like, coming out of the shower and kind of remembering certain things that happened. And I kind of didn't think that they were true, ‘cause why would you think that?" The victim further testified that she had recently become more sexually active with her boyfriend, which "felt familiar," and she "would remember ... what happened." The victim reiterated that she remembered the abuse prior to the flashbacks she described, and that she had no doubts about the truthfulness of those flashbacks.
A few weeks prior to telling her boyfriend, the victim had a dream about the abuse while at her boyfriend's home. The dream caused the victim to awake in a panic, and when her boyfriend asked what was wrong, she told him that she had a dream that she killed herself because she "didn't want to say anything" about the abuse. Later, however, when the victim disclosed the abuse to her boyfriend, she admitted that she had previously lied to him about the content of her dream and that it was in fact about "what happened" with the defendant.
In his defense, the defendant called his two sons and his wife as witnesses. Both sons testified that they recalled having sleepovers with the victim on the living room floor as children, but neither recalled waking up to the defendant in the room and asking them to go back to sleep. The defendant's wife also denied ever walking into her parent's bedroom and seeing the defendant alone with the victim or seeing any sort of sexual contact between the defendant and the victim. The defendant testified on his own behalf and denied ever having any sexual contact with the victim. Following trial, the jury found the defendant guilty of all counts, and the defendant timely appealed.
Subsequently, the defendant filed a motion for a new trial, claiming that his trial counsel provided ineffective assistance by failing to retain an expert in forensic psychiatry to assist him prepare for cross-examination of the victim, and to testify, inter alia, about memory formation, factors that impact the accuracy of memories, and the unreliability of memories once repressed but later recovered. The motion was denied. The defendant appealed, and his appeal from the denial of his motion for a new trial was consolidated in this court with his direct appeal.
Discussion. 1. Evidentiary claims. a. Apology text message. After the defendant's wife testified on direct examination, the prosecutor requested permission from the judge to cross-examine her about an apology text message she sent to the victim's mother (her sister) on the day she learned of the victim's allegations against the defendant. Prior to trial, the judge declined to rule on the admissibility of the apology but stated that, "depending on how [the defendant's wife's] testimony goes," it may be admissible on cross-examination, subject to a voir dire about her reasoning for sending the message. At trial, however, without first conducting a voir dire, the judge ruled that, in light of the wife's direct testimony, "her own statements about apologizing are relevant on two issues, one being her credibility in her testimony in front of the jury, and also the question of bias." Accordingly, the judge allowed the prosecutor to inquire about the apology text message. The defendant contends the apology was inadmissible hearsay, and thus its admission was error. We disagree.
Specifically, the prosecutor asked the defendant's wife, "did you ever text your sister an apology," and the defendant's wife answered, "Yes."
"[I]t is well established ‘that if a witness either upon [her] direct or cross-examination testifies to a fact which is relevant to the issue on trial the adverse party, for the purpose of impeaching [her] testimony, may show that the witness has made previous inconsistent or conflicting statements.’ " Commonwealth v. Wray, 88 Mass. App. Ct. 403, 408 (2015), quoting Commonwealth v. Parent, 465 Mass. 395, 399-400 (2013). "When used for impeachment purposes, prior inconsistent statements are not offered for the truth of the matter therein asserted, and, therefore, they are not hearsay." Commonwealth v. Donnelly, 33 Mass. App. Ct. 189, 197 (1992). "To be used for impeachment, it is not necessary that the witness's prior statement be a complete, categorical, or explicit contradiction of [her] trial testimony" (quotation and citation omitted). Parent, supra at 400. A "prior statement is considered inconsistent ‘if its implications tend in a different direction.’ " Commonwealth v. Condon, 99 Mass. App. Ct. 27, 35 (2020), quoting Commonwealth v. Pickles, 364 Mass. 395, 402 (1973).
Here, the defendant's wife testified that, contrary to the victim's testimony, she never walked in on the defendant alone with the victim and never observed the defendant sexually abusing the victim. Although her prior apology to the victim's mother does not directly contradict this testimony, the apology and its implications tend to suggest the opposite of what she swore to. See Commonwealth v. West, 312 Mass. 438, 440 (1942) ("not necessary that there ... be a contradiction in plain terms. It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict"). As a result, the apology was admissible for impeachment purposes, and the judge did not abuse her discretion in allowing the prosecutor to use the statement for that purpose. See Commonwealth v. Niemic, 483 Mass. 571, 581 (2019).
The defendant argues that the judge erred in admitting the apology without first conducting a voir dire concerning the defendant's wife's reasoning for sending it. The argument is unavailing. The defendant did not request a voir dire of his wife prior to cross-examination, and "there is no independent requirement that a judge conduct a voir dire prior to the admission of a witness's testimony." Commonwealth v. Rodriguez, 425 Mass. 361, 370 n.5 (1997). "The decision to conduct a voir dire examination of a witness rests in the sound discretion of the trial judge." Commonwealth v. Pina, 481 Mass. 413, 431 (2019). Here, where the judge concluded that the wife's direct testimony provided sufficient context for the apology's relevance without a voir dire, we perceive no abuse of discretion in her decision not to conduct one, especially in light of the fact that a voir dire was not requested by the defendant. While the defendant's wife's purported reasoning for sending the apology (i.e., because she felt sorry for her niece and did not have all of the information) might have potentially explained the inconsistency of her statements, it would not preclude the use of the apology as impeachment evidence. See Donnelly, 33 Mass. App. Ct. at 197.
The defendant also argues that, prior to determining the apology's relevance, the judge, in lieu of conducting a voir dire, should have requested to review the grand jury testimony of the defendant's wife and the victim's mother to determine their state of knowledge regarding the allegations at the time the apology was made. He contends that doing so would have revealed that neither knew that the victim's allegations extended beyond one occasion when the victim was five or six years old, and thus would have shown a logical disconnect between the apology and the defendant's wife's denial of observing the abuse when the victim was twelve or thirteen years old. The argument misses the point. Aside from the fact that the judge was not asked to review the grand jury testimony, evidence of the apology was not admitted substantively. Rather, it was admitted for impeachment purposes. As a result, it is of no import that, at the time the defendant's wife made the apology, she and the victim's mother were not informed of the full extent of the allegations. The implication of the apology is that the defendant's wife knew about, and indeed observed, the abuse prior to learning of the allegations. Evidence of the apology was thus admissible for impeachment purposes. See Donnelly, 33 Mass. App. Ct. at 197.
The defendant further argues that the judge deprived him of the right to present a full and fair defense by prohibiting him from eliciting on redirect examination of his wife her reasoning for sending the apology when she did, and how her opinion regarding the allegations changed after gaining more information. This argument is similarly unavailing. The right to "present a defense under the Sixth Amendment [to the United States Constitution] and art. 12 [of the Massachusetts Declaration of Rights] is not absolute," and "may be tempered according to the discretion of the trial judge." Commonwealth v. Carroll, 439 Mass. 547, 552 (2003). Although "it is well established that a witness may explain, modify, or correct damaging testimony that was elicited on cross-examination" (citation omitted), Commonwealth v. Olszewski, 416 Mass. 707, 718 (1993), cert. denied, 513 U.S. 835 (1994), "[t]he scope of redirect examination is a matter within the discretion of the trial judge." Id.
At trial, the judge did not prohibit the defendant from eliciting from his wife her reasoning for apologizing when she did. Indeed, the defendant's wife testified that, at the time she apologized, she did not know any details about the allegations, except for the fact that the victim alleged that she was "molested" by the defendant when she was little. The only testimony the judge prohibited the defendant from eliciting from his wife was testimony indicating that the defendant denied the allegations against him, and that after speaking to the defendant and reviewing the police report, the defendant's wife changed her opinion about the merits of the allegations. The judge's prohibition was consistent with "the long-standing rule that witnesses may not offer their opinions regarding the credibility of another witness." Commonwealth v. Plouffe, 52 Mass. App. Ct. 543, 546 (2001), quoting Commonwealth v. Montanino, 409 Mass. 500, 504 (1991). There was no abuse of discretion.
b. Request not to report. The defendant next argues that it was error to allow the prosecutor to cross-examine the defendant's wife about her statement to the victim's mother requesting that she not report the allegations. He contends that the request was hearsay and therefore inadmissible. Again, we disagree. As the judge concluded, whether the defendant's wife asked the victim's mother not to report the allegations against the defendant "goes to her bias and motive" for testifying. The statement was thus used for a nonhearsay purpose, and was admissible to impeach the defendant's wife. Compare Commonwealth v. Herrick, 39 Mass. App. Ct. 291, 294 (1995). The judge did not abuse her discretion in permitting the Commonwealth to conduct this inquiry.
2. Motion for new trial. "Where a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). "[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ " Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge" (citation omitted). Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020).
The defendant argues that his trial counsel was constitutionally ineffective for failing to retain an expert to assist his defense in two ways: (1) to assist him prepare for cross-examination of the victim regarding her memory of the abuse and (2) to testify about memory formation in general, factors that may impact memory, and the unreliability of recovered memories as opposed to continuous memories. We agree with the judge that trial counsel was not ineffective for failing to retain an expert pretrial because the materials provided to him in pretrial discovery did not sufficiently put him on notice that issues relative to repressed and recovered memories were likely to arise at trial.
Nothing provided to trial counsel in pretrial discovery suggested that the victim had forgot about the abuse and later remembered it. Significantly, in the text exchange where the victim made her initial disclosure, she stated that she had a dream about the abuse but never insinuated that the dream triggered her memory of the abuse. Indeed, in the same exchange, the victim told her boyfriend that what happened in her dream "really wasn't a dream," that she "always" thought about the abuse, and that it affected her daily. We consider the failure to pursue a particular defense strategy at trial ineffective assistance only if "some other action would have better protected [the] defendant and was reasonably foreseeable as such before trial" (emphasis added). Commonwealth v. Drumgold, 423 Mass. 230, 262 (1996), quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). "The test is not to be made with the advantage of hindsight." Drumgold, supra.
Even assuming that the defendant could establish that trial counsel was ineffective for failing to retain an expert, the defendant has not demonstrated that doing so "would have accomplished something material for the defense." Commonwealth v. Weaver, 474 Mass. 787, 809 (2016). In his affidavit submitted with the defendant's motion for a new trial, Dr. Robert Tittmann, an adult psychiatrist, averred that memories that are repressed but later recovered are unreliable as compared to continuous memories, and that this is especially so when the memories are recovered in a dream. According to Dr. Tittmann, the direct and cross-examination of the victim at trial failed to elucidate whether the victim's memories of the abuse "were forgotten and recovered, or were continuous," and further failed to specify the victim's "psychiatric condition at the time she began having these memories." Had he been consulted to assist trial counsel prepare for cross-examination, Dr. Tittmann averred that he would have helped trial counsel clarify how the victim "formed these memories and the circumstances in which she began to recall them."
Notwithstanding the fact that the victim characterized her memories of the abuse as "flashbacks," and never fully explained what she meant by the term flashbacks, she testified that, consistent with her text messages to her boyfriend, she remembered the abuse prior to her flashbacks. And, as noted, the victim's text messages to her boyfriend, which were admitted in evidence, resolved any question whether the victim's memory of the abuse was recovered in her dream. In light of this evidence, it is fairly certain that, had trial counsel consulted with an expert prior to trial, the expert-assisted cross-examination would have further confirmed that the victim's memories were continuous rather than recovered -- in a dream or otherwise -- which, according to Dr. Tittmann, would have bolstered their reliability. As a result, the defendant cannot demonstrate that expert consultation for cross-examination preparation would have materially benefited his defense.
Nor can the defendant prove that the introduction of expert testimony would have been material to his defense. To do so, he must demonstrate that the testimony would have been admissible. See Weaver, 474 Mass. at 809. However, as noted by the judge, most of the testimony proposed by Dr. Tittmann would not have been admissible at trial.
Dr. Tittmann stated in his affidavit that, if retained, he would have offered testimony regarding memory formation in general, the suggestive influences that can increase the likelihood that a memory is false, and the impact psychiatric conditions may have on memories. Additionally, he stated that he would have testified about the difference between continuous and recovered memories, the fallibility of the latter, and the considerations forensic and clinical psychiatrists use when assessing the reliability of sexual assault claims. The judge concluded that testimony concerning repressed and recovered memories would not have been relevant at trial because the evidence at trial did not raise a genuine issue about whether the victim's memories were recovered. Moreover, the judge concluded that because there was no evidence of the presence of any suggestive influences or known psychiatric condition that may have affected the victim's memory, testimony concerning those matters would have been similarly not relevant. Relevancy determinations are left in the "substantial discretion" of the trial judge, Commonwealth v. McCowen, 458 Mass. 461, 485 (2010), and we perceive no abuse of the judge's broad discretion here in concluding that such testimony would not have been admissible. Furthermore, testimony concerning the considerations psychiatrists use to assess the reliability of sexual assault allegations would "impermissibly intrude[ ] on the jury's province to assess the credibility of the witness," and accordingly would also not have been admissible. See Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 283 (2014), quoting Commonwealth v. Federico, 425 Mass. 844, 849 (1997).
The only proposed testimony remaining concerns memory formation in general. The judge concluded that, because the accuracy and reliability of the victim's memory of past events was the central issue at trial, Dr. Tittmann's proposed testimony regarding the general characteristics of memory formation, including the effect of trauma and how a person may construct convincing false memories that are sincerely believed, would have been admissible. Nevertheless, we agree with the judge that the defendant has failed to demonstrate that such testimony would likely have affected the outcome of the case. We accordingly discern no abuse of discretion in the judge's denial of the defendant's motion for a new trial.
Judgments affirmed.
Order denying motion for new trial affirmed.