Opinion
16-P-1457
07-27-2017
COMMONWEALTH v. Javier REYES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Javier Reyes, was found guilty of rape of a child, assault with intent to rape a child, and indecent assault and battery on a child under the age of fourteen. The defendant filed a motion for a new trial contending that he received ineffective assistance of counsel in failing to elicit testimony that the victim saw ghosts and had accused a ghost of rape, and for failing to call a defense expert on child sexual assault. The motion judge, who was also the trial judge, denied the defendant's motion after an evidentiary hearing. This is a consolidated appeal from the judgments and the order denying his new trial motion. We affirm.
He was found not guilty of two additional counts of indecent assault and battery.
Ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the defendant must show that "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 so, "whether it has likely deprived the defendant of an otherwise available substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). After an evidentiary hearing, the judge denied the defendant's motion. Accordingly, we review for "a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
At the motion hearing, the judge heard testimony from the defendant's trial counsel and from a defense expert on child sexual assault, Dr. Joseph Begany. The judge also reviewed affidavits from trial counsel, the defendant, and the defendant's mother. "The credibility, weight, and impact of the affidavits in support of the motion are entirely within the judge's discretion. [She] is not required to believe them even if they are undisputed." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997). Furthermore, we give special deference when, as here, the motion judge was also the trial judge. See Grace, supra; Commonwealth v. Rosario, 460 Mass. 181, 195 (2011).
The defendant provided four additional documents in support of his claim: (1) a statement made by the victim to the prosecution team in preparation for trial; (2) statements made by the defendant and the defendant's sister to Boston police Detective Lanita Cullinane; (3) statements about ghosts the victim made to Raceel Jarudi Fitek, a mental health counselor at her school, after the sexual abuse had been reported; and (4) the grand jury testimony of the defendant's sister that the victim blamed the sexual abuse on a ghost.
a. Impeachment evidence. "Generally, failure to impeach a witness does not amount to ineffective assistance of counsel." Commonwealth v. Fisher, 433 Mass. 340, 357 (2001), citing Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). "[I]mpeachment of a witness is, by its very nature, fraught with a host of strategic considerations, to which we will ... show deference." Ibid. "[A]bsent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion." Ibid. Here, trial counsel did not elicit testimony that the child victim saw ghosts and had accused a ghost of rape but rather elected to focus his cross-examination on the various inconsistencies in the victim's testimony. While counsel testified at the motion hearing that, in hindsight, he would have asked the victim a few questions about ghosts, in our view, the tactic he employed at trial was not "manifestly unreasonable" when made. Commonwealth v. Duran, 435 Mass. 97, 106 (2001) ("[C]ounsel's failure to attempt to use every conceivable method to impeach ... was not manifestly unreasonable"). The victim was a young child and two experts, including the defense expert that had testified at the motion hearing, agreed that ghost sightings, or, as commonly known "imaginary friends," are not a unique occurrence for a child the victim's age. Moreover, both experts also indicated that trauma, such as sexual abuse, could spur a child to conjure these imaginary images. In this case, the claims that the child interacted with ghosts preceded her report of rape by the defendant; however, it was only after the rape that the ghosts became aggressive towards the child. Such evidence would have served to bolster the Commonwealth's theory that a rape had occurred and undercut the defendant's theory that she was lying. This is particularly true here, where the child claimed to have enjoyed a similar, friendly relationship with the defendant up until the rape.
At trial, counsel introduced evidence that the victim had recanted a previous allegation of sexual abuse, that the victim's accounts of abuse were inconsistent, and that the victim wrote affectionate letters to the defendant after disclosing the sexual abuse.
b. Failure to call an expert witness. Likewise, counsel's failure to call his own expert on child psychology did not render his performance ineffective. "Only ‘strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent’ are manifestly unreasonable." Commonwealth v. Pillai, 445 Mass. 175, 186-187 (2005), quoting from Commonwealth v. Levia, 385 Mass. 345, 353-354 (1982). "In cases where tactical or strategic decisions of the defendant's counsel are at issue, we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful." Commonwealth v. Hudson, 446 Mass. 709, 716 (2006), quoting from Commonwealth v. White, 409 Mass. 266, 272 (1991).
After contacting multiple experts, including Dr. Begany, to counter the Commonwealth's expert testimony that it is not uncommon for children to recant accusations of sexual assault, counsel elected to forgo the use of a defense expert. This election was not manifestly unreasonable. See Commonwealth v. Bois, 476 Mass. 15, 23-24 (2016) (counsel's decision to not introduce medical records not manifestly unreasonable where contemplated introduction had potential to undercut defense).
Here, even Dr. Begany agreed with the Commonwealth's expert that the victim's ghost sightings are not unusual, and are often spurred by trauma such as sexual assault. Such a concession by a defense witness on critical evidence in the Commonwealth's case would have lent credence to the Commonwealth's theory of the case and, again, undercut the defense theory. In the circumstances, counsel made a prudent decision to avoid presenting such a concession to the jury. As such, counsel did not render ineffective assistance and the judge properly denied the defendant's new trial motion. See ibid. Finally, the defendant raises identical challenges on his direct appeal, and we affirm the judgments on the same basis.
The defendant's challenge that the judge's findings from the motion hearing are erroneous and unsupported by the record lacks merit and requires no further discussion.
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Judgments affirmed.
Order denying motion for new trial affirmed.