Opinion
No. 13–P–883.
06-24-2016
COMMONWEALTH v. Joseph SACRAMONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Joseph Sacramone, was convicted by a jury of assault with intent to rape his eighteen month old daughter. In this consolidated appeal, the defendant contends that the trial judge, who was also the motion judge, erred in denying his motion for new trial because defense counsel deprived him of the opportunity to testify in his own defense and failed to adequately cross-examine the child's mother. He further contends that the judge erred in ruling that the prosecutor's closing argument was proper, and that the defendant could not argue to the jury that there was a lack of evidence concerning police investigation of the case. We affirm.
Ineffective assistance. a. Right to testify. Relying on Wainright v. Sykes, 433 U.S. 72, 93 n. 1 (1977) (Burger, C.J., concurring), and Commonwealth v. Freeman, 29 Mass.App.Ct. 635, 640–642 (1990), the defendant contends that the “decision whether to testify is to be made personally by the defendant in consultation with his counsel.” He maintains that counsel's decision to rest his case without the defendant's testimony contravened the defendant's expressed desires and thus violated the defendant's right to testify in his own defense.
“It is the defendant's burden to prove that he did not waive this right knowingly and intelligently.” Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011). The flaw in the defendant's argument is that the judge expressly found that counsel and the defendant had fully discussed whether he would testify before trial, and that the decision would depend in part on the effectiveness of the cross-examination of the child's mother. The judge further found that the defendant was willing to testify, if necessary, but did not tell his counsel that he wanted to testify irrespective of the effectiveness of cross-examination of the Commonwealth's witnesses. Finally, as the judge noted, there was a brief recess after the defense rested, and the defendant was present thereafter during a charge conference in which counsel agreed to the instruction regarding the defendant's failure to testify. See Commonwealth v. Smith, 456 Mass. 476, 481 (2010). There was no error in light of these factual findings.
At oral argument, the defendant asserted that defense counsel should have asked the defendant again before he rested. While this may be best practice, it does not rise to the level of a constitutional violation in this case.
“This court finds that the defendant was well aware of his right to testify and expressed the desire to take the stand, but did not specifically communicate to [defense counsel] that he wanted to testify regardless of [the] mother's testimony. Furthermore he never voiced his desire to take the stand during the trial proceedings.” Defense counsel testified at the motion for new trial hearing that the defendant did not tell him either before or during trial that he wanted to testify regardless, and that if he had, counsel would have had him testify.
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The defendant also maintains that counsel was ineffective because his decision to rest his case without calling the defendant to testify was “manifestly unreasonable when made.” Commonwealth v.. Kolenovic, 471 Mass. 664, 674 (2015) (quotation omitted). The defendant's theory at trial was that the allegations of abuse had been made up in order to obtain leverage in a custody dispute. On cross-examination, experienced defense counsel was able to elicit evidence from the child's mother that she delayed in reporting the incident to the police for a month or so after the events in question, and only reported the incident after there was an argument between her and the defendant regarding visitation with the child. The mother also acknowledged that she had allowed the defendant to spend unsupervised time with the child after the incident.
The defendant now asserts that his testimony was necessary to an acquittal, because he would have been able to add persuasive detail and additional motive—that is, his claim that he told the mother on the day of the dispute over visitation that they would not be resuming a relationship. However, the decision whether the defendant should testify is a strategic decision that must be evaluated in the context of trial as it unfolded, not in hindsight. Id. at 674. Defense counsel got what he hoped to get on cross-examination. The decision not to call the defendant was “rational and entirely consistent with what lawyers of ordinary training and skill in the criminal law would deem to be competent.” Id. at 675 (quotation omitted). See Jenkins, supra at 808–809. “[T]hat the defendant was convicted does not mean that the strategy was unreasonable.” Smith, supra at 482.
b. Impeachment. In general, a failure to impeach, standing alone, does not constitute ineffective assistance. Id. at 485. The additional areas of impeachment suggested by the defendant were not so compelling as to make the decision to forego them manifestly unreasonable. See Jenkins, supra at 805–808. Impeachment is “fraught with a host of strategic considerations,” and any claim that something better would have been accomplished for the defense was speculative at best. Smith, supra at 485 (quotation omitted).
Closing arguments. a. Defendant's closing argument. The defendant asserts that he was deprived of a defense because he was not permitted to argue that the jury should consider a lack of police investigation of the case. The judge barred this argument because, among other reasons, it lacked proper foundation in the record. See Mass. G. Evid. § 1113(b)(2) (2016); Commonwealth v. Pettie, 363 Mass. 836, 840 (1973). There was no error.
b. Prosecutor's closing argument. In summation, the prosecutor argued:
“I would suggest that when you consider the evidence, when you review the evidence and you look at those defense witnesses, even if you believe every single one of them, did they really tell you anything that's relevant to this case? Did they tell you anything about what happened that night? The answer is no. [The child's mother] told you exactly what happened that night. She told you specifically, she told you in detail. Based on the evidence you heard from her, you have all the evidence you need to convict [the defendant] of the indictment that's before you.”
The defendant and the mother were the only two adults present in the home on the night in question. No one other than the mother and the defendant could have told the jury what happened that night. We can appreciate the defendant's contention that the emphasized portions of the prosecutor's closing were “reasonably susceptible of being interpreted as a comment on the defendant's failure to take the stand,” and were improper. Commonwealth v. Botelho, 87 Mass.App.Ct. 846, 853 (2015), quoting from Commonwealth v. Pena, 455 Mass. 1, 19 (2009).
However, even if there was error, there was no substantial risk of a miscarriage of justice. “[T]he judge twice informed the jury—once [at the outset of the trial] and once after the closings—that closing arguments did not constitute evidence, and [she] emphasized ... that the Commonwealth carried the burden of proving the entire case.” Commonwealth v. Johnson, 463 Mass. 95, 114 (2012). The judge also instructed the jury that the defendant was presumed innocent, and that “[t]he law does not require the defendant to prove his innocence, or even produce any evidence.” She explained that “[t]he defendant ... has an absolute right not to testify,” that “[i]t is not up to the defendant to prove that he is innocent.” “These instructions, to which we presume the jury adhered, see Commonwealth v. Amirault, [404 Mass. 221, 240 (1989) ], effectively neutralized any prejudice produced by the prosecutor's rhetorical question, and surely mitigated any suggestion of burden shifting that may have arisen elsewhere in the closing argument. See Commonwealth v. Tu Trinh, [458 Mass. 776, 788 (2011) ]; Commonwealth v. Miranda, [458 Mass. 100, 117 (2010) ]; Commonwealth v. Montez, 450 Mass. 736, 747–748 (2008).” Johnson, supra.
Judgment affirmed.
Order denying motion for new trial affirmed.