Opinion
13-P-1437
11-17-2015
COMMONWEALTH v. COREY A. SLAVEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On April 2, 2013, following a jury-waived trial, the defendant was found guilty of multiple sex offenses involving three separate victims. On March 7, 2014, he filed a motion for new trial. The motion judge, who was the trial judge, denied the motion without a hearing. Before us is the defendant's consolidated appeal from the judgments and from the order denying his motion for new trial. We affirm.
Facts. The Commonwealth's evidence established the following facts at trial. Between 2001 and 2007, the defendant lived in New York. However, from the time he was five years old until he was twenty, he would stay with his older sister and her family in Falmouth during school vacations and holidays. The defendant also lived with his sister and her family for approximately six to seven months beginning in December of 2007.
During the summer of 2001, when the defendant's niece, S.B., was ten years old, there were numerous occasions when the defendant touched her vagina and her "butt," and forced her to touch his penis. In the summer of 2002, when the defendant's other niece, A.B., was nine years old, the defendant began assaulting her in the same way. When A.B. was twelve, the defendant made her watch pornography with him, and when she was thirteen, he forced her to perform oral sex on him. S.C. was a friend of A.B. When S.C. was sixteen years old, the defendant choked her, forced her to have intercourse, and threatened to harm her younger sister if she said anything.
Discussion. The defendant's appellate issues are limited to the claims of ineffective assistance of counsel that he asserted in his motion for new trial. We review the judge's order denying that motion for error of law or abuse of discretion. Commonwealth v. Forte, 469 Mass. 469, 488 (2014).
1. Failure to file motion to suppress. The defendant claims that his trial counsel was ineffective for failing to move to suppress statements made during his February 8, 2011, recorded interview with Officer Clifford Harris of the Falmouth police department. We disagree. The judge was well entitled to conclude in his discretion that the defendant did not make the requisite showings that the motion would have been successful and that the failure to pursue the motion resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Hanson, 79 Mass. App. Ct. 233, 237-238 (2011).
The defendant's prior attorney had filed a motion to suppress alleging that the police delayed arraignment in order to elicit information from the defendant. The prior attorney later withdrew this motion. We discern no error or other abuse of discretion in the judge's determination that this was a reasonable tactical decision. See Commonwealth v. Casey, 442 Mass. 1, 6 (2004).
Contrary to the defendant's argument, counsel could not have demonstrated that the defendant did not waive his Miranda rights voluntarily. At booking, the defendant executed a Miranda waiver and, later, when he claimed not to understand the Miranda rights form, the officer slowly explained those rights again, and the defendant stated that he understood. The officer's repeated explanation, and the fact that the defendant had prior experience with the criminal justice system, support the judge's conclusion that the defendant's claim of involuntariness was devoid of merit. See Commonwealth v. Silva, 388 Mass. 495, 501 (1983).
Nor could counsel have succeeded on an argument that the defendant was misinformed about his right to counsel. Before commencing the recorded interview, Officer Harris told the defendant that he had the rights to be silent, to speak with an attorney before questioning, and to have an attorney present at the interview. The officer also told the defendant that if he could afford an attorney, he could contact one immediately, and that if he could not afford an attorney and wanted one, the officer would take him to be arraigned, at which point he would be appointed an attorney at public expense. The defendant ultimately did not invoke his right to counsel under the Fifth Amendment to the United States Constitution and elected to go ahead with the interview.
The officer gave a correct explanation of the defendant's rights, and the practicalities of obtaining public counsel. See Duckworth v. Eagan, 492 U.S. 195, 202-203 (1989). He also emphasized that the defendant did not have to speak with the police. The defendant's assumption that he had the right to the appointment of public counsel prior to arraignment is unfounded. Where the defendant had yet to be charged, his right to counsel under the Sixth Amendment to the United States Constitution had yet to attach. See Commonwealth v. Torres, 442 Mass. 554, 570-571 (2004).
2. Failure to call witness. The defense at trial was that the defendant could not have committed the alleged acts because he was in summer school in New York during the timeframes alleged by the victims. To develop this defense, trial counsel introduced the defendant's high school transcripts, and his summer 2004 report card, and the defendant testified about codes in the transcripts referring to summer school and the Regents Examination. The defendant now claims that counsel was ineffective in failing to call another witness to explain the transcripts and the summer school schedule.
When an ineffective assistance claim is based on the failure to call a witness, the defendant must show that the testimony of the prospective witness would have contributed substantially to the defense. Commonwealth v. Ortega, 441 Mass. 170, 178-179 (2004). This the defendant has not done. The defendant's motion for new trial was unaccompanied by an affidavit from any potential witness; on that basis alone, the judge could reject the claim. Furthermore, as the judge explained in his decision on the defendant's motion, attendance at a summer school did not preclude the defendant from committing the offenses at other points during the vacations at issue.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 17, 2015.