Opinion
18-P-1069
12-09-2019
COMMONWEALTH v. William F. ANDRADE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in 2013, the defendant was convicted of three counts of rape of a child, and five counts of indecent assault and battery on a child under fourteen years of age. After a jury-waived trial, the judge found the defendant guilty of being a subsequent offender. On direct appeal, this court affirmed the defendant's convictions, Commonwealth v. Andrade, 89 Mass. App. Ct. 1127 (2016), and the Supreme Judicial Court denied further appellate review. Commonwealth v. Andrade, 475 Mass. 1103 (2016).
Two of these were convictions as lesser included offenses on the indictments charging rape of a child.
In May of 2018, the defendant filed a motion for new trial. In June of 2018, the trial judge denied that motion without an evidentiary hearing. In August of 2018, the judge allowed so much of the defendant's motion to reconsider which requested an evidentiary hearing. However, the judge noted that if trial counsel filed an affidavit before the date of the scheduled evidentiary hearing, the need for that hearing might be obviated. Counsel filed his affidavit under seal. After reviewing counsel's affidavit in camera, the judge again denied the motion for new trial and the request for an evidentiary hearing. The defendant appeals from the order denying his motion. We affirm.
The defendant claims that the judge erred in denying his motion for new trial without an evidentiary hearing because his trial counsel provided incorrect legal advice concerning the admissibility of a prior child rape conviction, thus rendering ineffective assistance, causing him to waive his right to testify in his own defense. We disagree.
We review the denial of a motion for new trial for " ‘a significant error of law or other abuse of discretion,’ granting ‘special deference’ to the rulings of a motion judge who, like the judge here, also presided at trial." Commonwealth v. Bonnett, 472 Mass. 827, 833 (2015), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). Furthermore, "[t]he decision to hold an evidentiary hearing on a motion for a new trial is ‘left largely to the sound discretion of the judge.’ " Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015), quoting Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). "Indeed, [ Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1502 (2001)], encourages the denial of a motion for new trial on the papers, without hearing, where no substantial issue is raised." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012).
The defendant carries the burden to demonstrate that his counsel was ineffective. See Commonwealth v. Gorham, 472 Mass. 112, 118 (2015). "A strategic decision by an attorney, however, constitutes error ‘only if it was manifestly unreasonable when made.’ " Commonwealth v. Smith, 456 Mass. 476, 482 (2010), quoting Commonwealth v. Coonan, 428 Mass. 823, 827 (1999). Here, the record belies the defendant's claim, and instead shows that the defendant made a knowing and voluntary decision not to testify.
While the defendant was present in the court room, the parties discussed the admissibility of the defendant's prior conviction of rape of a child for impeachment purposes should the defendant testify. The judge determined that the 1993 conviction was inadmissible because it was more than ten years old; the prosecutor agreed and did not provide authority to the contrary. The judge further stated that the prejudicial impact of the conviction would outweigh its probative effect given the similarity of the offense to the case being tried.
Although not required, see Commonwealth v. Glacken, 451 Mass. 163, 170 (2008), the judge conducted a colloquy with the defendant to ascertain his understanding of his right to testify. The defendant, who had some college education and was not under the influence of alcohol or drugs, understood that: he had a constitutional right to testify or not to testify; the decision to testify was his alone; and he could change his mind on not testifying after he rested his case. He also acknowledged that he had a "substantial" discussion on the matter with his counsel, and that counsel had answered all his questions to make his choice informed. The defendant had no questions for the judge.
Given the on the record discussion of the inadmissibility of the defendant's prior conviction, the defendant's lack of questions for the judge, and the numerous reasons (provided in counsel's sealed affidavit) why counsel advised against the defendant testifying, there is no merit to the defendant's claim that he received ineffective assistance of counsel. At best, the defendant was discouraged from testifying by experienced counsel, which does not justify granting him a new trial. See Commonwealth v. Cook, 438 Mass. 766, 776-777 (2003). In the end, the defendant understood that it was his decision to testify -- a decision that was informed and voluntary, as supported by the record.
Given the result we reach, and the special deference we owe to the trial judge, the defendant has failed to show that it was an abuse of discretion not to hold an evidentiary hearing on the motion for new trial. See Stewart, 383 Mass. at 257.
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Order denying motion for new trial affirmed.