Opinion
15-P-1664
02-24-2017
COMMONWEALTH v. Angel AVILES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of rape of a child and indecent assault and battery on a child under the age of fourteen. His convictions were affirmed by this court, Commonwealth v. Aviles , 77 Mass. App. Ct. 389 (2010), and by the Supreme Judicial Court, Commonwealth v. Aviles , 461 Mass. 60 (2011). On April 13, 2015, he filed a pro se motion for a new trial which was denied by the trial judge without an evidentiary hearing. We affirm.
The defendant also filed a writ of habeas corpus in the United States District Court for the District of Massachusetts, which was denied. Aviles v. Dickhaut , U.S. Dist. Ct., No. 12-40017-FDS (D. Mass. July 10, 2013).
The defendant's new trial motion was based on two grounds: first, he alleged that he was denied effective assistance of counsel at trial and on appeal; and second, he claimed that he did not receive a fair trial because the grand and petit jurors were not composed of a fair cross section of the community as required by the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. The judge ruled that the defendant's claims based on ineffective assistance of trial counsel and the composition of the jurors had been waived by the defendant's failure to raise them in his direct appeal. As regards the defendant's argument that his appellate counsel provided ineffective assistance, the judge concluded that the claim, although not waived, was baseless.
1. Ineffective assistance of trial counsel . The defendant claims ineffective assistance of counsel because trial counsel allegedly failed to (1) uncover "overwhelming evidence" (2) present evidence of wrongdoing by government agents and (3) file a motion for a required finding of not guilty. He also claims that his counsel was ineffective when he failed to object to (1) "extraneous influences" on the jury (2) the admission of perjured testimony in evidence, and (3) unfair jury instructions. The judge ruled that these arguments had been waived by the defendant's failure to raise them in his direct appeal and, as a result, she did not specifically address the defendant's allegations.
The judge may have been correct in denying the new trial motion on the ground of waiver because the defendant was represented by new counsel who could have raised the claims on appeal. See Commonwealth v. White , 53 Mass. App. Ct. 142, 142-143 (2001). It is also true, however, that our cases express a preference for bringing ineffective assistance of counsel claims in a motion for a new trial. Commonwealth v. Zinser , 446 Mass. 807, 808 n.1 (2006) ( "[T]he preferred route ... for raising claims of ineffective assistance is not through direct appeal but by a motion in the trial court"). We need not resolve the question whether the claims are waived because, even if they are not, the defendant has not met his burden under Commonwealth v. Saferian , 366 Mass. 89, 96 (1974) (To establish ineffective assistance of counsel the defendant must show "[1] 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 that is found, then, typically, [2] whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.").
Here, most, if not all, of the defendant's claims consist of unsupported assertions which are not explained. For example, the defendant has neither described the evidence trial counsel failed to introduce nor has he identified any wrongdoing on the part of the Commonwealth. There is no discussion of the extraneous influences on the jury and the defendant does not identify the allegedly perjured testimony or the instruction he claims was erroneous. More fundamentally, our review of the record does not disclose any error, mistake, or inattention on the part of trial counsel. To the contrary, it is apparent that the defendant's best defense lay in attacking the victim's credibility. Trial counsel pursued this strategy, which was a reasonable one, vigorously. See Commonwealth v. Kebreau , 454 Mass. 287, 300 (2009) (because the "case turned on the [two victims'] credibility ... attacking the [victim's] credibility was not a manifestly unreasonable trial strategy, even where [it] ultimately resulted in the admission of some evidence that the jury might otherwise not have heard"); Commonwealth v. McCormick , 48 Mass. App. Ct. 106, 112-113 (1999) ("defense counsel's decision to" inquire into hearsay statements "in an effort to undercut the complainant's credibility ... fell well within the realm of reasonable trial strategy and does not constitute ineffective assistance").
As to the defendant's claim that trial counsel failed to file a motion for a required finding of not guilty, the record indicates otherwise.
2. Ineffective assistance of appellate counsel . For the most part, the defendant's claim that appellate counsel provided ineffective assistance rests on the allegation that appellate counsel should have pursued claims relating to the alleged ineffectiveness of trial counsel. Because there was no showing of ineffective assistance by trial counsel, appellate counsel was not remiss for failing to raise the issue in the appeal. As to the defendant's other claims, that appellate counsel failed to include precedent in his brief, the judge correctly found the opposite to be true. As the judge observed, "Appellate counsel's briefs cited relevant case law, statutory provisions, and other legal authorities." There was no error or abuse of discretion in denying the defendant's new trial motion on the ground of appellate counsel's performance.
3. Fair cross-section of jurors . The judge rejected the defendant's claim that he is entitled to a new trial because neither the grand jury nor the trial jury represented a fair cross-section of the community. The judge was correct to deny the new trial motion on this ground. As the judge observed, when a defendant does not file a "pretrial motion challenging the petit jury selection process and no affidavit, memorandum of law, or other evidence in support of [a] motion to dismiss, based on the grand jury selection procedure, he may not seek a new trial based on these claims." Commonwealth v. Pope , 392 Mass. 493, 498 (1984). Moreover, the defendant has failed to make even a prima facie showing that any particular group in the population, including African Americans, were underrepresented. This failure precludes any grant of relief. See Commonwealth v. Comita , 441 Mass. 86 93-94 (2004) ("In posttrial proceedings, the defendant bears the burden to rebut the presumption that [he] had a fair trial.").
The defendant has only provided his own assertions, at least one of which is blatantly incorrect. The defendant claimed that every person connected to the trial in an official capacity, including the judge was "white." However, as the judge herself noted, she is African-American.
--------
Lastly, the judge did not err in deciding the new trial motion without conducting an evidentiary hearing. Mass.R. Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001), expressly empowers a judge to "rule on the issue or issues presented by [a] motion [for a new trial] on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits." Absent extraordinary circumstances, which do not exist here, we defer to the discretion of the trial judge on the question of whether an evidentiary hearing is required in any particular case. See Commonwealth v. Licata , 412 Mass. 654, 660 (1992).
Order denying motion for a new trial affirmed .