Opinion
09-P-81
03-27-2012
COMMONWEALTH v. DEVIN BENDERS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the defendant's consolidated appeal from convictions, following a jury trial in the Superior Court, of inducing a minor into prostitution and of deriving support from or sharing the earnings of a prostitute, in violation of G. L. c. 272, § 4A, and G. L. c. 272, § 7, respectively, as well as from the trial judge's denial of his motion for new trial. The defendant specifically contends that the judge abused his discretion in denying the motion for new trial where (1) trial counsel was ineffective for failing to identify and investigate a viable defense of lack of criminal responsibility, and (2) counsel failed to move to suppress statements of the defendant made to the victim and a witness, or, in the alternative, the judge erred by failing to order their suppression, sua sponte. We affirm.
We review a judge's decision denying a motion for new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), 'to determine whether there has been a significant error of law or other abuse of discretion.' Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Where, as here, the motion judge was also the trial judge, his rulings are afforded 'special deference.' Commonwealth v. Murphy, 442 Mass. 485, 499 (2004).
In order to show ineffective assistance of counsel, both prongs of the Saferian test must be met: '[1] whether 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, [2] if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The second prong of the Saferian test requires the defendant to demonstrate that 'better work might have accomplished something material for the defense.' Commonwealth v. Pope, 392 Mass. 493, 499 (1984), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). We equate 'depriv[ing] the defendant of an otherwise available, substantial ground of defence' with 'a substantial risk of a miscarriage of justice.' Commonwealth v. Delong, 72 Mass. App. Ct. 42, 47 (2008), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
Even assuming that the defendant has made a sufficient showing of the first prong of Saferian, which remains unclear on this record, the defendant has failed to prove the necessary prejudice required by the second prong. The record contains ample evidence to suggest the defendant was not in fact deprived of a substantial ground of defense, as the fact that trial counsel did not investigate the viability of a hypothetical insanity defense has not been sufficiently shown to have likely influenced the jury's decision. See Commonwealth v. Walker, 443 Mass. 213, 226 (2005) ('Even if counsel should have investigated a mental health defense, his failure to do so did not 'likely deprive[] the defendant of an otherwise available, substantial ground of defence.' . . . Although a mental health defense and self-defense would not necessarily have been irreconcilable, the mental health defense was, in the judge's view, weak, and likely would have had an adverse impact on the claim of self-defense') (citations and footnote omitted).
See Commonwealth v. Milton, 49 Mass. App. Ct. 552, 560 (2000) ('[T]he issue is whether counsel should have investigated an insanity defense before advising the defendant to plead guilty, and not counsel's failure to present an insanity defense at trial').
The reasoning articulated in Walker applies to the instant case with equal force. For substantially the reasons expressed by the judge in his comprehensive memorandum of decision, we agree that the defense offered by trial counsel, i.e., that the Commonwealth had failed to prove its case beyond a reasonable doubt, presented the better, stronger theory of defense. Thus, the defendant has failed to show that the motion judge abused his discretion in concluding that the defendant had received effective assistance of counsel.
The judge concluded, 'Even if we assume that trial counsel's failure to investigate a lack of criminal responsibility defense was an error rising to the level of incompetence, the claim of ineffective assistance of counsel is still unsuccessful in this case, because that error is unlikely to have changed the jury's conclusion. To prove ineffective assistance of counsel, the court requires that the defendant affirmatively show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citations omitted.)
To the extent the defendant claims that the trial judge erred by failing to suppress, sua sponte, the admission of statements of the defendant made to the victim and to another civilian with whom he lived prior to his arrest, during the relevant time of the offense, we disagree. As explained by the case of Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002), 'a judge is obliged sua sponte to conduct a voir dire only where there is evidence of a substantial claim of involuntariness, . . . and where voluntariness is a live issue at the trial.' Ibid., citing Commonwealth v. Tavares, 385 Mass. 140, 150, cert. denied, 457 U.S. 1137 (1982). A legal issue such as involuntariness constitutes a 'live issue' when 'substantial evidence of involuntariness is produced.' Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007). Here, it is undisputed that trial counsel was wholly unaware that the defendant's mental health required any extra attention prior to a conversation with the defendant's sister on the eve of trial. The defendant has failed to highlight any evidence, substantial or otherwise, to the contrary. As such, there was insufficient evidence to require such an inquiry in this case.
Similarly, there is no merit to the defendant's claim that trial counsel was ineffective for failing to object to the admission of these statements or by failing to seek their suppression, as both steps would, on this record, clearly have been futile. See Commonwealth v. Cutts, 444 Mass. 821, 830 (2005).
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Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Brown & Fecteau, JJ.),