Opinion
13-P-1505
04-11-2016
COMMONWEALTH v. KENNETH R. BLACK.
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
The defendant, Kenneth R. Black, appeals from multiple convictions of aggravated rape of a child, G. L. c. 265, § 23A; rape and abuse of a child, G. L. c. 265, § 23; and indecent assault and battery of a child, G. L. c. 265, § 13B; and from the denial of his motion for a new trial. We affirm.
1. Ineffective assistance of counsel. The defendant alleged in his motion for a new trial that defense counsel provided ineffective assistance at trial by failing to cross-examine the victim, his stepdaughter Jane, with prior inconsistent statements she made to the police and to the grand jury; by failing to request a missing witness instruction; and by failing to object to the prosecutor's closing argument. The trial judge denied the motion. We conclude that the judge did not abuse his considerable discretion.
A pseudonym.
a. Prior inconsistent statements. Jane testified that the defendant sexually assaulted her for several years starting when she was ten years old, but she did not fully comprehend that she was being abused until, at the age of fifteen, she read the book I Know Why the Caged Bird Sings by Maya Angelou. The defense was that Jane fabricated the allegations of sexual abuse for the purpose of escaping from her stepfather's stern discipline. Defense counsel thoroughly cross-examined Jane for three and one-half hours, exposing substantial gaps in her memory, exploiting her lack of clarity concerning the details of the defendant's conduct, and suggesting that Jane got the idea of claiming sexual abuse from the book. Defense counsel also established Jane's dislike of her stepfather and her desire to live with her biological father instead, a result that Jane achieved when she reported that the defendant sexually abused her. Defense counsel's opening statement and closing argument played dramatically on these themes.
In his motion, the defendant claimed that trial counsel was ineffective for failing to cross-examine Jane further with statements she made to the police and grand jury that differed somewhat from her testimony on direct examination regarding exactly how and which body parts the defendant used to penetrate her vagina.
We review the denial of a motion for a new trial for error of law or abuse of discretion. See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 635 (2001); Commonwealth v. Deschaine, 77 Mass. App. Ct. 506, 512 (2010). Where the motion judge was also the trial judge, we accord heightened deference to the judge's disposition of a motion for a new trial. Ibid. With respect to claims of ineffective assistance of trial counsel, "appellate courts accord substantial deference to the trial judge's favorable evaluation of a trial counsel's performance." Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 493 (1998).
"In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Bart B., 424 Mass. 911, 916 (1997). "Furthermore, absent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion." Commonwealth v. Garvin, 456 Mass. 778, 792 (2010) (quotation omitted).
Impeachment of a witness is "fraught with a host of strategic considerations," ibid., and cross-examining a young victim in a sexual assault case is extremely sensitive business. Counsel must walk a delicate line to challenge the victim's veracity without being perceived by the jury as bullying a vulnerable victim. Defense counsel is entitled to wide discretion in making tactical choices in this regard, and we agree with the judge, who saw the cross-examination first hand, that counsel's performance did not fall anywhere below that of an ordinary fallible lawyer. Although trial counsel refused to provide an affidavit to support the defendant's motion, it is apparent that counsel was aware of Jane's prior inconsistent statements, but made a conscious decision not to delve too deeply into the minute details of how the abuse occurred, instead opting to demonstrate the abuse did not occur at all. "Here, the judge did not err in concluding that trial counsel made reasonable tactical decisions that should not be second-guessed and that, in any event, the verdict would not have been altered." Ibid.
For example, defense counsel did confront Jane with a prior inconsistent statement contained in an April 5, 2011, police report regarding how old she claimed she was when the abuse began.
b. Missing witness instruction. Trial counsel was not ineffective for failing to seek a missing witness instruction based on the Commonwealth's failure to call Jane's younger brother as a witness. Nothing in the record suggests that Jane's brother could "be expected to give testimony of distinct importance to the case." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007) (quotation omitted). Even if he could, the Commonwealth could readily offer a "logical or tactical explanation" for its decision not to place the victim's younger brother on the witness stand. See Mass. G. Evid. § 1111(b)(4) (2015); Commonwealth v. Pena, 455 Mass. 1, 16-17 (2009). The judge did not err in finding that an instruction would not have been warranted and that counsel was not ineffective for failing to request it.
c. Closing argument. Because defense counsel did not object to the aspects of the prosecutor's closing argument that the defendant challenges on appeal, we review only to determine whether the prosecutor's comments created a substantial risk of a miscarriage of justice; the same standard applies when the claims are couched as instances of ineffective assistance based on counsel's failure to object. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002); Commonwealth v. Carroll, 439 Mass. 547, 556 (2003). Largely for the reasons given by the judge in his memorandum and order denying the new trial motion, we do not discern any such risk.
i. Appeal to sympathy. We detect no impropriety in the prosecutor's using the photograph of the victim, which had been admitted as an exhibit, and commenting, "[t]his little girl, nine, ten years old, she didn't even know it was wrong for her step-father to put his penis in her vagina." The prosecutor made this statement in the context of explaining why Jane may have been unclear about some of the details of what had occurred and why she did not report the abuse sooner. Jane had specifically testified, when asked why she did not say anything to her stepfather, "I was pretty little. I didn't really know it was wrong."
We view the prosecutor's argument as proper commentary on the evidence, not an appeal to sympathy or emotions. See Commonwealth v. Young, 461 Mass. 198, 204 (2012). Moreover, the judge specifically instructed the jurors not to be influenced by emotion or sympathy. We detect no error, let alone any risk of a miscarriage of justice.
ii. Vouching. The prosecutor's statement that "we knew what he was doing down there" was not intended to suggest that the prosecutor had personal knowledge of additional facts supporting the defendant's guilt, nor do we think the jury would have understood it that way. In context, the prosecutor used "we" as rhetorical device suggesting the inference the jurors could draw from the evidence. See Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999). As the judge aptly noted, defense counsel made extensive use of the same rhetorical device in her closing argument.
iii. Witness credibility. The defendant challenges aspects of the prosecutor's closing argument concerning both Jane's and the defendant's motivations for testifying. "A prosecutor may marshal the evidence in closing argument, and, in doing so, may urge the jury to believe the government witnesses and disbelieve those testifying for the defendant." Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). Moreover, a prosecutor may argue that a witness had no motive to lie in response to an attack on the witness's credibility. Commonwealth v. Leach, 73 Mass. App. Ct. 758, 767 n.10 (2009).
Here, the prosecutor methodically repeated the "intimate details" of Jane's testimony, which was entirely proper. The prosecutor suggested that Jane could have fabricated a simpler story and did not have had to "subject[] herself to five hours of cross-examination about the details of hundreds of rapes . . . if her goal was to lie about this and to get out of the house." Stating that "[t]his case comes down to your assessment of the credibility of the two witnesses," the prosecutor then asked and answered a rhetorical question about Jane's motivation. Turning to the defendant's credibility, the prosecutor asked, "On the other hand, what is the Defendant's motive, somebody who stands accused of eighteen counts of child rape?"
"What possible, reasonable motive could a seventeen year old girl have for coming in here and for over two days telling fourteen complete strangers the worst and most uncomfortable details of sexual assaults over years [and] hundreds of times? Is that really enough motivation to move to Puerto Rico or get out from being under the thumb of a disciplinarian when in fact the ground rules were pretty common[?]"
In his memorandum of decision, the judge concluded that the prosecutor's question about Jane's motivation was improper, that counsel should have objected, and that he should have given a curative instruction even in the absence of any objection. To be sure, "[a] prosecutor may not . . . suggest that a victim is inherently reliable merely because [she] subjected [herself] to the rigors of appearing in court." Leach, supra. While a prosecutor may not equate a victim testifying in court with being truthful, "a prosecutor acts properly in inviting the jury to consider whether the victim has a motive to lie, and identifying evidence that demonstrates that the victim's testimony is accurate and reliable." Commonwealth v. Polk, 462 Mass. 23, 40 (2012). Taken in the context of the argument as a whole, we consider the prosecutor's comment to be an evidence-based argument regarding the credibility of the Commonwealth's central witness. We agree with the judge's ultimate determination that any error did not create a risk of a miscarriage of justice.
Finally, we do not perceive the prosecutor's comment on the defendant's motivation for testifying to shift the burden to him or to otherwise encroach on his constitutional rights. See Commonwealth v. Deloney, 59 Mass., App. Ct. 47, 52 (2003). "The defendant testified, thereby subjecting that testimony to fair comment as to its credibility." Ibid.
2. Defendant's statements. At a hearing on the defendant's motion in limine, the judge made a preliminary ruling that the defendant's statements to Jane not to say anything to anybody would be admissible as statements of a party, reflective of consciousness of guilt, and relevant to explain Jane's delay in coming forward. At trial, Jane testified, over objection, that the defendant told her on two occasions "not to tell anyone" because it would ruin his reputation, "his family would not love him anymore," and that he would kill himself "if he ever heard the cops coming for him." The defendant argues that his statements were not admissible on any of the grounds that the judge cited. For the first time on appeal, the defendant also claims that the statements were not admissible as an admission by the defendant because the judge did not make a preliminary finding that the defendant made the statement and did not instruct the jury that they also had to make an independent finding before considering the statement. See Commonwealth v. Irene, 462 Mass. 600, 606 n.13 (2012) ("In order for a statement to be admissible as an admission of the defendant, the judge must make a preliminary finding of fact that the defendant made the statement. . . . Because the relevance of the statement is conditional on this preliminary finding of fact, the judge must also instruct the jury to consider the evidence only if they find that the defendant made the statement").
As an initial matter, the defendant's statements concerning what would happen if Jane told anyone -- that his reputation would suffer, or that he would kill himself -- were not hearsay because they were not introduced to prove the truth of the matter asserted. See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 587 (2013). Furthermore, the statements were admissible to the extent they were intended to prove that the abuse occurred. Extrajudicial statements made by a party opponent are generally admissible as an exception to the rules against hearsay, Commonwealth v. Spencer, 465 Mass. 32, 46 (2013), and the judge did not abuse his discretion in admitting this testimony. See Rivera, supra at 587-588.
Because the identity of the defendant as the speaker was not contested, the judge had no obligation to make a preliminary finding "that the defendant made the statement." Irene, supra. In the ordinary course, the admissibility of extrajudicial statements by a party opponent does not require the type of preliminary fact finding "bearing on conditional or logical relevance" for which "we preserve an independent role for the jury." Commonwealth v. Bright, 463 Mass. 421, 428 (2012). See Mass. G. Evid. § 104(a) note, at 15. In this regard, we discern no error, let alone any risk of a miscarriage of justice.
3. Photographic exhibit. Over the defendant's objection, the trial judge permitted a single photograph of the victim when she was nine years old to be admitted in evidence. Jane was seventeen years old when she testified at trial. She met the defendant when she was nine years old, and he began abusing her when she was ten. The judge did not abuse his discretion in determining that a single photograph, that was neither suggestive nor inflammatory, had probative value that outweighed any undue prejudice "as [it] depicted her during the period when the defendant first met her." Commonwealth v. Tarjick, 87 Mass. App. Ct. 374, 379 (2015).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Meade, Sullivan & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 11, 2016.