Opinion
No. 15–P–551.
05-19-2016
COMMONWEALTH v. Robert CZUBRYT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Robert Czubryt, of indecent assault and battery on a person over fourteen, in violation of G.L. c. 265, § 13H. The defendant filed a motion for a new trial, alleging ineffective assistance of trial counsel. The motion judge, who was also the trial judge, allowed the motion, and the Commonwealth appeals therefrom. We affirm.
Factual background. The victim, who was thirty-six years old at the time of trial, has special needs caused by a serious motor vehicle accident when he was “only weeks old.” On December 4, 2008, he attended a dinner held at a local church. During the dinner, the victim went to the men's room in the church. There, a man, whom he later identified as the defendant, approached him from “behind” and touched him inside his clothes “[n]ear the penis area.” The victim described the assailant to a Pittsfield police officer as wearing a brown coat, having brown hair and brown eyes, and being clean-shaved and approximately five feet, two inches tall. On December 11, 2008, a different detective interviewed the victim. The victim could not identify the attacker by name, but described him as a white male in his forties, wearing a long brown jacket, graying and brown hair always worn in a ponytail, and about five feet, two inches tall. At a subsequent dinner at the church, the victim pointed out the defendant as “the person that he had a problem with.” The police were contacted, went to the church, and observed the defendant who was wearing a brown jacket and his hair in a ponytail. The defendant spoke with the police, and acknowledged that he had been at the church on December 4, 2008. The defendant told the detectives that he never used the church men's room, that people did not like him, and that people made false allegations against him.
There was testimony at trial that the victim participated in the Special Olympics in high school; received special education; spent time at AdLib, which is a socialization center for the mentally and physically handicapped; and that “it's easy to tell that he has some disabilities [and] some limitations.”
On January 15, 2009, the victim returned to the Pittsfield police department and viewed a photographic array. During the identification procedure, which was videotaped, the victim initially identified a photograph of someone other than the defendant, stating, “[t]hat's him.” The detective asked if he was “sure,” and then suggested to the victim that he focus on only one picture at a time. The victim subsequently selected a photograph of the defendant as being the man at the church. The videotape of the identification procedure was entered into evidence, and a portion of it was played for the jury. The defense at trial centered almost exclusively on the identity of the assailant. On February 2, 2010, the jury rendered a guilty verdict.
The motion for a new trial. On January 10, 2013, the defendant filed a motion for a new trial contending, inter alia, that his trial counsel was ineffective for failing to investigate and introduce evidence of: (a) the victim's brain injury and the resulting impact on his ability to perceive and recollect; and (b) the victim's severe visual impairment. On January 14, 2015, the judge held a nonevidentiary hearing. On February 10, 2015, the judge issued written findings and an order allowing the motion for a new trial, because of the “failure of trial counsel to make even a cursory exploration of the extent of complainant's vision problems.”
Standard of review. Under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), a judge may grant a motion for a new trial any time it appears that justice may not have been done. A motion for a new trial is thus committed to the sound discretion of the judge, Commonwealth v. Moore, 408 Mass. 117, 125, 556 N.E.2d 392 (1990), and we pay particular deference to the rulings of a motion judge who served as the trial judge in the same case. See Commonwealth v. Leavitt, 21 Mass.App.Ct. 84, 85, 484 N.E.2d 1032 (1985). Where, as here, a motion for a new trial is based on ineffective assistance of counsel, the defendant must show that the behavior of counsel fell below that of an ordinary fallible lawyer and that such failing “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974).
Discussion. The first prong of the Saferian test is uncontested. There is no dispute that trial counsel did not utilize or subpoena the victim's vision records for trial, did not call an expert at trial to testify to the victim's optical, cognitive, or other limitations, and did not fully explore the extent of the victim's vision problems. Furthermore, the Commonwealth laudably conceded at oral argument that the critical analysis in this case hinges on the second prong of Saferian. Accordingly, we proceed to the “prejudice” prong of the Saferian test and examine whether the judge abused his discretion in finding that the defendant was likely deprived of an otherwise available, substantial ground of defense.
The Commonwealth contends that trial counsel reasonably presented a defense based upon the victim's poor eyesight and the mistaken identification of the defendant. Thus, the Commonwealth argues, the judge abused his discretion because he “unreasonably discounted [t]rial [c]ounsel's efforts to apprise the jury of the poor quality of [the victim's] eyesight.” In support of its argument, the Commonwealth points to four instances where trial counsel purportedly placed the issue of the victim's vision problems before the jury. First, trial counsel placed a written statement before the victim which purportedly enabled the jury to observe him struggle to see the document. Second, trial counsel elicited evidence that the victim provided a description of the assailant that did not match the defendant. Third, trial counsel introduced evidence of, and highlighted in his closing argument, the flaws in the identification process. Specifically, he noted that the victim initially selected someone other than the defendant from the photographic array, and he focused on the detective's role in aiding the victim in his reevaluation of the array. Fourth and finally, trial counsel briefly referenced the victim's vision problems in closing argument.
While viewing the written statement, the victim testified, inter alia, “I can't see it that well.... I can't hardly make it out.” The defendant contends that this demonstration merely showed that the victim struggled to read the document, but did not demonstrate “vision” problems.
The victim described the assailant as having brown hair and brown eyes, and being clean-shaven and approximately five feet, two inches tall. In contrast, a defense witness testified that the defendant was five feet, nine inches tall, had green eyes and gray hair, and that she had never known the defendant to be clean-shaven.
We have reviewed the portion of the videotape that was played to the jury and admitted into evidence.
Trial counsel argued, “ask yourself how [the victim] could have identified [the defendant] all the way across the room if he can't see that well right up close.”
Contrary to the Commonwealth's argument, the references to the victim's inconsistent descriptions of the defendant and incorrect identification in the photographic array did not apprise the jury of the victim's “vision issues.” Although trial counsel did briefly reference the victim's vision problems in his closing argument, the judge found that the trial record is devoid of evidence elicited at trial that corroborated this argument. Indeed, there was no physical, documentary, or medical evidence, nor was there any witness testimony, that referenced the “severe vision problems” of which trial counsel was purportedly aware. On the record before us, the evidence concerning the victim's difficulty in seeing or reading his statement was ambiguous, and we cannot substitute our reading of the transcript for the findings of the judge, who was in the unique position of having heard the evidence and observed the witnesses at trial.
Trial counsel averred in an affidavit, submitted in support of the defendant's motion for a new trial, that he knew from discovery of the victim's “severe vision problems,” and believed that the victim's “poor vision was brought out at trial.” The judge rejected this claim, finding that “[u]nfortunately, the trial transcript does not support trial counsel's belief that the complainant's vision problems [were] discussed at trial.”
The judge stated at the hearing on the motion for a new trial that “it's the first time I've heard about this vision thing” and that it “never came across that he had a problem seeing.”
Moreover, had trial counsel explored the victim's vision problems, which he knew of from the discovery materials, he could have subpoenaed and obtained the victim's medical and mental health records, as the defendant's appellate counsel did through posttrial motions. Therein, he would have found direct evidence of the victim's severe vision problems. Those records indicated, inter alia, that the victim: has been diagnosed with tunnel vision; refused to use adaptive equipment, such as a cane and adaptive eyeglasses, that would be helpful to him; and was eligible for, but had not requested, services through the Massachusetts Commission for the Blind. In a case predicated solely on the victim's identification of the defendant, where, as the judge found, “[t]he only issue which was contested in the trial was that of the identity of the [victim]'s assailant,” such evidence could have provided trial counsel with critical corroboration of the very defense that he chose to pursue. Furthermore, trial counsel also lost the opportunity to consult an expert to determine whether the evidence of the victim's vision problems could be forcefully used at trial. See Commonwealth v. LaBrie, 473 Mass. 754, 773–774, 46 N.E.3d 519 (2016) (holding that “trial counsel's decision to forgo any consultation with an oncologist was manifestly unreasonable, and likely deprived the defendant of a substantial ground of defense on the central disputed issue in the case”).
The judge allowed the defendant's posttrial motions for discovery of the victim's medical and mental health records. Furthermore, in its “Supplemental Reply to Defendant's Motion for New Trial,” the Commonwealth noted that “a Dwyer motion would likely be granted on the basis of assessing visual ability in relation to the misidentification defense.” See generally Commonwealth v. Dwyer, 448 Mass. 122, 859 N.E.2d 400 (2006).
Finally, this was not a case where trial counsel made a tactical decision to pursue a different line of defense. Contrast Commonwealth v. DeVincent, 421 Mass. 64, 68–69, 653 N.E.2d 586 (1995) (counsel not ineffective for failing to call witness at trial where counsel evaluated witness's potential testimony and made tactical decision that such testimony would not benefit client). Here, the defense was mistaken identification, and trial counsel averred that he knew from discovery of the victim's “severe vision problems” and believed that the victim's “poor vision was brought out at trial.” Under such circumstances, it was manifestly unreasonable not to explore and use direct and potentially compelling evidence of the victim's substantial vision problems.
On this record, we cannot say that the judge abused his considerable discretion in determining that the defendant was likely deprived of an otherwise available, substantial ground of defense. See Commonwealth v. Schand, 420 Mass. 783, 787, 653 N.E.2d 566 (1995) (reversal for abuse of discretion particularly rare where judge acting on motion was also trial judge). See also Commonwealth v. Cook, 380 Mass. 314, 325, 403 N.E.2d 363 (1980) (“The test is not what we would have done if we were in the position of the motion judge after hearing the same evidence which he heard.... [I]n this situation we do not allow ourselves the idle luxury of speculating on whether we would have acted differently if we had presided over the hearing on the motion for a new trial”). Accordingly, we affirm.
Order allowing motion for new trial affirmed.