Opinion
18-P-724
03-09-2020
COMMONWEALTH v. Anderson DEBERRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Anderson DeBerry, was convicted of two counts of aggravated rape, two counts of assault and battery, strangulation, assault and battery by means of a dangerous weapon, and threats to commit a crime. On appeal, the defendant contends that (1) he received ineffective assistance of counsel, (2) the prosecutor's questioning of witnesses and closing argument constituted error, and (3) the sexual assault nurse examiner (SANE) nurse offered inadmissible testimony. We affirm.
The jury found the defendant not guilty of kidnapping and one count of aggravated rape.
Background. In August of 2015, following an argument that began at a laundromat and continued at the defendant's home, the defendant threatened to put the victim's head through a wall. The defendant "was really drunk." The victim felt her "head hit something," and she fell to the floor. The defendant punched and kicked her several times. Later, the defendant took most of the victim's clothes, said he would burn them, and told her to turn around. The victim had told him that she did not want to have sex because she had a urinary tract infection. The defendant said that "he didn't care" and inserted his penis into her vagina and his finger into her anus. After the defendant ejaculated, he told the victim, who was crying, that she "was nobody," that he wanted her "to call him a god," and asked her if she wanted to meet Jesus. He also put his hands around her neck, causing her to briefly lose consciousness; he spit in her face; he forced her to her knees and forced her to give him oral sex several times; and he struck her again. Finally, the defendant tried to kick her, missed and cut his toe, and forced her to suck the blood from his toe, stating that the injury was her "fault." At some point, the victim grabbed a remote control and struck the defendant with it.
The defendant and the victim had been dating since approximately May of 2015.
The victim eventually left the defendant's home, returned to her own home, and saw her mother. Upon seeing her injuries, the victim's mother called the police. Police officers and emergency medical services arrived at her home. They observed the victim's "tearful" and "upset" demeanor, and observed injuries to her forehead. The victim was taken to Boston Medical Center, where she spoke with detectives who observed and photographed injuries to her head, neck, and body.
Photographs depicting the victim's injuries, and the victim's medical records from Boston Medical Center, were admitted in evidence.
Police officers executed a search warrant at the defendant's home, and arrested him. While a sergeant detective photographed the defendant after his arrest, the defendant spontaneously offered that he had received the evident cuts on his knuckles and hands prior to the incident involving the victim.
The defendant testified at trial, contended that he and the victim had argued about a woman with whom he had gone to a club, and admitted to drinking and feeling "a little drunk" that evening. He claimed that after he had gone to sleep, the victim woke him up and accused him of taking her marijuana and smoking it with another woman. He denied raping, hitting, threatening, or strangling the victim; he testified that the injuries to his hands stemmed from a fall from a scooter; and he claimed that the injuries to the victim's head occurred because "[s]he slipped and fell" and hit her head on the dresser.
The victim admitted that she had smoked marijuana on the night of the incident.
Discussion. 1. Ineffective assistance. The defendant claims that trial counsel was ineffective because, inter alia, he failed to obtain and use a toxicology report; used open-ended questions on cross-examination; and failed to question the defendant's mother at trial. All three claims are unavailing.
We review a claim of ineffective assistance of counsel to determine whether there was "serious incompetency, inefficiency, or inattention of counsel" that "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See E.B. Cypher, Criminal Practice and Procedure § 63:50 (4th ed. 2014).
"The preferred method for raising claims of ineffective assistance of trial counsel is through a motion for a new trial." Commonwealth v. Davis, 481 Mass. 210, 222 (2019), citing Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). Here, the defendant raises his ineffective assistance arguments on direct appeal and not through a posttrial motion. "Relief on a claim of ineffective assistance based on the trial record is the weakest form of such a claim because it is ‘bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.’ " Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). "Relief may be afforded on such a claim ‘when the factual basis of the claim appears indisputably on the trial record.’ " Gorham, supra, quoting Zinser, supra.
On the record before us, "the defendant's claim of ineffective assistance is not indisputable." Davis, 481 Mass. at 223. Without a motion for a new trial supported by an affidavit from trial counsel, we have no basis on which to assess the credibility and plausibility of the defendant's contentions. See Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 11 (2006) (noting "[c]onspicuous[ ] absen[ce]" of affidavit from trial counsel). For example, the defendant contends that trial counsel was ineffective for failing to obtain and impeach the victim with the results of her toxicology report. The claim fails because there is no evidence of any missing toxicology report in the record before us. Furthermore, even assuming that such a report did exist, the defendant did not initiate steps to have such records produced, and concedes that "[i]t is not known what information was contained in the toxicology screen." Finally, the victim admitted to consuming marijuana on the night of the incident, and defense counsel made use of her admission by contending in closing argument that her drug use "could affect [her] memory" and her "ability to perceive." Accordingly, the claim is speculative, and satisfies neither prong of the ineffective assistance of counsel test.
Likewise, we discern no merit to the defendant's argument that trial counsel asked open-ended questions. He references one brief exchange during cross-examination of the victim, and fails to explain how the two nonleading questions prejudiced him or created a substantial risk of a miscarriage of justice. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (holding that prejudice standard under second prong of Saferian ineffective assistance of counsel test is "effectively the same" as substantial risk of miscarriage of justice standard).
Absent a motion for a new trial supported by an affidavit from trial counsel, there is also no basis to support the argument that defense counsel rendered ineffective assistance by deciding not to cross-examine the defendant's mother. The defendant's mother observed the victim's injuries, and testified to those observations. Indeed, she testified that upon observing the victim's injuries, she (i.e., the defendant's mother) "started crying and screaming." Defense counsel may well have wanted to avoid opening any door on cross-examination to further harmful testimony from this witness, and we see nothing in the record that demonstrates that this witness had any testimony favorable to the defendant to provide. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ("arguably reasoned tactical or strategic judgments" do not amount to ineffective assistance of counsel unless they are " ‘manifestly unreasonable’ " when made).
To the extent that the defendant raises other claims regarding ineffective assistance of counsel, they all suffer from the same shortcomings, and do not require further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
2. Prosecutorial misconduct. The defendant argues that the prosecutor's questioning of a witness and remarks in closing argument constituted reversible error. We disagree. On direct examination of the defendant's mother, the prosecutor asked, "[H]as there ever been a time in [the defendant's] life when he has not lived with you?" She responded, "When he was serving time." The judge ordered that the answer "will be struck," and instructed the jury "to disregard that last answer." The defendant did not object to the question or to the immediate curative instruction. See Commonwealth v. Auclair, 444 Mass. 348, 358 (2005) ("Jurors are presumed to follow a judge's clear instructions and disregard the testimony").
The defendant also contends that the prosecutor should not have stated in closing argument that the defendant's mother "never asked her son what he did [to the victim], and you heard that was because she knew." The defendant did not object to this portion of the Commonwealth's closing argument. Assuming without deciding that the statement was improper, we nonetheless discern no substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Viewed in context of the entire closing argument, the evidence at trial, and the judge's instructions to the jury, the brief mistake was not "sufficiently significant in the context of the trial to make plausible an inference that the [verdict] might have been otherwise but for the error." Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986). See Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).
3. SANE nurse testimony. Finally, the defendant argues that the SANE nurse gave improper opinion testimony and acted as a second first complaint witness. The arguments are unavailing.
First, in response to the question, "[W]hat is a [s]exual [a]ssault [n]urse examiner," the witness stated, "[W]e are specially trained to interview patients and collect evidence on patients who have been sexually assaulted." The defendant did not object to the question or the answer, and thus our review is again limited to whether any alleged error created a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13. Viewed in context, the now-challenged testimony explained in general terms what a SANE nurse does, and did not rise to the level of improper opinion or vouching for the victim's credibility. See Commonwealth v. Dargon, 457 Mass. 387, 398 n.13 (2010) ("It is not improper, as a general matter, to introduce testimony explaining the SANE process, either to provide background for testimony of a SANE nurse such as Griffin or to lay a foundation for the admission of physical evidence in a SANE kit"). Even assuming that the statement should have been better articulated, the isolated statement, viewed in the context of the witness's entire testimony and the evidence admitted at trial did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Marrero, 60 Mass. App. Ct. 225, 232 (2003) (no substantial risk of miscarriage of justice where improper statement "was fleeting and of minimal impact in the context of [a] lengthy trial, where the evidence of the defendant's guilt was strong").
The Supreme Judicial Court has instructed that
"[w]hen a SANE kit is introduced as an exhibit or when testimony is offered concerning the SANE examination process, the judge, on request, should explain to the jury that SANE examinations occur when there is an allegation or complaint of sexual assault; and the fact that the examination occurred, by itself, does not constitute evidence or any indication that the complaint is valid."
Commonwealth v. Dargon, 457 Mass. 387, 398 n.13 (2010). The defendant did not request such an instruction here.
Second, the defendant contends that the nurse provided inadmissible first complaint testimony. We first note that the defendant did not object at trial on this basis. Rather, the nurse testified that after completing the examination of the victim, she had concerns regarding the injuries to the victim's neck "because she was strangled and lost consciousness." The defendant objected to this testimony, and the judge sustained the objection "as to [the nurse]'s conclusion that [the victim] was strangled."
Later, the prosecutor asked the nurse whether, based on her observations of and discussions with the victim, she shared information with other medical staff. The nurse responded that she had observed trauma to the victim's head and neck. She further testified, in relevant part, as follows: "I wanted to make sure that [the head and neck trauma] was addressed by the medical staff in the emergency room. So -- and then with the conversation that I had with her, she had said that she was strangled and lost consciousness." The defendant did not object to this testimony. Furthermore, contrary to the defendant's argument, the prosecutor did not ask the nurse to repeat what the victim had disclosed to her. As the above-quoted language demonstrates, the prosecutor, somewhat inarticulately, asked the nurse whether she had a subsequent conversation "with medical staff" after she had completed the examination of the victim. The nurse's response went beyond the question, and the defendant did not object to or move to strike this specific testimony. Therefore, our review is again limited to whether any error created a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.
The record is somewhat ambiguous as to the basis of the defendant's earlier objections to the nurse's testimony. Nevertheless, even assuming that the defendant made a timely, specific objection, we discern no prejudicial error for the reasons stated herein.
Here, there was no error, because the evidence of the victim explaining to the nurse "what had happened" had an independent basis of admissibility as a statement made to assist in the victim's medical treatment, and "[t]he first complaint doctrine does not ... prohibit the admissibility of evidence that ... is otherwise independently admissible" (quotation and citation omitted). Commonwealth v. Aviles, 461 Mass. 60, 69 (2011). See Dargon, 457 Mass. at 396, quoting Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998) (" ‘fact-specific references to the reported cause of ... injuries’ made for purposes of obtaining medical treatment" are admissible).
Furthermore, even assuming that the nurse should not have referenced the victim's statement, we are confident that any error did not create a substantial risk of a miscarriage of justice, and "did not influence the jury, or had but very slight effect" (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Apart from the sole, fleeting reference to the victim's statement, the nurse properly testified to her background, the examination of the victim, and the treatment and medical history of the victim. See Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 702 (2009) (no prejudice to defendant where SANE "nurse's testimony merely described the steps she took in performing the sexual assault examination"). Moreover, the Commonwealth's case was strong and corroborated by substantial physical evidence. See Commonwealth v. McCoy, 456 Mass. 838, 852 (2010) (no substantial risk of miscarriage of justice where SANE nurse's improperly-admitted testimony "did not materially influence the verdict" and defendant had opportunity to cross-examine SANE nurse). By contrast, the defendant's claims -- including but not limited to his testimony that no fight occurred, that the victim somehow fell into a dresser causing her injuries, and that the cuts to his hands and knuckles stemmed from an earlier scooter accident -- lacked corroboration and plausibility.
In short, none of the defendant's contentions warrants appellate relief.
Judgments affirmed.