Opinion
No. 13–P–1173.
10-07-2014
COMMONWEALTH v. Steven J. DEEB, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Steven J. Deeb, Jr., appeals from his conviction for indecent assault and battery on a child under the age of fourteen. See G.L. c. 265, § 13B. The defendant challenges the denial of his pretrial motion to suppress, and evidentiary and other rulings by the judge. He also contends that he was deprived of the effective assistance of counsel. For the reasons that follow, we affirm.
The complaint charged the defendant with eight counts of indecent assault and battery on a child under fourteen years of age. The jury returned verdicts of not guilty on seven of the eight counts.
Background. The jury were warranted in finding that on one or more occasions between June and October, 2009, during visits to his father's home, the defendant, then age seventeen, indecently touched his then seven year old stepsister in or on her genitals. There was evidence that while the victim, her younger brother, and the defendant were alone, the defendant would ask to look at her “peepee.” The victim testified that the defendant asked her to remove her pants and underwear and touched her vagina with his hands and fingers, and pulled on it “like the doctor does” and it would “hurt” “[a] lot.” The victim testified further that the defendant would also put her “on his lap” and she would feel “like a big rock on [her] butt” which she knew was his “wienie” or penis. She would try to get off his lap, but he would pull her back. Her younger brother would be on the bed “playing XBOX,” with his back to them when this happened. The jury also heard evidence of admissions by the defendant that corroborated much of the victim's testimony. Additional facts are discussed below in connection with the various issues raised by the defendant.
Discussion. 1. Motion to suppress statements. After the victim disclosed to her mother and prior to any charges being sought, the defendant was interviewed at his mother's home by a Department of Children and Families (DCF) investigator, Joell Michigan, and Rowley police Officer Dorothy Tobin. The defendant does not maintain that the interview was custodial, but instead confines his argument to a claim that his statements were not voluntary because the police “employed multiple problematic tactics .” Commonwealth v. Baye, 462 Mass. 246, 257, 967 N.E.2d 1120 (2012). However, the present case bears no resemblance to Baye, where the Supreme Judicial Court stated that over the course of a ten-hour interrogation, police officers “exaggerated the strength of the evidence against the defendant, while simultaneously minimizing the moral and legal gravity of his alleged crimes,” misstated the law, and discouraged the defendant from consulting with an attorney. Ibid. Here, the evidence supports the judge's finding that prior to the interview, Michigan informed the defendant's mother that she wanted to bring a police officer with her for purposes of an interview with the defendant. The defendant's mother agreed to the meeting. As the judge found,
The defendant also argues that a pamphlet sent to the defendant's home by DCF prior to the interview (“A Family's Guide to Protective Services for Children”) and marked as exhibit three at the hearing, may have misled the defendant and his mother into thinking that the interview was therapeutic and remedial, instead of investigative. However, the pamphlet explicitly states that “DCF is required to notify the District Attorney and police if the report about your family concerns sexual abuse or exploitation.” Here, the letter sent by DCF to the defendant's mother prior to the interview described the report received by DCF as “Sexual Abuse.”?
“During the afternoon of October 29, 2009 Ms. Michigan, along with Officer Tobin arrived at the defendant's residence. The defendant, his mother, Ms. Michigan and Officer Tobin all met in the living room. Ms. Michigan asked the defendant if he was willing to meet. The defendant said yes. Ms. Michigan began the meeting by mentioning the allegations of indecent assault and battery on a child contained in the investigative report. Ms. Michigan asked the defendant, who was 17 at the time, if he would be more comfortable discussing the allegations without his mother present. However, Ms. Michigan also informed the defendant's mother that she could stay if she wanted to. The defendant requested his mother to leave the room. The defendant's mother then retired to another room in the house.”
The judge also found that when asked if he knew why an interview was being conducted, the defendant said “yes” and then added that over a four-month period earlier that year he told the victim to remove her clothing and did “some inappropriate looking” eight or nine times. As the judge found, at this point, after only five minutes, the questioning stopped. Officer Tobin brought the defendant's mother into the room and read the defendant his Miranda rights. Officer Tobin also gave Miranda cards to both the defendant and his mother. Both the defendant and his mother signed acknowledgements that the defendant received his Miranda rights. Officer Tobin asked the defendant and his mother if they wanted her to leave. The defendant and his mother said no. Thereafter, the defendant also told Tobin and Michigan that he touched the victim's thigh in order to spread her legs apart as she sat across from him on the floor. The defendant also stated that the victim “sat in his lap and he got excited.” The interview terminated without an arrest. Based on these findings of fact, the judge was warranted in ruling that there was an absence of coercion or overbearing conduct by Tobin and Michigan, that there was no evidence that the defendant was impaired, and that the defendant's statements were the product of his free and voluntary act.
2. Evidentiary issues. a. Irrelevant evidence. The events in this case occurred between the defendant's junior and senior years in high school. On direct examination by the prosecutor, the victim's mother was asked without objection whether the defendant had any interest in girls or had attended a prom. It is disingenuous to argue, as the Commonwealth does, that “the prosecutor was trying to elicit the defendant's age and high school grade.” This testimony lacked relevance, but its admission does not create a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13–14, 712 N.E.2d 575 (1999).
The defendant also challenges the testimony by Michigan, in response to an open-ended question (“What else did he say”) that the defendant told them he looked at adult pornography. An objection by defense counsel was overruled. The defendant's objection should have been sustained because the testimony lacked relevance. See Commonwealth v. Stuckich, 450 Mass. 449, 459, 879 N.E.2d 105 (2008). Here, the evidence was not nearly as grievous as the provocative photographs that were erroneously admitted in Commonwealth v. Darby, 37 Mass.App.Ct. 650, 654, 642 N.E.2d 303 (1994), and Commonwealth v. Prawshaw, 57 Mass.App.Ct. 19, 25, 781 N.E.2d 19 (2003). Viewing the evidence in its entirety, including the admissions made by the defendant, and the fact that the jury acquitted the defendant of all but one count of the complaint suggests that the fleeting reference to adult pornography did not contribute to the outcome. See Commonwealth v. Sosnowski, 43 Mass.App.Ct. 367, 372, 682 N.E.2d 944 (1997).
b. Improper questions. (i) On direct examination, the prosecutor asked Michigan whether the defendant was asked during his interview if he had ever touched another “male or female.” The defendant's timely objection was sustained and the question was not answered. The question was asked again, and again the defendant's objection was sustained. The record does not support the bald assertion in the defendant's brief that the witness answered the question and that the jury heard her answer. The questions should not have been asked, but in the circumstances, there is no basis for a claim of prejudice. (ii) The defendant also complains about questions the prosecutor put to Officer Tobin on direct examination about whether an interview was scheduled with the victim's younger brother who the victim testified was in the room when she was assaulted by the defendant. Contrary to the defendant's claim that the Commonwealth was suggesting by innuendo that the defendant may have offended against other children, we agree with the Commonwealth's response that this other child was potentially an eyewitness to the events and the Commonwealth therefore had a right to demonstrate to the jury that a thorough investigation was conducted. Insofar as the question may have implied that there were other victims, a curative instruction could have been requested, but was not. In any case, again there is no basis for a claim of prejudice because the judge sustained the defendant's objection to the question. (iii) On cross-examination of Officer Tobin, defense counsel asked whether it was her “job to figure out who's telling the truth.” Tobin answered in the affirmative. On redirect examination, the prosecutor asked Tobin, over objection, “Who did you conclude was telling the truth?” The defendant's objection led to a sidebar and a ruling by the judge that the objection was overruled because the defendant had opened the door. Tobin replied that the victim was telling the truth. The ruling was erroneous. “No witness, neither a law witness nor an expert, may offer an opinion regarding the credibility of another witness.” Commonwealth v. Quinn, 469 Mass. 641, 646 (2014). Even though it would have been advisable for the judge to have instructed defense counsel to rephrase his earlier question about Tobin's role in investigating allegations of criminal activity in order to avoid any impression that she was vouching for the credibility of the victim, the door is never open to permit a witness to offer an opinion on the credibility of another witness. Because the issue is preserved, we apply the prejudicial error standard. “The essential question is whether the error had, or might have had, an effect on the jury and whether the error contributed to or might have contributed to the verdicts.” Commonwealth v. Grimshaw, 412 Mass. 505, 508–509, 590 N.E.2d 681 (1992), quoting from Commonwealth v. Perrot, 407 Mass. 539, 549, 554 N.E.2d 1205 (1990). In making this determination we consider that in addition to the testimony by the victim and the first complaint witness (victim's mother), the jury heard a portion of the victim's videotaped forensic interview, and testimony from Michigan and Tobin that the defendant said he touched the victim's thigh in order to spread her legs apart, and that the victim sat in his lap and he got excited. The victim, her mother, and the other witnesses were thoroughly and vigorously cross-examined. We also note that it was a single, isolated statement. Finally, the fact that the jury acquitted the defendant of all but one count of the complaint suggests that the statement did not contribute to the outcome. See Commonwealth v. Sosnowski, supra. (iv) Finally, the defendant maintains that the prosecutor improperly elicited details of the investigation from the victim's mother, the first complaint witness, which served no purpose other than to corroborate the victim's accusations in violation of Commonwealth v. Arana, 453 Mass. 214, 229, 901 N.E.2d 99 (2009). There was no violation of the limitations on the first complaint doctrine outlined in Arana. In his opening statement, defense counsel questioned the adequacy of the investigation and suggested the evidence would reveal that the victim's mother exaggerated the disclosures by the victim. It was thus permissible for the Commonwealth to anticipate this line of attack and to address the implication that there was fabrication by asking the mother about the steps she took to report the abuse following the disclosure by the victim. Ibid. Further, the testimony was admitted without objection and even if inadmissible did not in the circumstances create a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 850–851, 926 N.E.2d 1143 (2010).
3. Prosecutor' closing argument. During his cross-examination of the victim, defense counsel brought out the fact that her videotaped forensic interview was thirty to forty-five minutes in length. Brief portions of that interview were played for the jury. In his closing argument, defense counsel referred to the statements made by the victim during the forensic interview and contrasted them with what the victim said in court and the testimony given by her mother in an effort to support his theme of exaggeration and fabrication. The prosecutor was entitled to rebut this argument by referring to the testimony given by the victim, her mother, and the other witnesses and by arguing, as he did, that it was consistent and made sense. See Commonwealth v. Chavis, 415 Mass. 703, 713, 616 N.E.2d 423 (1993). The prosecutor's attack on defense counsel's argument that the jury should assess the victim's credibility on the basis of fifteen seconds of a forty-five minute videotaped interview was fair, and was not, in context, an attempt to vouch for the witness based on the prosecutor's knowledge of the contents of the remainder of the taped interview. Our assessment is supported by the fact that defense counsel did not object to the prosecutor's closing argument.
4. Evidence regarding the number of criminal acts. During the investigation of this case, the defendant informed Michigan and Officer Tobin that he had behaved inappropriately with the victim about eight times. On the first day of trial, before the first witness was sworn, defense counsel questioned whether there was a discrepancy between the victim's report of three to four incidents and the account given by her mother during a voir dire hearing relating to her first complaint testimony. The judge informed counsel that if the evidence did not support the number of incidents alleged in the complaint, a motion for a directed finding would be granted. On the second day of trial, prior to the first witness being called, the prosecutor informed defense counsel and the court that the victim was expected to testify that there were more than eight acts of abuse. During her testimony at trial, and during an intense cross-examination, the victim maintained that the defendant abused her twenty times. There is no merit to the defendant's argument that the prosecutor misbehaved by not disclosing to the defense in a timely manner information about the number of indecent acts committed by the defendant. Also, as the Commonwealth argues on pages 28–30 of its brief, there was no basis to question the victim's competence.
5. Instructions to the jury. The defendant's argument that the various counts of the complaint were duplicative and defective is without merit. The complaint was amended to allege that on “various dates between” June 1 and October 10, 2009, the defendant committed eight acts of indecent assault and battery on a child under the age of fourteen, and included the statutory reference and the potential penalty. See Commonwealth v. Walker, 426 Mass. 301, 305, 687 N.E.2d 1246 (1997). The defendant did not move for a bill of particulars, and did not object to the judge's instructions defining the offense, which clearly spell out the elements that the jury must find beyond a reasonable doubt. The evidence included not only details of more than one type of indecent assault and battery in terms of the locations on the victim's body where she was touched, but also that these acts occurred on many different dates. In these circumstances, multiple charges for the same offense were not duplicative. However, even if they were, the argument is moot because the defendant was found guilty of only a single count. See Commonwealth v. Van Bell, 455 Mass. 408, 419, 917 N.E.2d 740 (2009).
After deliberations commenced, the jury asked a question about whether “separate acts” that occur “during the same encounter” should be considered two counts. After carefully considering the views of counsel, the judge instructed the jury that “[e]ach of the eight counts represents a separate day,” and that a finding of guilty as to any one charge required unanimity among the jurors that the defendant committed the offense on that specific occasion. There was no risk of juror confusion or unfairness.
6. Ineffective assistance of counsel. For the first time on appeal, the defendant argues that his trial counsel was ineffective because he did not request a bill of particulars, pursued a flawed theory of defense that was “unreasonably risky,” and failed to seek to exclude the victim's mother's testimony that the victim was suffering from vaginitis during the time she was abused. Following the defendant's conviction, this appeal was stayed at the defendant's request to enable counsel to file a motion for a new trial. No such motion was filed, and the defendant did not file an affidavit by his trial counsel addressing any of these points. It is settled that “claims of ineffective assistance should normally be raised through a motion for a new trial, where an appropriate factual record can be developed. In most instances, the record on direct appeal is inadequate to consider the claim.” Commonwealth v. Diaz, 448 Mass. 286, 289, 860 N.E.2d 665 (2007). Failed strategic choices alone do not support a claim of ineffective assistance of counsel. Commonwealth v. Lykus, 406 Mass. 135, 139, 546 N.E.2d 159 (1989). Based on a consideration of the entire record before us, and taking into account that defense counsel succeeded in winning an acquittal on seven of the eight charges against his client and that there is no affidavit from his trial counsel, we cannot say that any of the decisions made by trial counsel that the defendant now assigns as examples of ineffective assistance deprived the defendant of an otherwise available and substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). See also Commonwealth v. Domino, 465 Mass. 569, 578, 989 N.E.2d 859 (2013) (“To demonstrate prejudice, a defendant asserting ineffective assistance of counsel must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. That requires a substantial, not just conceivable, likelihood of a different result”) (citations and quotations omitted).
Judgment affirmed.