Opinion
10-P-1012
06-01-2015
COMMONWEALTH v. GENE D. DEREE.
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 appeals from his conviction of indecent assault and battery on a person under fourteen and from the denial of his motions for a new trial. We affirm.
The appeal from the order denying the second motion for a new trial was consolidated with the appeal from the conviction and first motion for a new trial. The defendant in his argument on appeal only challenges the denial of the second motion for a new trial.
Background. Based on the evidence at trial, the jury could have found that the defendant was present at the home of the victim's mother one day in 2000. The victim, then five, was sitting on the couch watching a cartoon with her mother and younger sister. The defendant came over to the couch, picked up the victim, and placed her on his lap. He covered the victim with a blanket and touched her genital area. The victim pulled at the defendant's wrist and told him to stop but he continued. Eventually the victim got away and ran upstairs to her bedroom.
The victim was eleven at the time of the trial. She testified to the facts outlined above, and stated that she first reported the assault to her stepmother, Kelly Tirrell, one evening when the victim and Tirrell were doing the dishes. Tirrell testified as the "first complaint" witness, and stated that the victim disclosed the assault after she was discovered in the bathtub with her mouth on her younger stepbrother's penis. Tirrell angrily asked the victim where she learned that behavior, and the victim stated that she learned it from the defendant. The victim told Tirrell about the defendant touching her under the blanket, and also stated that the defendant had put his mouth on her genitals.
The defense at trial was that the assault did not happen and the victim was not credible. Before trial, counsel for the defendant litigated several motions regarding the victim's counseling and Department of Social Services (DSS) records. Defense counsel was allowed to examine all of the records; however, his motion to admit them was denied. The records, consisting of notes and observations by the victim's counselor and DSS investigators, contain inconsistent statements by the victim and reflect the observers' concerns about her reliability. One DSS report from 2001 was introduced through the testimony of the case worker who authored it and states that the victim reported being touched by a "boy" named Gene but denied being touched by any adults.
DSS is now known as the Department of Children and Families.
In his first motion for a new trial, the defendant argued that he received ineffective assistance of counsel because trial counsel failed to introduce the victim's counseling and DSS records and failed to object to the prosecutor's closing argument. The trial judge denied the motion in a three-page decision. The defendant raised identical claims in his second motion for a new trial, along with claims that trial counsel should have retained an expert in child psychology and that the assistance of the counsel who argued the first motion for a new trial was constitutionally ineffective. A different judge adopted the findings made by the trial judge in denying the defendant's first motion for a new trial, and denied the second motion.
The trial judge had retired at the time of the second motion for a new trial.
On appeal, the defendant states that his second motion for a new trial should have been allowed because his trial was infected with prejudicial constitutional error. First, he argues that his due process rights were violated when trial counsel failed to object to a portion of the prosecutor's closing. Next, he claims that he was deprived of his constitutional right to present a defense when trial counsel "inexplicably failed to fully challenge" the victim's credibility using the DSS and counseling records, which he argues are evidence that the victim previously had made false allegations of abuse. Finally, the defendant faults trial counsel for failing to retain an expert to testify that the victim's clinical diagnoses impacted her ability to perceive or credibly recount the assault.
The counseling records suggest that the victim was diagnosed with attention deficit hyperactivity disorder (ADHD), and appellate counsel's affidavit in support of the second motion for a new trial states that a psychological evaluation of the victim reflected diagnoses of conduct disorder and oppositional defiance disorder (ODD). The evaluation does not appear in the record.
Discussion. "In deciding whether to grant a motion for a new trial, the question whether 'justice may not have been done' at trial is left largely to the discretion of the judge who presided over the case." Commonwealth v. Pope, 392 Mass. 493, 497 (1984). "We extend special deference to factual determinations made by a motion judge who also was the trial judge," Commonwealth v. Leng, 463 Mass. 779, 781 (2012), "and the judge's disposition of the motion will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error." Commonwealth v. Russin, 420 Mass. 309, 318 (1995). On this consolidated appeal, "[w]e also review the individual claims of error on direct appeal." Commonwealth v. Alammani, 439 Mass. 605, 608 (2003).
In denying the defendant's first new trial motion, the trial judge considered all of the arguments currently raised by the defendant except for the claim relating to trial counsel's failure to retain an expert. He found that "there was a fair presentation of the case to the jury with all its faults and weaknesses," and noted that "the jury had a chance to weigh the testimony and in spite of all of the negative information it had concerning the victim, the jury believed the victim and did not believe the defendant." The defendant does not challenge this decision on appeal, and we see no abuse of discretion.
That claim was not made in the first motion for a new trial. The judge considering the second new trial motion noted that the defendant had raised the issue, but he did not address the claim on its merits when he denied the motion. We review under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Chase, 433 Mass. 293, 299 (2001).
Since "[i]n general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance," Commonwealth v. Bart B., 424 Mass. 911, 916 (1997), and cases cited, trial counsel's assistance could not be deemed ineffective for failing to fully impeach the victim. While the defendant faults trial and first appellate counsel for failing to pursue or effectively argue a "Bohannon" defense, see Commonwealth v. Bohannon, 376 Mass. 90, 95 (1978), S.C., 385 Mass. 733 (1982), he has offered nothing to show that allegations contained in a 1999 DSS report were false other than a letter from the Plymouth County district attorney's office stating that an investigation into the victim's allegations was being closed, the 2001 DSS report (wherein the victim states that she has never been touched by an adult), a 2004 DSS report (wherein the victim stated that "no one else besides her mother's cousin had touched her sexually)," and trial counsel's statement "that the complainant had, in [his] opinion, likely made false allegations of sexual abuse by at least two other people." For Bohannon to apply, "there also has to be evidence warranting a finding of falsity." Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 490 (1987). "The victim's mere failure to prosecute or confirm prior allegations of sexual assault, or the Commonwealth's decision not to move forward with criminal charges, are insufficient bases for inferring that the allegations in question are false." Commonwealth v. Costa, 69 Mass. App. Ct. 823, 831 (2007), and cases cited. The defendant does not argue that the trial judge abused his discretion in excluding from evidence the 1999 and 2004 DSS reports, see Commonwealth v. Martin, 467 Mass. 291, 311 (2014) (noting that "[w]hether to admit evidence of a witness's prior misconduct is within the discretion of the trial judge"), and we do not consider it ineffective assistance not to impeach an eleven year old with inadmissible records of statements she made when she was four. Nor was it ineffective assistance not to introduce the 2004 statement to prove that the victim's prior allegations were false, because that statement may identify the defendant (or the defendant's son) as the only person who has touched the victim sexually. "The defendant obtained valuable impeachment of the victim from the testimony of the prosecution's first complaint witness" and from the DSS worker's testimony about the contents of the 2001 report. Thus, even if the defendant could prove that the allegations contained in the 1999 report were false, "[e]vidence of prior false accusations would not appreciably have enhanced the defendant's efforts to show her a liar." Ibid.
The 1999 DSS report documents information received from a mandated reporter that the victim reported being abused by a babysitter. The 1999 report also indicates that the DSS worker contacted the victim's social worker, who stated that the victim recently had reported being touched by her father's boss.
The defendant testified that he had been married to the first cousin of the victim's mother.
We see nothing unfair in the prosecutor's closing argument. The prosecutor "act[ed] properly in inviting the jury to consider whether the victim ha[d] a motive to lie, and identifying evidence that demonstrate[d] that the victim's testimony is accurate and reliable." Commonwealth v. Polk, 462 Mass. 23, 39-40 (2012). The prosecutor argued inferences that were "reasonably derived from the evidence," Commonwealth v. Caillot, 449 Mass. 712, 721 (2007), and because her comments "did not create a substantial risk of a miscarriage of justice, the failure of defense counsel to object to them at trial cannot amount to ineffective assistance of counsel." Commonwealth v. Oliveira, 431 Mass. 609, 613 n.6 (2000).
Finally, there was no abuse of discretion in denying the defendant's second new trial motion. That judge adopted the findings of the trial judge, whose decision the defendant does not challenge. We see no risk of a miscarriage of justice from trial counsel's failure to retain an expert in child psychology, where the defendant has not provided an affidavit from any expert stating that the victim's diagnoses would prevent her from accurately perceiving or reporting the assault. See Commonwealth v. Alicea, 464 Mass. 837, 850 (2013), and cases cited. "From this deficiency alone, we conclude that the judge correctly rejected the defendant's claim of ineffective assistance of trial [and first appellate] counsel." Commonwealth v. Companonio, 445 Mass. 39, 51 (2005).
While "[a]ny lawyer combing the record" perhaps could have tried this case better, Commonwealth v. Carlos, 38 Mass. App. Ct. 929, 932 (1995), the defendant has not shown that he was deprived of his rights such that his trial was infected with prejudicial error. "Trial counsel does not necessarily provide ineffective assistance by 'not probing every inconsistency,'" Commonwealth v. Jewett, 442 Mass. 356, 365 (2004), particularly where a child victim testifies to events that occurred when she was five. We defer to the trial judge, who found "no fatal flaw in the trial attorney's actions, and no 'unfairness' in the process or the verdict," and we see no abuse of discretion in denying the defendant a new trial.
Judgment affirmed.
Orders denying motions for new trial affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 1, 2015.