Opinion
14-P-1449
11-18-2015
COMMONWEALTH v. DOMINGO DOCANTO.
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
Following a jury trial in the Superior Court, the defendant, Domingo Docanto, was convicted of rape of a child by force, and indecent assault and battery on a child under fourteen. The defendant appeals from the judgments and the order denying his motion for a new trial, which alleged ineffective assistance of counsel.
Background. This case arises from the victim's allegations of sexual abuse against her uncle, the defendant. We summarize the facts as the jury could have found them, reserving some details for discussion below. The defendant sexually abused the victim on two occasions. After disclosing abuse at the hands of another family member, the victim's cousin Robert, the victim disclosed the defendant's abuse to her sister, Sheila, and to her cousin, Sara, who was the first complaint witness.
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Prior to the defendant's trial, the Commonwealth prosecuted Robert. After a trial in which the jury could not reach a verdict, a jury acquitted Robert of all charges in a second trial. The victim testified in Robert's trial as well as the defendant's. The defendant's trial counsel attended parts of Robert's second trial. However, he did not obtain several police reports generated in the process of investigating the allegations against Robert, and did not return telephone calls from Robert's attorney.
Discussion. 1. Standard of review. Our review of the denial of a motion for a new trial is limited to whether there was "'a significant error of law or other abuse of discretion' . . . [and] [w]e give special deference to the rulings of a motion judge who was also the trial judge." Commonwealth v. Forte, 469 Mass. 469, 488 (2014), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Where, as here, the motion judge also served as the trial judge, we defer to her findings of fact and ultimate decision. Commonwealth v. Lane, 462 Mass. 591, 597 (2012). In this case, in support of her denial of the defendant's motion for a new trial, the trial judge submitted a detailed and thoughtful memorandum of decision in which she carefully assessed each of the defendant's grounds for relief. We discern no error.
2. Trial counsel's alleged failure to prepare for trial. The defendant argues that trial counsel unreasonably failed to interview witnesses and investigate facts that would have developed evidence tending to undermine the victim's credibility.
Specifically, trial counsel did not interview the victim's classmates, to whom the victim disclosed Robert's abuse, did not investigate police reports describing interviews with the victim's mother, and did not investigate Department of Children and Family (formerly Department of Social Services) reports. The defendant alleges that these sources would have revealed conflicting information as to the time periods in which the abuse occurred, which could have been fodder for additional impeachment of the victim's testimony. However, as the trial judge noted, the record does not contain evidence to support these allegations.
In order to establish ineffective assistance of counsel, a defendant must show that "there has been serious incompetency . . . falling measurably below that which might be expected from an ordinary fallible lawyer . . . [that] has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Failed trial tactics do not rise to the level of ineffective assistance, unless they were "manifestly unreasonable." Commonwealth v. Sielicki, 391 Mass. 377, 379 (1984). An attorney need not "pursue every possible avenue in order to forestall an ineffective assistance claim." Commonwealth v. Britto, 433 Mass. 596, 604 (2001). Because impeachment is "fraught with a host of strategic considerations," Commonwealth v. Fisher, 433 Mass. 340, 357 (2001), a claim of ineffective assistance of counsel based on failure to use a particular impeachment method is rarely successful. Unless counsel failed to employ an "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." Ibid.
Here, trial counsel thoroughly cross-examined the victim regarding discrepancies between her trial testimony and the account she gave during the Sexual Abuse Intervention Network (SAIN) interview; on her inability to recall details of the two specific instances of abuse; and on her failure to recall any details about other alleged instances of abuse. Furthermore, as the trial judge correctly pointed out, trial counsel took steps to ensure that he had received all the discovery from the Commonwealth to which the defendant was entitled under the law. There is no allegation that the Commonwealth withheld exculpatory evidence.
3. First complaint witness. The defendant next argues that trial counsel's failure to properly investigate the circumstances surrounding the victim's first complaint rendered him unequipped to request a voir dire on the identity of the first complaint witness and to object to the details of that witness's testimony.
Where there is no factual dispute regarding the first complaint, there is no need for a voir dire to determine the first complaint witness. Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010). Both Sara and the victim testified that Sara and Sheila were present in the room when the victim first disclosed the defendant's abuse. The defendant argues that trial counsel should have requested a voir dire because various people in the house during the victim's disclosure gave differing accounts of the disclosure. However, as the trial judge noted, "The materials relied upon by [the] defendant in support of his argument that there was a basis for requesting a voir dire as to the identity of the first complaint witness do not contain statements to the effect that [Sara] was not in the room when the disclosure was made by persons who were present when the disclosure was made." Absent a genuine factual dispute as to the identity of the first complaint witness, no voir dire was required. See ibid.
The defendant relies on the following materials: Detective Costa's report of her interview with the victim's mother, in which the mother did not include Sara when describing those present when the victim first disclosed the defendant's abuse; Detective Costa's report of her interview with Sheila regarding the victim's first complaint, which makes no mention of Sara; the victim's statements at Robert's trial regarding her disclosure of Robert's abuse; and a Department of Children and Family report containing the victim's mother's statement that the victim made her first complaint to two school friends.
The defendant also argues that he was prejudiced by trial counsel's failure to investigate the circumstances of the first complaint because counsel would have discovered that the victim "most likely did not provide" the extensive detail that Sara testified the victim gave during her initial disclosure. Even if the defendant is correct that the victim's testimony and Sara's testimony differed with regard to the amount of detail allegedly provided during the first complaint, a voir dire would not have led to the exclusion of the testimony because the first complaint standard does not require "complete congruence of the testimony of the complainant and the complaint witness." Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 586 (2013). See Commonwealth v. King, 445 Mass. 217, 243 (2005). Regarding this claim, there was no "serious incompetency" on the part of trial counsel depriving the defendant of a "substantial ground of defence." Saferian, 366 Mass. at 96.
4. Trial counsel's failure to seek admission of Robert's abuse. The defendant next argues that defense counsel unreasonably failed to seek admission of the details of Robert's alleged abuse to demonstrate why the victim could describe sexual acts.
Evidence of a victim's sexual conduct is generally inadmissible in prosecutions involving sexual abuse of a minor. G. L. c. 233, § 21B. An exception arises when a defendant challenges the reliability of the child victim's testimony and seeks admission of evidence of prior abuse to explain her personal knowledge of sexual acts and terminology. Commonwealth v. Ruffen, 399 Mass. 811, 815 (1987). Evidence of prior instances of abuse is relevant where a basis exists for concluding that prior abuse occurred, and where the child victim displayed "knowledge of sexual matters beyond [her] years." Commonwealth v. Savage, 51 Mass. App. Ct. 500, 503 (2001).
The victim in this case, twelve years old at first disclosure and fourteen at trial, used only general language to discuss the defendant's abuse. This does not constitute extraordinary sexual knowledge for the victim's age. See Commonwealth v. Pyne, 35 Mass. App. Ct. 36, 37 (1993) (use of terms "penis" and "vagina" by victim who was fifteen years old at time of trial not extraordinary). Consequently, evidence of Robert's alleged abuse would have been inadmissible, and trial counsel's performance did not deprive the defendant of a substantial ground of defense.
For example, the victim testified that the defendant "put his hand on my vaginal area," and "made my hand go up his pant leg and play with [his] penis."
The defendant also argues that during closing arguments, the prosecutor improperly expressed a personal opinion, vouching for the victim's credibility. We disagree. Because the defendant raised the issue of the victim's credibility, the prosecutor was entitled to address the witness's credibility during his closing argument. See Commonwealth v. Thomas, 401 Mass. 109, 116 (1987).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 18, 2015.