Opinion
20-P-277
06-08-2021
COMMONWEALTH v. Steven FLOOD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial, the defendant was convicted of numerous sex offenses against three victims: J.L., J.G., and A.W. The defendant filed a motion for a new trial arguing that his trial counsel was constitutionally ineffective in (1) requesting joinder of the indictments, (2) failing to request a limiting instruction, (3) failing to request certain discovery from the Commonwealth, and (4) failing to object to the testimony of a substitute first complaint witness. He also filed motions for an evidentiary hearing and for posttrial discovery, seeking reports and documents related to the prosecution's attempts to identify a therapist to whom J.G. made his first complaint. The motion judge, who was also the trial judge, denied the three motions. The defendant appealed. We affirm.
The defendant was convicted of six counts of statutory rape of a child, G. L. c. 265, § 23, twelve counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B, and one count of indecent assault and battery on a person fourteen years of age or over, G. L. c. 265, § 13H. The judgments were affirmed on appeal. See Commonwealth v. Flood, 89 Mass. App. Ct. 1111 (2016).
Discussion. 1. Motions for new trial and evidentiary hearing. Under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), a judge "may grant a new trial at any time if it appears that justice may not have been done." "The judge may rule on the motion for new trial from the face of the affidavits or other supporting material, without an evidentiary hearing, ‘if no substantial issue is raised by the motion or affidavits.’ " Commonwealth v. Marrero, 459 Mass. 235, 240 (2011), quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). "In determining whether to conduct an evidentiary hearing, both the seriousness of the issue raised and the adequacy of the showing on that issue must be considered." Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014). "When a substantial issue has been raised, and supported by a substantial evidentiary showing, the judge ‘should hold an evidentiary hearing.’ " Id., quoting Marrero, supra. We review for an abuse of discretion, giving "special deference to the action of a motion judge who, as here, was also the trial judge." Commonwealth v. Mercado, 452 Mass. 662, 666 (2008).
As grounds for his motion for a new trial, the defendant argued that his trial counsel was ineffective, which required him to show " ‘behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,’ and that counsel's poor performance ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Millien, 474 Mass. 417, 430 (2016), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). While a claim of ineffective assistance "raises ‘an issue of constitutional importance’ that readily qualifies as a serious issue," Commonwealth v. Denis, 442 Mass. 617, 629 (2004), quoting Commonwealth v. Licata, 412 Mass. 654, 661 (1992), we discern no abuse of discretion in the judge's determination that the defendant's motion for a new trial did not make an adequate showing as to any of the alleged instances of ineffective assistance of counsel such that an evidentiary hearing was required. We address each claim in turn.
a. Request for joinder. The defendant argued in his motion for a new trial that his counsel was ineffective in requesting that the indictments in two separate cases -- docket no. 1279CR00240 (docket no. 12-240), which included nine indictments for conduct against J.L., and docket no. 1279CR00771 (docket no. 12-771), which included ten indictments for conduct against J.G. and A.W. -- be joined for trial. Originally, defense counsel successfully opposed the Commonwealth's motion to join the cases. However, on the first day scheduled for trial on docket no. 12-240, for the offenses against J.L., the Commonwealth moved in limine to admit evidence of other bad acts to demonstrate that the defendant had engaged in a pattern of conduct. Specifically, the Commonwealth sought to introduce in its case-in-chief testimony from J.G. and A.W. describing the offenses against them that were similar to the assaults on J.L. At the hearing, the judge indicated that he was inclined to admit the evidence but stated that he wanted to research the issue before ruling.
The motion judge denied the motion for joinder but left to the discretion of the trial judge whether "evidence of one offense should be admitted in the trial of the other pursuant to [Mass. G. Evid.] § 404(b)."
Each victim was assaulted by the defendant while they were swimming, or changing into swimming attire, at a pool located next to the defendant's home.
The judge stated,
"[W]hat I am going to do is I am not going to make a decision off the top of my head. After reading this, I'll think about it overnight, and we can deal with this tomorrow morning.... I have to say my inclination is to allow the evidence in, because they are in the pool and do the exact same thing, this is evidence of that that typically the court allows and has repeatedly allowed into evidence in these type of cases, but I would really like to have an understanding of this."
Trial counsel notified the judge that, if J.G. and A.W. were permitted to testify, he was not prepared to go forward for trial on the following day. In response, the judge asked trial counsel how he wished to proceed, again indicating that the testimony would likely be admitted. In anticipation of the unfavorable ruling, trial counsel decided to waive his opposition to joinder, and instead he requested that the cases in fact be joined and that a new trial date be established.
"Decisions regarding joinder fall within the realm of strategic or tactical judgment." Commonwealth v. Hernandez, 63 Mass. App. Ct. 426, 432 (2005). The defendant bore the burden of demonstrating that counsel's decision was "manifestly unreasonable." Id., quoting Commonwealth v. Conley, 43 Mass. App. Ct. 385, 392 (1997). The defendant submitted an affidavit from trial counsel in which counsel stated that he requested the joinder for two reasons: (1) discovery had not yet been completed in docket no. 12-771 and, as a result, he was not ready to cross-examine J.G. and A.W.; and (2) if J.G. and A.W. were permitted to testify at the trial for the conduct against J.L., he preferred to try the cases together. In light of this explanation, the judge acted well within his broad discretion in determining, without an evidentiary hearing, that trial counsel's decision to request joinder was not manifestly unreasonable.
Trial counsel's affidavit explained his reasoning for moving to join the cases, and there is nothing to suggest that testimony from trial counsel at an evidentiary hearing would reveal anything additional. See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004) ("A judge may also consider whether holding a hearing will add anything to the information that has been presented in the motion and affidavits"). Based on the judge's inclination to admit testimony from J.G. and A.W., defense counsel was suddenly faced with the prospect of defending two trials where the Commonwealth would present substantially the same testimony. In light of this, the judge determined it to be a reasonable strategic decision of defense counsel to request joinder of the cases in order to avoid having to defend against two trials with largely the same evidence, rather than one, which might have proved to be more difficult where the Commonwealth could learn the theory of defense at the first trial and adapt its strategy in its case-in-chief for the second. We discern no abuse of discretion in that determination.
b. Failure to request limiting instruction. The defendant also contended that trial counsel was ineffective for failing to request a limiting instruction to preclude the jury from considering each charge as evidence that the defendant had the propensity to commit the other charges. In his affidavit, trial counsel stated that the decision not to request such an instruction was not a strategic one. Rather, he "simply did not consider requesting jury instructions on this issue."
We conclude that the judge did not abuse his discretion in deciding the issue without an evidentiary hearing. Because trial counsel admitted in his affidavit that he did not consider requesting a limiting instruction of this nature, and the judge apparently accepted this admission as true, there was nothing to be gained by counsel's testimony on the issue. See Goodreau, 442 Mass. at 348-349. Thus, the judge properly focused his inquiry on whether counsel's failure to consider and request the instruction amounted to ineffective assistance, and whether the defendant was prejudiced as a result. See Millien, 474 Mass. at 430.
The judge determined that, even if trial counsel was ineffective in failing to request a limiting instruction, the defendant was not prejudiced. If the judge had given the limiting instruction, he would have instructed the jury regarding the purpose for which the evidence may be used. See Commonwealth v. Purdy, 459 Mass. 442, 453 (2011). "[W]hen a defendant is charged with any form of [an] illicit sexual [offense], evidence of the commission of similar crimes by the same parties though committed in another place, if not too remote in time, is competent to prove an inclination to commit the [acts] charged in the indictment." Commonwealth v. King, 387 Mass. 464, 470 (1982). Further, evidence of a sexual offense against a different person may be admissible if connected "in time, place, or other relevant circumstances to the particular sex offense for which the defendant is being tried." Id. Because the assaults on the three victims were committed in a similar manner, around the same time period, when all the victims were of similar age, and when all the victims were under the supervision of the defendant, they were admissible to prove that the defendant had engaged in a pattern of conduct and had an inclination to commit the acts charged. See id. at 470-472.
In determining that the defendant was not prejudiced by the lack of a limiting instruction, the judge considered that it was unlikely that a jury could have rationally distinguished the difference between "inclination" and "propensity" such that a limiting instruction would have made a meaningful difference. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 818 n.5 (1998) (noting that "inclination" and "propensity" are "closely related and in many contexts interchangeable"). Moreover, the judge did instruct the jury that they were required to consider each charge separately and could convict the defendant of a specific charge only if they unanimously agreed "that the defendant committed the offense on at least one specific occasion within the time frame specified and in the manner specified." Based on this, coupled with the fact that a limiting instruction was provided in relation to uncharged conduct, the judge concluded that the defendant was not deprived of an "available, substantial ground of defence." Millien, 474 Mass. at 432, quoting Saferian, 366 Mass. at 96 ("defense is ‘substantial’ for Saferian purposes where we have a serious doubt whether the jury verdict would have been the same had the defense been presented"). We perceive no abuse of the judge's discretion.
c. Failure to request discovery from Commonwealth. The defendant also argued that trial counsel was ineffective for failing to request discovery from the Commonwealth concerning its efforts to identify the therapist to whom J.G. made his first complaint. The parties were aware that while J.G. was hospitalized in April 2012, he reported, for the first time, to a therapist at the hospital that he had been sexually assaulted as a child. With J.G.’s authorization, the Commonwealth obtained records from the hospital, and turned those records over to the defendant during discovery. The records provided were records only from the emergency department and did not contain any records from the psychiatric unit. There was, however, a nursing note contained in the records that stated "[patient] admits to seeing a therapists [sic ] to work through recent admission of being molested."
The defendant moved for discovery of the therapist's name, and the motion was allowed by agreement. J.G. was unable to recall the therapist by name but disclosed that she was female. In an attempt to locate the therapist, the Commonwealth spoke to numerous employees at the hospital, and prepared a photographic array of all the female employees in the emergency department and all of the female psychologists at the hospital. After being shown the array, J.G. was still unable to identify the therapist to whom he made his disclosure. Trial counsel subsequently learned that J.G.’s authorization for release had only pertained to the emergency department records, and he moved to obtain the entire record of J.G.’s hospitalization in April 2012. The motion was allowed, but at the hearing on the motion for a new trial, trial counsel represented that the subsequent records he received from the hospital were in fact the same records he received from the Commonwealth.
The motion was originally denied but was subsequently allowed on the defendant's motion for reconsideration.
Trial counsel did not seek discovery of the photographic array prepared by the Commonwealth or any police reports prepared in connection with identifying the therapist. In his affidavit, trial counsel explained that he did not believe that such police reports existed. We agree with the judge that trial counsel was not ineffective for failing to request discovery of those materials from the Commonwealth, that the defendant was not prejudiced by the failure to request those materials, and that both conclusions could be reached without an evidentiary hearing.
Trial counsel indeed made numerous unsuccessful efforts to discover the identity of the therapist, and he was fully aware that the Commonwealth was unable to identify the therapist as well. Counsel did not believe, nor did he have reason to believe, that the Commonwealth had prepared police reports addressing their efforts to identify the therapist, and it is unclear what the defense would have gained by the photographic array since it did not produce a positive identification of the therapist. Though the defendant argues that these materials would have been exculpatory and would tend to suggest that J.G. was lying about making the disclosure to a therapist, it is unlikely that the information would have had any real value as impeachment evidence.
First, J.G. did not testify at trial about the complaint he made to the therapist, so there was nothing for trial counsel to impeach. Further, the records that trial counsel did receive contained a nursing note that specifically stated that J.G. had recently disclosed to a therapist that he had been assaulted. Thus, even if defense counsel had requested and obtained this information and attempted to use it to undermine J.G's credibility, J.G.’s credibility would have been easily rehabilitated with evidence of the nursing note. In any event, the failure to impeach a witness generally "does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Bart B., 424 Mass. 911, 916 (1997).
d. Failure to object to first complaint testimony. The defendant further argued that trial counsel was ineffective for failing to object, on best evidence grounds, to the testimony of a substitute first complaint witness. After revealing to his therapist that he had been sexually assaulted as a child, J.G. contacted his sister, K.G., via private Facebook message, and told her that he had been sexually assaulted by the defendant. Because the Commonwealth could not identify, and as a result locate, the therapist, K.G. was permitted to testify as a substitute first complaint witness. She testified about the complaint that J.G. had made to her, but the Facebook conversation itself was not introduced in evidence.
Facebook allows users to send instantaneous private messages to other users on the platform. See Commonwealth v. Meola, 95 Mass. App. Ct. 303, 304 n.1 (2019).
In his affidavit, trial counsel stated that he did not object to K.G.’s testimony on best evidence grounds because he did not believe that such an objection would be successful. As the judge concluded, trial counsel was likely correct. "The best evidence rule provides that, where the contents of a document are to be proved, [a] party must either produce the original [document] or show a sufficient excuse for its nonproduction." Commonwealth v. Revells, 78 Mass. App. Ct. 492, 496 (2010), quoting Commonwealth v. Ocasio, 434 Mass. 1, 6 (2001). See Mass. G. Evid. § 1002 (2021). However, "first complaint testimony is ‘not offered to prove the truth of the matter asserted’; rather it is ‘an exception to the usual rule that a prior statement of a witness concerning a material fact that is consistent with the witness's trial testimony may only be admitted on redirect examination.’ " Revells, supra at 497, quoting Commonwealth v. King, 445 Mass 217, 241 n.1 (2005), cert. denied, 546 U.S. 1216 (2006). Accordingly, because K.G.’s testimony concerning the complaint made by J.G. via Facebook was not offered to prove the contents of the writing, but was admitted only to assist the jury in their assessment of J.G.’s credibility, the best evidence rule did not apply. See King, supra at 247-248; Revells, supra. See also Mass. G. Evid. § 1004(d) (2021) (content of writing or record may be established by evidence other than original if "the writing or record is not closely related to a controlling issue"). The judge therefore properly concluded that counsel was not ineffective in failing to lodge an objection on best evidence grounds. See Commonwealth v. Cartright, 478 Mass. 273, 283 (2017) ("[f]ailure to raise a nonmeritorious objection does not constitute ineffective assistance").
2. Motion for posttrial discovery. "To succeed on a posttrial discovery motion, ‘a defendant must demonstrate that it is reasonably likely that such discovery will lead to evidence possibly warranting a new trial,’ and ‘the defendant must make a prima facie showing that the evidence sought would have materially benefited the defense and would have factored into the jury's deliberations.’ " Commonwealth v. Moffat, 486 Mass. 193, 207 (2020), quoting Commonwealth v. Camacho, 472 Mass. 587, 598 (2015). "We review the denial of a motion for posttrial discovery for abuse of discretion." Moffat, supra.
The judge did not abuse his discretion in denying the defendant's motion for posttrial discovery of the photographic array or police reports prepared in connection with identifying the therapist to whom J.G. made his first complaint. For the reasons stated supra, it is unlikely that these items would have materially benefitted the defense. Because the defendant failed to make his prima facie showing, his motion for posttrial discovery was properly denied.
Orders dated January 6, 2020, denying motions for new trial, evidentiary hearing, and posttrial discovery, affirmed.