Opinion
18-P-1462
12-23-2019
COMMONWEALTH v. Oscar FLORES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury on two charges of aggravated rape of a child under the age of sixteen, and seven charges of indecent assault and battery on a child under the age of fourteen. There were two victims, and the assaults took place in the defendant's home over a period of years, while the victims were between eight and twelve years old. On appeal the defendant argues (1) that his motion for new trial should have been granted because trial counsel rendered ineffective assistance of counsel, and (2) that the trial judge erred in joining the charges of the two victims for trial. We affirm, largely for the reasons set forth by the Superior Court judge.
As we discuss, see note 3, infra, the defendant was acquitted of charges regarding a third victim.
Background. As noted, the charges on which the defendant was convicted involved two separate victims. The first victim, Q.B., lived next door to the defendant until she was thirteen years old, and regarded him as an uncle. She testified among other things to an assault where the defendant touched her while she was seated on the couch in the defendant's home, including touching her breasts, when she was eleven or twelve years old. Q.B. also testified to another offense -- a rape by sexual intercourse -- that occurred in the basement of the defendant's home. These incidents occurred in 2002 and/or 2003. The second victim, R.U., was the daughter of a woman who dated the defendant's wife's nephew. R.U. testified to a digital rape that also occurred on the couch in the defendant's home, when she was approximately eight years old. This occurred in approximately 2002 or 2003. Both victims were playmates of the defendant's son, and thus were frequently in the defendant's home.
Discussion. The defendant argues that his counsel rendered ineffective assistance because (1) counsel failed to competently cross-examine Q.B., because he failed to impeach Q.B. with her prior inconsistent statements about the couch incident, and (2) counsel was allegedly unprepared, and as a result could not recall the basic facts required for his opening statement and competent cross-examination.
To demonstrate ineffective assistance of counsel, the defendant must show that counsel's assistance fell measurably below that which would be expected from an ordinarily fallible lawyer, and that counsel's failures "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The burden of showing ineffective assistance is a heavy one, as appellate counsel recognizes. See Commonwealth v. Nardone, 406 Mass. 123, 126 (1989) (successful claim requires showing that counsel's tactical decisions were "manifestly unreasonable" [citation omitted] ). Where a motion for new trial is not accompanied by an affidavit from trial counsel, the defendant's ineffective assistance argument is in its "weakest form," because it is "bereft of any explanation by trial counsel for [their] actions and suggestive of a strategy contrived by a defendant viewing the case with hindsight" (citation omitted). Commonwealth v. Diaz, 448 Mass. 286, 289 (2007).
We review the denial of a motion for new trial for abuse of discretion, Commonwealth v. Grace, 397 Mass. 303, 307 (1986), and we discern no abuse of discretion here. As to the allegation of inadequate cross-examination, the defendant argues that counsel failed to bring out an important inconsistency -- that Q.B. testified at trial that the defendant touched her breasts when she was on the couch, whereas Q.B. had denied a touching of her breasts in an earlier interview. While it may well be that defense counsel should have brought out this inconsistency, in the context of the entire trial the point was not particularly material. The inconsistency did not fundamentally undermine the prosecution's evidence; the inconsistency related to a detail of just one of several assaults, with respect to just one of the two witnesses. Notably, defense counsel did not have similar impeachment material available with respect to the more serious assault of Q.B. -- the vaginal rape in the defendant's basement. And inasmuch as there is no affidavit from trial counsel, we are left to speculate as to what tactical decisions may have led counsel to conduct cross-examination as he did. As a general rule, failures to impeach a witness will not amount to ineffective assistance of counsel. Commonwealth v. Valentin, 470 Mass. 186, 190 (2014). This is such a case, as we cannot say that "a different approach to impeachment would likely have affected the jury's conclusion" (citation omitted). Id.
The theory of the defense was that the allegations had been fabricated. The trial judge did not agree that trial counsel's cross-examination was substandard. Our review of the record does not lead us to disagree with the trial judge.
As to the assertion that trial counsel was unprepared and could not keep the basic facts straight, the short answer was supplied by the motion judge, who was also the trial judge and had the benefit of observing the trial firsthand. He found "that this [alleged unpreparedness] is simply not the case." After a careful review of the record, we observe nothing to the contrary. A handful of slips of the tongue do not demonstrate fundamental unpreparedness -- a situation the trial judge in any event was in the best position to evaluate.
Finally, the defendant challenges the trial judge's decision to join the charges related to Q.B. and R.U., arguing that the assaults on the two victims "showed no common scheme or pattern of operations." We disagree. All of the acts occurred in the defendant's home, with respect to victims roughly of the same age, who were in the defendant's home because they were playmates of the defendant's son. Indeed, both Q.B. and R.U. were similarly assaulted on the couch in the defendant's living room. See Commonwealth v. Pillai, 445 Mass. 175, 181-182 (2005) (affirming joinder where each victim was at defendant's house for sleepover with defendant's daughter, and defendant used "same method of access" to victims); Commonwealth v. Mamay, 407 Mass. 412, 416 (1990) (affirming joinder where each victim was defendant's patient and offenses committed in defendant's office). While the time frames of the assaults on the two victims may not have directly overlapped, they were reasonably proximate. There was no error.
The defendant also faced charges with respect to a third alleged victim, A.V. A.V. is the younger sister of R.U. The defendant challenges the joinder of the charges concerning A.V. as well, on the ground that the alleged assault of A.V. was too distant in time from those on Q.B. and R.U. At trial A.V. testified that on one occasion the defendant allegedly rubbed her leg and thigh while she was on the defendant's couch. According to the Commonwealth's motion for joinder, the incident would have occurred approximately nine years after the last assaults on Q.B. and R.U. However, the defendant was acquitted of the charges concerning A.V. The defendant has not shown prejudice from the joinder of the charges related to A.V.
Judgments affirmed.
Order denying motion for new trial affirmed.