Opinion
No. 11–P–125.
2013-10-28
COMMONWEALTH v. Wayne JACKSON.
By the Court (GRASSO, GRAHAM & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for a new trial in connection with multiple 1994 convictions of rape of a child and indecent assault and battery on a child under fourteen. He argues that (1) the evidence was insufficient to support each indictment, (2) a substantial risk of a miscarriage of justice arises from a jury instruction on indecent assault and battery as a lesser included offense of rape, and (3) his trial and appellate attorneys provided ineffective assistance of counsel. We affirm.
1. Sufficiency of the evidence. We agree with the Commonwealth that viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the testimony of the four child victims, Nicole, Mary, Anne, and Jane, suffices to establish that the defendant committed the rapes and indecent assaults and batteries charged in the indictments. See Commonwealth's brief at pages 11–19. Nicole's testimony sets forth two specific rapes (penile and digital) and three incidents of indecent assault and battery. Mary described four separate occasions on which the defendant raped her. Anne, the defendant's biological daughter, related two instances of anal rape. Jane recounted the instances in which the defendant indecently touched her. Corroborating and fresh complaint witnesses further buttressed the Commonwealth's case. Contrary to the defendant's claim, the specific times and dates of the offenses are not elements that need to be proved with specificity. See Commonwealth v. Kirkpatrick, 423 Mass. 436, 440 (1996). The evidence sufficed to establish that each child was under the age of sixteen at the time of the rapes and under the age of fourteen at the time of the indecent assaults and batteries.
We use pseudonyms for the children's names.
2. The lesser included offense instruction. There is no merit to the claim that that the judge erred in instructing on indecent assault and battery as a lesser included offense of the indictments alleging rape of Mary (indictments 93–11583–004 through 007). Indeed, the guilty verdicts of rape render the defendant's argument immaterial. See Commonwealth v. Serino, 436 Mass. 408, 420–421 (2002); Commonwealth v. Baro, 73 Mass.App.Ct. 218, 221 (2008) (where proved beyond reasonable doubt, jury obliged to find guilt on more serious offense). Even were that not so, we agree with the Commonwealth and the motion judge that the element of penetration, which distinguishes the greater from the lesser crime, was sufficiently in dispute to warrant the instruction. See Commonwealth v. Lashway, 36 Mass.App.Ct. 677, 683 (1994); Commonwealth v. Olivera, 48 Mass.App.Ct. 907, 908 (1999).
3. Ineffective assistance of counsel. We reject the defendant's claim that his trial and appellate attorneys provided ineffective assistance of counsel. For substantially the reasons relied on by the motion judge, the claim that trial counsel was ineffective in failing to (1) present evidence of the defendant's sexually transmitted diseases, (2) fulfill a promise of witness testimony made in opening statement, and (3) exercise a peremptory challenge falls short under both prongs of the Saferian test. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The self-serving, conclusory, and impressionistic assertions of the defendant's affidavit, even taken in conjunction with the medical notes attached to his motion, fail to raise a substantial issue that trial counsel knew of the claimed sexually transmitted disease, much less that the defendant had such a disease when the sexual abuse occurred.
There is no merit to the contention that trial counsel was ineffective in failing to call individuals identified in opening statement as character witnesses. See Commonwealth v. McMahon, 443 Mass. 409, 425 (2005). The defendant has failed to establish the significance of the testimony these witnesses would have provided or demonstrate that trial counsel's strategic decision not to call them was manifestly unreasonable. See Commonwealth v. Adams, 374 Mass. 722, 728 (1978). Nor has he explained how better work “might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
We reject the claim of ineffective assistance of counsel grounded in defense counsel's failure to challenge peremptorily a juror found impartial by the judge despite defense counsel's objection. Exercise of peremptory challenges is a strategic decision addressed to the judgment of the defendant and his counsel. See Commonwealth v. Torres, 71 Mass.App.Ct. 723, 726 (2008). Even beyond the defendant's failure to assert that he desired to challenge the juror peremptorily but was thwarted by counsel, he has not shown that failure to exercise such a challenge was manifestly unreasonable under the circumstances.
Finally, we reject the claim that appellate counsel rendered ineffective assistance of counsel by failing to raise the sufficiency of the evidence and ineffectiveness of defense counsel as issues on direct appeal. We have concluded that the evidence was sufficient and trial counsel was not ineffective in the respects raised. Accordingly, appellate counsel can hardly be deemed ineffective in failing to raise these issues.
Order denying motion for new trial affirmed.