Opinion
No. 14–P–1755.
12-16-2016
COMMONWEALTH v. Marcus W. JENKINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Marcus W. Jenkins, appeals from the judgments after he was convicted on two indictments for aggravated rape of a child, in violation of G.L. c. 265, § 23A(b), and one indictment for delivering alcohol to a person under the age of twenty-one, in violation of G.L. c. 138, § 34. The defendant also appeals from an order denying his motion for a new trial, alleging ineffective assistance of counsel. We affirm.
The defendant's direct appeal was stayed to allow him to file a motion for a new trial in the Superior Court. When the defendant's motion was denied, he filed a notice of appeal. The stay was vacated and the defendant's two appeals were consolidated.
Discussion. We review the judge's denial of the defendant's motion for a new trial to determine "whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Millien, 474 Mass. 417, 429 (2016) (quotation omitted). "The decision whether to allow a motion for a new trial lies within the discretion of the judge and will not be reversed ‘unless manifestly unjust or unless the trial was infected with prejudicial constitutional error.’ " Commonwealth v. Martin, 467 Mass. 291, 316 (2014), quoting from Commonwealth v. Nieves, 429 Mass. 763, 770 (1999). "We afford particular deference ... where the motion judge was, as here, the trial judge." Martin, supra.
On appeal, the defendant must show that his trial counsel's "conduct fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and that, but for counsel's error, something material might have been accomplished in the defendant's favor." Id. at 315, quoting from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made." Commonwealth v. Britto, 433 Mass. 596, 602 (2001).
1. Exculpatory evidence. The defendant argues that his attorney, Jack Atwood, deprived him of the effective assistance of counsel by declining to call the victim's neighbor as a witness at trial. The defendant alleges that Attorney Atwood's decision was unreasonable because the neighbor's testimony could have established that the victim had a motive to fabricate her allegations. However, "[w]hether to call a witness is a strategic decision." Ibid. The judge found that it was not manifestly unreasonable for Attorney Atwood to forgo calling the neighbor as a witness because her testimony was immaterial to the defendant's case . Furthermore, "[t]here was no evidence that the victim brought suit or had a financial stake in the outcome of the case." We, therefore, cannot say that the judge erred in concluding that the tactical decision made by counsel was not manifestly unreasonable, especially because the motion judge was also the trial judge. See Commonwealth v. Hudson, 446 Mass. 709, 723 (2006) ; Commonwealth v. Morales, 453 Mass. 40, 45–46 (2009).
The neighbor was expected to testify that the victim and her mother believed that they would receive money from a compensation program for victims of violent crimes if the defendant was convicted.
Attorney Atwood testified that he explained to the defendant that the neighbor's testimony was immaterial to his case because the money that the victim could receive was not "pain and suffering money," and the victim could apply as a victim of a violent crime even if the defendant was found not guilty.
The judge also found that "[t]he defendant ha[d] not offered any direct evidence from the victim's mother or [the neighbor] to support his claim."
The defendant also argues that it was unreasonable for Attorney Atwood to abstain from using the victim's false accusations of sexual assault against Kevin Paulo as an impeachment method. However, "[i]n general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Hudson, supra at 715, quoting from Commonwealth v. Bart B., 424 Mass. 911, 916 (1997).
Here, the judge found that it was not manifestly unreasonable for Attorney Atwood to decline to impeach either the testimony of Mr. Paulo or the victim with the victim's prior false allegations because "raising the issue would greatly bolster [Mr.] Paulo's credibility and harm [the defendant's] case," especially, where Mr. Paulo chose to "testif[y] in favor of [the victim,] his prior accuser." Moreover, any alleged harm that may have been caused by Attorney Atwood's refusal to call the neighbor as a witness or to impeach with the victim's prior false allegations was harmless. During trial, Attorney Atwood confronted the victim with several inconsistent statements and utilized these inconsistences to raise issues of the victim's credibility to support his argument that the victim fabricated the charges against the defendant. See Martin, 467 Mass. at 311. Thus, we find no error. See Britto, 433 Mass. at 603 ("[T]he decision to impeach a witness remains a tactical one in which a great amount of discretion is vested in the attorney").
As the judge noted in his decision, Attorney Atwood's cross-examination of the victim included the victim's statement to Mr. Paulo that "nothing happened" and "that the defendant wanted sex but ... what [Mr. Paulo] heard was [her] telling the defendant no, stop, I don't want to."
2. Waiver of jury trial. The defendant further contends that Attorney Atwood was ineffective as counsel because he advised the defendant to waive his right to a jury and to proceed with a bench trial without a "tactical basis for the decision." Contrary to the defendant's argument, the judge found that Attorney Atwood's recommendation was a "tactical choice[ ]" and credited his testimony as to the strategic reasons why "[h]e believed that [the defendant] had a better chance of winning a bench trial." See Commonwealth v. Bell, 460 Mass. 294, 306 (2011) (accepting motion judge's credibility determination where judge was also trial judge). Furthermore, the judge found that the defendant's waiver was voluntary and knowingly made based on his experience as the trial judge in the case and Attorney Atwood's testimony. There was no error. See Commonwealth v. Savage, 51 Mass.App.Ct. 500, 506 (2001) ("Nor would it be manifestly unreasonable for counsel to believe that an experienced judge would evaluate an alleged sexual assault upon a child more dispassionately than would a jury"). See also Bell, supra at 305–306.
Attorney Atwood advised the defendant to waive his right to a jury trial reasoning that:
"1. [The victim] was uncooperative with the District Attorney's Office; 2. Because of her uncooperative nature, and general poor presentation, she would not fare well on cross-examination; and 3. Juries, in his experience, sometimes react unfavorably to the aggressive cross-examination of a sympathetic young victim and hold that against the defense lawyer/client. Atwood believed that an experienced judge is unlikely to have that reaction."
The judge found Attorney Atwood's testimony credible that the defendant was informed that he could "override" Atwood's advice to waive a jury trial. The judge also noted that he participated in a colloquy with the defendant at trial, where the defendant stated that "he understood the differences between a jury trial and bench trial, had not been forced into making the decision, and knowingly and voluntarily decided to waive the jury."
3. Waiver of right to testify. The defendant argues that the judge committed an error of law in finding that the defendant made an informed decision not to testify. Specifically, the defendant contends that in light of Attorney Atwood's history of disciplinary proceedings regarding his failure to communicate with other clients, the judge improperly credited Attorney Atwood's testimony instead of that of the defendant. However, it is the defendant's burden to show that the "waiver of his right to testify was invalid." Commonwealth v. Lucien, 440 Mass. 658, 671 (2004). Here, the judge did not credit the defendant's testimony that Attorney Atwood refused to allow the defendant testify upon his own behalf. Instead, the judge found Attorney Atwood's testimony credible that he informed the defendant of his discretion to "override" Attorney Atwood's advice not to testify. See Bell, supra; Savage, supra. The judge further found that the defendant made an informed decision not to testify on his own behalf. Therefore, there was no abuse of discretion. See Britto, 433 Mass. at 602 ("The motion judge, who was also the trial judge, was entitled to rely on his familiarity with the trial when deciding the motion"). See also Commonwealth v. Smith, 459 Mass. 538, 551552 (2011).
The defendant relies on a public reprimand by the Board of Bar Overseers involving Attorney Atwood in which he failed to communicate with his clients or their families as to fee agreements. The defendant highlights that the reprimand refers to a prior disciplinary matter where Attorney Atwood "failed to maintain adequate communication with an incarcerated client in violation of Mass. R. Prof. C. 1.4."
Attorney Atwood testified that he gave all of his clients the same instruction:
"I make the trial decisions, but they can override my decision in three areas: One, whether they want to plead guilty or not. Two, whether they want to have a jury waived trial or not. And three, whether they want to testify or not. I tell them that I make the other decisions, but they ... can override my advice on those three factors."
Attorney Atwood testified that the defendant's expected testimony that he did not commit the alleged crimes likely would be inadmissible as self-serving testimony.
The judge also found that "[t]he defendant did not demand to testify."
Judgments affirmed.
Order denying motion for new trial affirmed.