Summary
In Commonwealth v. Juliano, 86 Mass.App.Ct. 1114, 17 N.E.3d 1119 (Table), 2014 WL 4957979 (Mass.App.Ct.), amongst other errors claimed, was that defendant's counsel failed to object to errors allegedly committed during trial.
Summary of this case from Drew v. StateOpinion
No. 13–P–226.
10-06-2014
COMMONWEALTH v. Francis J. JULIANO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions of indecent assault and battery on a child under fourteen, the defendant maintains that various unpreserved errors give rise to a substantial risk of a miscarriage of justice and that his trial attorney rendered ineffective assistance of counsel by failing to object to the claimed errors. We affirm.
In particular, the defendant argues that (1) first complaint testimony from the four year old victim's mother improperly corroborated and bolstered the victim's complaint, (2) testimony regarding the defendant's unequivocal denial of the accusation was improper, (3) the mother improperly related that she had communicated the victim's allegations to other individuals, and (4) reference to a Sexual Abuse Intervention Network (SAIN) interview of the victim was improper. Viewed in context and in light of the defendant's theory that the victim's allegations of sexual assault were fabricated and a product of the mother's coaching, none of the claimed errors, either individually or collectively, gives rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Hanino, 82 Mass.App.Ct. 489, 493–494 (2012).
To the extent we do not address specifically other subsidiary points raised by the defendant, these “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
1. The mother's first complaint testimony. We are unpersuaded that the mother's testimony regarding her repeated questioning whether the victim was “sure” about the allegation of sexual assault improperly corroborated and bolstered the victim's testimony. Given the victim's very young age, we view the mother's ongoing discussions with the child during the afternoon and evening of that day as part of a single and continuous first complaint admissible for the purpose of giving the jury as complete a picture as possible of how the victim's accusation arose. See Commonwealth v. King, 445 Mass. 217, 246–247 (2005) (first complaint testimony encompasses “circumstances surrounding the initial complaint” and “other relevant conditions that might help a jury assess the veracity of the complainant's allegations or assess the specific defense theories as to why the complainant is making a false allegation”). Contrast Commonwealth v. Arana, 453 Mass. 214, 222–223 (2009). The challenged aspect of the mother's testimony did not repeat the details of the claimed sexual assault, nor unfairly enhance the credibility of the very young victim's disclosure. See Commonwealth v. Santos, 465 Mass. 689, 700–701 (2013).
Even upon objection by defense counsel, the admission of such testimony from the mother would have been within the trial judge's considerable discretion. See Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). Indeed, much of the corroboration and bolstering of which the defendant now complains arose from defense counsel's cross-examination. As suggested in his opening statement, counsel's trial strategy was to contrast the mother's professed certainty that the victim was telling the truth with her delay and need to consult with her sisters before calling the police as underpinning for his argument that the mother took advantage of the victim's suggestibility and fabricated the sexual allegation because she was angry with the defendant for insisting on paternity testing to establish whether he was the father of their baby. See Commonwealth v. Hanino, 82 Mass.App.Ct. at 496 (no substantial risk of a miscarriage of justice where defendant used challenged evidence to advance his defense).
The trial judge instructed the jury appropriately regarding the proper use of first complaint testimony both during the mother's testimony and in final instructions.
Consistent with this strategy, after the victim's direct testimony, defense counsel elicited on cross-examination that she had talked about the claimed assault with her mother many times and that her mother was “mad at” the defendant. Counsel also elicited that the victim did as her mother told because she did not want to make the mother upset.
Nor did the mother's testimony improperly vouch for the victim's credibility. Viewed in context, the challenged testimony was advanced to further the defendant's trial strategy that the mother coached the victim. See Commonwealth v. Kebreau, 454 Mass. 287, 300–301 (2009).
2. The defendant's denial of the accusation. No substantial risk of a miscarriage of justice arises from the admission of testimony that the mother and the victim confronted the defendant with the sexual assault allegation and he denied it. Even were admission of this testimony error, the denial furthered the defendant's trial strategy, announced in opening statement, that he consistently and adamantly denied ever touching the victim inappropriately. See Commonwealth v. Womack, 457 Mass. 268, 276 (2010) (generally of great value to defendant for jury “to hear evidence of his prompt, clear, and emphatic denials without his having to testify”). Beyond that benefit, by testifying that the claimed confrontation never occurred and that his argument with the mother concerned their dispute over paternity testing, the defendant bolstered his own credibility, impeached the mother's, and furthered his theory that the victim had been coached. See ibid. (“the core of any prejudice is more likely caused by admission of the accusations than the denials” because a detailed accusation improperly puts in evidence the Commonwealth's version of the facts).
We need not resolve whether, as the Commonwealth argues, the unequivocal denial rule is inapplicable when, as here, the denial is not to the police, but to the victim and her mother.
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3. The mother's testimony that she repeated the allegation to others. For substantially the reasons in the Commonwealth's brief at pages twenty-nine through thirty-four, no substantial risk of a miscarriage of justice arises from the mother's fleeting reference to the fact that her father was present when the victim discussed the sexual assault allegation, or from other fleeting and unresponsive references on redirect examination to the victim's having repeated her disclosure to an advocate, a counselor, and a Department of Children and Families worker. See Commonwealth v. Kebreau, supra at 299–300. Similarly, the mother's testimony that she reported the sexual assault to the police was proper where the defense made the time and circumstances of police involvement part of his fabrication theory. See Commonwealth v. Arana, 453 Mass. at 226–227 ; Commonwealth v. Santos, 465 Mass. at 700–701.
4. The SAIN interview. We discern no error, much less a substantial risk of a miscarriage of justice, arising from the brief mention by the mother and the testimony of Detective John Menz that the victim underwent a SAIN interview where none of the specifics of the interview came before the jury and where the evidence was necessary to address the defendant's suggestion that the mother's report formed the sole basis of the investigation and prosecution. See Commonwealth v. Arana, supra at 226–227. Contrast Commonwealth v. Stuckich, 450 Mass. 449, 456–457 (2008).
5. Ineffective assistance of counsel. We reject the defendant's contention that his attorney's failure to object to these various claimed errors amounts to ineffective assistance of counsel. “[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002). As previously discussed, from all that appears on this record, defense counsel's opening statement, cross-examination of witnesses, evidentiary presentation, and closing argument were part of a considered trial strategy to establish that the sexual assault allegation was fabricated by the victim's mother, who was angry with the defendant for insisting on paternity testing, and improperly coached the victim, who was anxious to please.
The defendant fares no better by framing his claims of unpreserved error as claims of ineffective assistance of counsel. “If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice—ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not.” Commonwealth v. Randolph, 438 Mass. 290, 295–296 (2002), quoting from Commonwealth v. Peters, 429 Mass. 22, 31 n. 12 (1999) (when claim of ineffectiveness asserts failure to preserve issue for appeal, our cases equate ineffective assistance of counsel and substantial risk of a miscarriage of justice standards).
Judgments affirmed.