Opinion
No. 10–P–1809.
10-11-2016
COMMONWEALTH v. Nathan Marquis LEBARON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of sexually assaulting a thirteen year old girl whom he befriended over the Internet. The jury could have found that within thirty days of their first communication in an Internet chat room the defendant, age twenty-eight, traveled from Utah to Massachusetts to meet the victim, whom he knew to be thirteen years old. After meeting at a restaurant in Revere, the defendant took her to a motel where the defendant performed various sexual acts on the victim. The defendant was convicted of two counts of assault with intent to rape, G.L. c. 265, § 24B, two counts of statutory rape of a child, G .L. c. 265, § 23, two counts of assault and battery on a child under age fourteen, G.L. c. 265, § 13B, and enticing a child under age sixteen, G.L. c. 265, § 26C(b ). On appeal, the defendant, acting pro se, claims error on multiple grounds. Among his claims are that: (1) he was prejudiced by the grand jury presentation, (2) he was denied his right to counsel and then denied his right to represent himself, (3) his motions to suppress and for a Franks hearing should have been allowed, (4) he was denied his right to a speedy trial, (5) the prosecutor's use of the term “grooming” in closing argument was improper, (6) his trial counsel was ineffective, (7) the jury instructions were improper, and (8) jurors were biased against him. We affirm.
Discussion. 1. Grand jury presentation. For the first time on appeal, the defendant claims that he was prejudiced by a variance between the evidence presented to the grand jury and the evidence presented at trial. Specifically, he argues that the grand jury presentation related to the rape charges was limited to evidence of digital and oral penetration of the victim's vagina, but at trial the victim also testified to penetration with the defendant's penis. According to the defendant, this variance was an “illegal broadening of the indictment,” which violated his right to due process. We disagree.
“In general, a crime must be proved as charged and must be charged as proved. But a defendant is not to be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense.” Commonwealth v. Gray, 85 Mass.App.Ct. 85, 87 (2014) (quotation omitted). Here the grand jury were instructed that the first rape indictment charged that the defendant penetrated the victim's vagina with his fingers and that the second charged that the defendant had oral contact with the victim's vagina. The grand jury were further instructed that other indictments alleged that the defendant assaulted the victim with intent to commit rape by attempting to penetrate the child's vagina with his penis. Each of these indictments correctly stated the essential elements of the offense and further detailed the type of sexual contact charged. At trial, the judge clearly instructed the jury in his charge, and again in the verdict slips, that the rape charges were based only on digital and oral penetration, and the evidence of penetration or attempted penetration with the penis could be considered only on the charge of assault with attempt to rape. In these circumstances, even if the issue had been preserved by an objection at trial, there was no prejudice.
The defendant also claims that the integrity of the grand jury proceedings was affected by the Commonwealth's failure to introduce exculpatory evidence. According to the defendant, the fact that an evidence collection form used by the hospital did not include specific reference to digital and oral penetration, and the fact that the victim agreed to lie to assist the police in locating the defendant, was exculpatory evidence that the grand jury should have heard. We are not persuaded.
Prosecutors are not required to present all such evidence to the grand jury. Commonwealth v. Bradley, 35 Mass.App.Ct. 525, 530 (1993). In order to show that the integrity of the grand jury proceeding was impaired, “the defendant must show that the presentation of the false or deceptive evidence probably influenced the grand jury's determination to hand up an indictment.” Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). Even assuming that this evidence had some bearing on the victim's credibility, it did not undermine the victim's testimony such that the failure to present it impaired the integrity of the grand jury proceeding.
2. Representation. The defendant claims that he was denied his right to counsel at arraignment and, as a consequence, that he was denied his right to a probable cause hearing and a bail hearing. A review of the docket, however, reflects that the defendant was represented by counsel at all times. Attorney Hayes, from the Committee for Public Counsel Services, was appointed to represent the defendant at arraignment on September 12, 2005, in the District Court. Nothing in the record indicates any change in that status until Attorney McGovern was appointed to represent the defendant on October 28, 2005, following his indictment in the Superior Court. Attorney Mahoney entered his private appearance for the defendant on January 31, 2006. Thus, the record does not support the defendant's claim that he was denied his right to counsel at arraignment.
The defendant was indicted within thirty days of arraignment and had no right to a probable cause hearing thereafter. Lataille v. District Ct. of E. Hampden, 366 Mass. 525, 532 (1974). The record reflects that bail was addressed at arraignments in the District Court and the Superior Court, and again after private counsel entered an appearance for the defendant.
On November 16, 2006, Attorney Mahoney was permitted to withdraw due to a fee dispute with the defendant, and Attorney Sobelman entered his appearance. On January 4, 2007, Attorney Sobelman filed a motion to withdraw due to a breakdown in his professional relationship with the defendant. After a hearing, he was permitted to withdraw and the defendant requested permission to represent himself. That request was denied and Attorney Stone was appointed to represent the defendant. The defendant claims it was error for the judge to appoint Attorney Stone and that he should have been permitted to represent himself as he requested. We disagree.
While a defendant in a criminal case has a constitutional right to represent himself, that right is not unqualified. Commonwealth v. Chapman, 8 Mass.App.Ct. 260, 265 (1979). He must knowingly and intelligently invoke the right, Commonwealth v. Mott, 2 Mass.App.Ct. 47, 51 (1974), and waive his right to counsel, Commonwealth v. Jackson, 419 Mass. 716, 719 (1995). In order to make such a determination, the judge should conduct an inquiry into the defendant's motives for asserting the right and his awareness of the risks of proceeding pro se. Mott, supra at 52. Here, the judge conducted such an inquiry and found that the defendant did not sufficiently understand what it meant to represent himself and that his desire to do so was motivated by anger at his lawyers. Accordingly, she denied the request and appointed Attorney Stone. We discern no error in her conclusion.
3. Motion to suppress. On September 2, 2005, investigators obtained a warrant to search the defendant's sister's residence in Salem, Oregon. They executed the search warrant and seized documents, a computer, and a cellular telephone which, according to the sister, belonged to the defendant. The defendant moved to suppress the evidence, arguing: (1) that the four corners of the warrant application did not establish probable cause to search the residence; (2) that he was entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), because of alleged false statements the affiant made regarding the defendant's connection with his sister's residence; and (3) that the search and seizure exceeded the scope of the warrant. After a hearing, the motion judge allowed the suppression of a single document which he found to be beyond the scope of the warrant, but otherwise denied the motion to suppress and for a Franks hearing. On appeal, the defendant claims the denial was error. We disagree.
“In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). Our review of “the sufficiency of the search warrant application always begins and ends with the four corners of the affidavit.” Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) (quotation omitted).
The defendant claims that he was not living with his sister and that the warrant application did not sufficiently establish that his belongings would be at her home. The affidavit, however, stated that defendant's family members had reported he was living there, and that, at booking following his arrest, the defendant said he had been living at the residence for the past two weeks. We agree with the motion judge that this information provided a sufficient nexus between the defendant and the residence.
The defendant further claims that the affidavit contained false statements regarding his connection to the address warranting a Franks hearing to explore the affiant's veracity. The defendant is not entitled to such a hearing unless he makes a substantial preliminary showing that the affiant made intentional or reckless false statements. Franks, supra at 171. As we agree that he has failed to do so here, the defendant was not entitled to a Franks hearing. We note, however, that in an abundance of caution, the motion judge allowed direct and cross-examination of the affiant before deciding the motion. This was, in effect, a Franks hearing, after which the motion judge found no material falsehood or misstatement in the affidavit. We discern no clear error in that factual finding.
The defendant also claims that the affiant made false statements regarding the content of the electronic mail messages (e-mail) between the defendant and the victim before the sexual assault. Because this claim was not raised in the trial court, it is waived. Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004).
4. Speedy trial. The defendant claims that the delay of approximately twenty-one months between his arraignment and the trial violated his constitutional right to a speedy trial. As a threshold matter, the defendant bears the burden of establishing that the interval between accusation and trial is “presumptively prejudicial” rather than ordinary delay. Commonwealth v. Butler, 464 Mass. 706, 709–710 (2013). We are not persuaded that he has done so here. Twenty-one months between arraignment and trial is not presumptively prejudicial in a serious child rape case involving forensic testing, medical records produced via summons, and the litigation of a motion to suppress. Accordingly, we go no further.
The defendant does not argue a violation of his right to a speedy trial under Mass.R.Crim.P. 36, 378 Mass. 909 (1979). Therefore, we limit our analysis to his constitutional claim.
We note that even if the defendant had established presumptively prejudicial delay, he would not prevail under the balancing test of Barker v. Wingo, 407 U.S. 514 (1972), because the delay was due, in large part, to disagreements between the defendant and his lawyers.
5. Closing argument. The defendant claims that the prosecutor's use of the term “grooming” in his closing argument was not supported by the evidence and was therefore improper. Because the defendant did not object to the prosecutor's argument at trial, “we review his claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice.” Commonwealth v. Shanley, 455 Mass. 752, 773 (2010). Here, where there was evidence that the defendant (1) had contact with the victim through an Internet chat room, (2) talked to her almost every day online and over the telephone even after learning that she was thirteen years old, such that she developed a “crush” on him, (3) suggested that they meet in person, (4) traveled across the country to meet her, and (5) took her to a motel and engaged in sexual conduct, there was ample evidence to support an inference that the defendant was “grooming” the victim. We discern no substantial risk that justice miscarried based on the use of that term in the prosecutor's closing argument.
6. Ineffective assistance of counsel. The defendant raises numerous claims that his trial counsel was ineffective. “[T]he preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial.” Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). There is a narrow exception in cases where “the factual basis of the claim appears indisputably on the trial record.” Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994). The bases of the defendant's claims here do not appear indisputably on the record. The record is silent as to trial counsel's strategy or any explanation for his actions. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002). Accordingly, we decline to address these claims.
7. Jury instructions. Where, as here, “the defendant did not object to the jury instruction[s] at trial, we review his claim[s] to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice.” Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). “We evaluate [the challenged] jury instructions as a whole and interpret them as would a reasonable juror.” Ibid.
The Commonwealth concedes that the instructions on child enticement were inconsistent with the Supreme Judicial Court's subsequent holding in Commonwealth v. Filopoulos, 451 Mass. 234, 238–239 (2008), requiring the Commonwealth to prove, as to that offense, that the defendant was aware that the victim was underage. However, because the child enticement conviction was placed on file with the defendant's consent, no sentence has been imposed. Accordingly, there has been no final judgment from which the defendant has a right to appeal any error with respect to that conviction. See Commonwealth v. Delgado, 367 Mass. 432, 438 (1975) (no appeal until after judgment “which in criminal cases is the sentence”); Commonwealth v. Ford, 424 Mass. 709, 713 n. 2 (1997) (conviction placed on filed suspends defendant's right to appeal alleged error in proceeding).
This case does not present the exceptional circumstances that might require us to look beyond the general rule that convictions placed on file are not properly the subject of appellate review. See Commonwealth v. Prashaw, 57 Mass.App.Ct. 19, 27 (2003).
The defendant also claims error in the judge's instructions on assault with intent to rape because the term assault, although explained in the instruction on indecent assault and battery on a child under fourteen, was not separately defined in the instruction on assault with intent to rape. The instructions given by the judge on the elements of assault with intent to rape were based on the model jury instructions for attempted rape of a child rather than assault with intent to rape. See Massachusetts Superior Court Criminal Practice Jury Instructions §§ 3.2 & 3.3 (Mass. Cont. Legal Educ.2d ed.2013). This was not error because there is no material difference between them. “[A]ssault with the intent to commit a rape on an underaged child is attempted statutory rape” (emphasis added). Commonwealth v. Dunne, 394 Mass. 10, 18 (1985).
8. Juror selection. The defendant claims that three jurors were biased against him because of their prior experiences with sexual assault. Because the defendant failed to challenge the questioned jurors for cause at trial, his claims that those jurors were not impartial are waived. Commonwealth v. McCoy, 456 Mass. 838, 843 (2010).
9. Remaining claims. To the extent that we do not address the defendant's other claims, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).