Opinion
18-P-1319
04-09-2020
COMMONWEALTH v. Adam T. LICCARDI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Adam T. Liccardi, was convicted after a jury trial in the Superior Court of two counts of aggravated vaginal rape and one count of aggravated oral rape. The defendant appeals from his convictions and the order denying his motion for a new trial. "In the view we take of the case, we need consider only the appeal from the denial of the defendant's motion for a new trial." Commonwealth v. Gallarelli, 399 Mass. 17, 18 (1987). We affirm the judgments, and for the reasons that follow, we vacate only a portion of the order denying the defendant's motion for a new trial and remand that portion of the case for findings and proceedings consistent with this memorandum and order; the remainder of the order denying the defendant's motion for a new trial is affirmed.
The jury acquitted him of one count of aggravated anal rape.
Therefore, we do not address the defendant's contention that parts of the Commonwealth's closing argument were improper, including that the victim "has no reason to lie and it's clear from the evidence that she didn't," which he raises on direct appeal but did not raise in his motion for a new trial.
1. Background. A rational jury could have found the following facts, reserving some facts for later discussion. On October 12, 2012, a freshman woman (hereafter, the victim) at the University of Massachusetts Amherst (UMass) began her Saturday night by drinking alcohol at dinner in a dining hall. As the evening continued, she drank hard liquor and beer, and smoked marijuana. By midevening, the victim was intoxicated, eventually so intoxicated that she could not walk or even sit without assistance.
During the evening, four of her friends from Berkshire County, whom she had met the previous summer, arrived at UMass uninvited. They were Justin King, Caleb Womack, Emmanuel Bile, and the defendant, Adam T. Liccardi. Another student signed the four men into the victim's dormitory, Pierpont Hall.
Even though the victim had not invited the men, when they appeared on her dormitory floor, she and two friends, Karyssa Youngs and Jessica Russo, who were roommates with each other, socialized with the men, in various combinations, in her room, Youngs's and Russo's room, and elsewhere on the dormitory floor. The victim and others continued to drink alcohol. After Youngs and Russo said good night to the men and went to sleep in their room, the four men sexually assaulted the victim in her room while she passed in and out of consciousness. The defendant raped the victim vaginally and orally. The defendant admitted at trial that one of his friends raped the victim. He further testified that thereafter, the other three men left while he stayed to calm the victim down. Later that night, she awoke to the defendant raping her vaginally a second time.
2. Discussion. a. Requested evidence. Prior to trial, the defendant filed a discovery motion in which he requested any evidence relating to a "civil lawsuit" that the victim may have brought against the defendant or UMass. At a pretrial hearing held on July 26, 2013, the prosecutor informed the court that she had spoken with the victim's private attorney and the attorney for UMass and that neither had any documents that were covered by the defendant's motion. Defense counsel added that "if at some point a presentment letter is sent to the Attorney General," he expected that the defense would receive it. No objection was made by the Commonwealth. Furthermore, at the conclusion of the same hearing, the Commonwealth represented that it was "in agreement" to provide communications "that involve a potential lawsuit essentially." Viewed in conjunction with defense counsel's specific request for a "continuing order" that he be provided any presentment letter sent to the Attorney General or UMass, the record shows that there was indeed a specific request within the meaning of our precedent.
The following year, a presentment letter was sent to the Attorney General's office with copies to various officials at UMass. The presentment letter was not disclosed prior to the defendant's trial. At oral argument, the Commonwealth, to its credit, acknowledged that it had agreed to turn this letter over to the defense prior to the trial, and that the failure to do so was error.
In denying the defendant's motion for a new trial that was based in part on this error, the judge ruled that the defendant's pretrial discovery request was a general and not a specific request for discovery, and that although the presentment letter could have been used to support the defendant's argument that the victim had a financial motive for testifying as she did, the information "would not have materially aided the defense." The judge reached this conclusion based on his assessment of the credibility of the witnesses, the strength of the evidence at trial, his determination that the letter "would not have corroborated the defendant's story," and his determination that the letter "would not have materially aided [the] defense."
We think the judge erred in viewing a presentment letter, which is a statutory prerequisite to filing a civil suit against a governmental unit, such as UMass, see G. L. c. 258, § 4, as an item of discovery that was not included in a request for any evidence of a "civil lawsuit." The defendant's discovery motion (which was allowed by agreement) combined with the absence of an objection by the Commonwealth to the defendant's ongoing request to be provided any presentment letter, provided the Commonwealth with notice that it had an obligation to disclose the presentment letter to the defense. See Gallarelli, 399 Mass. at 22. When a specific request for the disclosure of exculpatory evidence is made but not honored by the Commonwealth, "the reviewing judge must set aside the verdict and judgment unless his conviction is sure that the error did not influence the jury, or had but very slight effect" (quotation and citations omitted). Id. at 23. See Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992) ("the standard to be applied when the prosecution has denied the defendant specifically requested exculpatory evidence ... [is whether] a substantial basis exists for claiming prejudice from the nondisclosure"). That decision should be made in the first instance by the judge who presided over the trial and who is in the best position to assess the impact the evidence may have had on the jury. See Commonwealth v. Grassie, 482 Mass. 1017, 1018 (2019).
The Supreme Judicial Court has stated that there is "a discretionary range in cases like this within which the trial judge may properly award a new trial, even if a new trial is not constitutionally required and even if we would not have granted a new trial on our own assessment of the record." Tucceri, 412 Mass. at 409. On the record before us, we cannot be certain that the judge exercised his discretion based on the correct legal standard. The question for the judge is not what impact, if any, the nondisclosed evidence had on the judge's assessment of the evidence at trial, but rather "what effect the omission might have had on the jury." Id. at 411. For this reason, we vacate only so much of the order denying the defendant's motion for a new trial as held that the presentment letter would not have materially aided the defense, and remand that issue to afford the judge, who was the trial judge, an opportunity to determine, in the exercise of his discretion, "the effect that the omitted evidence would have had ... on the collective or individual judgments of twelve lay people." Id.
To be clear, we do not hold that any of the judge's findings were clearly erroneous, and we acknowledge the broad discretion that the motion judge, who was also the trial judge, has in deciding a motion for a new trial. We hold, only, that where the judge erred in determining that there was no specific request for the presentment letter, and thus appears to have applied an incorrect standard in evaluating this particular issue, a remand is required to enable the judge to decide the issue under the correct standard.
We address the remaining issues encompassed by the defendant's motion for a new trial.
b. Cell phone evidence. The defendant argues that his trial counsel was ineffective for failing to move to suppress the call log from his cell phone, on the grounds that UMass police lacked probable cause to seize it, lacked authority to do so while off-campus, and delayed obtaining a warrant to search the phone for forty days. "Where the claimed omission in ineffective representation is the failure to file a suppression motion, the inquiry involves dual assessments. [T]he defendant must show that the constitutional claim has merit and that there was a reasonable possibility that the verdict would have been different without the excludable evidence" (quotation and citations omitted). Commonwealth v. Anderson, 58 Mass. App. Ct. 117, 127–128 (2003). We need not reach the merits of the defendant's claim about the off-campus seizure of his cell phone and the delay in searching it because he has not demonstrated a reasonable possibility that the verdicts would have been different without the call log on his cell phone.
We conclude infra that the police had probable cause to seize the defendant's cell phone.
The call log indicated that the defendant called Bile once and Womack twice on October 15, 2012. The Commonwealth's position was that by telephoning Bile and Womack, the defendant participated in conversations that the other three men were having by text message on October 14 through 17, 2012, about how to respond to the victim's allegation that they had raped her, even if he did not respond to all the text messages by texting himself. The Commonwealth also argued to the jury that the defendant, by restricting his texting, was conscious that text messages could help prove his guilt.
The Commonwealth's argument that it could have obtained the same information from the phones of the others who participated in the sexual assaults falls short because the Commonwealth had information from Bile's phone, but not from Womack's phone.
The defendant has not established a reasonable possibility that the verdicts would have been different without the call log for multiple reasons. The text exchanges, which were retrieved from Bile's cell phone, were not group texts, with the three men, minus the defendant, conversing. Rather, Bile texted separately with Womack, King, and the defendant, who did participate in exchanges with Bile, sending six text messages. Bile and King conveyed to each other by text what the defendant had said and opined, so the jury knew, without the call log, that the defendant had been in contact with the others.
The defendant further argues that his trial counsel was ineffective for failing to move to suppress his statement to the UMass police on the ground that he agreed to talk to the police because an officer had seized his cell phone illegally and he was trying to get it back. Therefore, he argues, his statement was the "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488 (1963). The defendant's argument fails on the merits, see Anderson, 58 Mass. App. Ct. at 127, both factually and legally. The officer with whom the defendant spoke did not say that he would try to get the defendant's phone back, as the defendant himself acknowledged. Nor did police seize his phone without probable cause. By the time they seized it, Bile had already told the police about an attempted telephone call to the defendant's cell phone and texts to it, which was "particularized evidence related to the crime," establishing "probable cause to seize or search the device in pursuit of that evidence" (quotation and citation omitted). Commonwealth v. White, 475 Mass. 583, 589 (2016).
The judge properly denied the defendant's motion for a new trial based on his trial counsel's failure to move to suppress both the call log and the defendant's statement that was allegedly the fruit of the poisonous tree.
c. Subsequent complaint witnesses. Under the first complaint doctrine,
"the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint. The witness may also testify about the details of the complaint .... Testimony from additional complaint witnesses is not admissible."
Commonwealth v. King, 445 Mass. 217, 218-219 (2005). The defendant argues that three subsequent complaints were admitted in violation of the first complaint doctrine. We disagree and discuss them in turn.
In the morning of October 13, 2012, Russo was in the dormitory hall when the victim said, "They all gang banged me last night." Russo ushered the victim back to her room, where the victim said, "They all raped" her last night. The victim said that the defendant had stayed after the other three men had left and "raped" her again. The defendant did not object to this first complaint during the trial and its admission is not directly part of the motion for a new trial.
On October 17, 2012, at 2:45 p . m ., Bile told police that as the three men, minus the defendant, left UMass on October 13, King tried calling the defendant on the defendant's cell phone. Bile also told police that he had communicated with the defendant and others by text about the victim's demand for $500. Later that day, at 5:30 p . m ., the police, including one detective who had interviewed Bile, met with the defendant. By then, they had probable cause to believe that the defendant's phone contained evidence.
During cross-examination and recross-examination, the defendant challenged whether Russo had used the word "rape" when she had spoken with a UMass detective on October 15, 2012. In a second redirect examination, Russo testified briefly that she had told the detective that the victim had used the word "rape" in a conversation with Russo and Youngs -- that is, not in the conversation that Russo had in the hall and the victim's room. Because this testimony was "part of the Commonwealth's response to the defendant's theory" that Russo had not used the word "rape" in conveying the victim's words, it was admissible. Commonwealth v. Aviles, 461 Mass. 60, 70 (2011). Furthermore, the defense lawyer did object to it, contrary to the defendant's argument.
It is unclear whether Russo quoted or paraphrased the victim's statement.
On appeal, the defendant also discusses Russo's testimony that the victim showed her a text message to Bile accusing the four men of having raped her. However, because the defendant elicited that testimony during cross-examination, it does not violate the first complaint doctrine. See Commonwealth v. Murungu, 450 Mass. 441, 447 (2008) (first complaint doctrine does not bind defendants). In addition, the discussion is part of an apparent request by the defendant that we hold Russo's first complaint testimony inadmissible, a request that is at odds with the defendant's agreement before trial that Russo's prospective first complaint testimony was proper. The request is also based on a chronological possibility that the defendant rejected in his motion for a new trial and that we do not accept.
The defendant also argues that a UMass police officer's testimony about interviewing the victim and the steps that the officer then took violated the first complaint doctrine. However, the defense lawyer specified at sidebar that he did not object to this testimony for a strategic reason. He averred in an affidavit that his strategy was to attack the victim's credibility, specifically by emphasizing that she had demanded $500 from the four men. By allowing the jury to hear the UMass officer's testimony and then cross-examining her about it, the defense lawyer emphasized the $500 demand to the jury, and did so two days before the victim testified. All of this was done in an effort to undermine the credibility of the victim. We do not assess defense counsel's performance with the benefit of twenty-twenty hindsight. See Commonwealth v. Burgos, 462 Mass. 53, 70 (2012). His "strategic ... decision" was not "manifestly unreasonable when made" (quotation and citation omitted), Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), and therefore did not constitute ineffective assistance of counsel. See id.
Finally, the defendant argues that the first complaint doctrine was violated when the sexual assault nurse examiner (SANE) testified about the victim's report about the rapes, and a redacted form that the SANE filed was admitted in evidence. The defense lawyer agreed to the admission of this evidence.
When the defense lawyer cross-examined the SANE, he elicited several points that favored the defendant, some of which were inconsistent with the testimony of the Commonwealth's witnesses, and all of which he used in closing argument. Even if the evidence was not admissible under the first complaint doctrine, the defense lawyer's "strategic ... decision" to admit evidence from the SANE was reasonable and did not constitute ineffective assistance of counsel. Acevedo, 446 Mass. at 442.
The judge properly denied the defendant's motion for a new trial based on violations of the first complaint doctrine.
d. Texts among joint venturers. The defendant argues that the texts between Bile and King should not have been introduced in evidence because the defendant was no longer part of the joint venture. The texts were largely about how to respond to the victim's demand for a total of $500 from the four men but also included a text from Bile to King stating, "Adam said [ ]he chilled her out and then fucked again so he thinks shes tryin to scare us i hope?"
The defendant.
That is, calmed her down.
"[T]he Commonwealth first must establish the existence of the joint venture (and the defendant's involvement in it) by a preponderance of the evidence, independent of the out-of-court statements" (citation omitted). Commonwealth v. Winquist, 474 Mass. 517, 521 (2016). This, the Commonwealth established. The four men together raped the victim. Three of the men left the dormitory together. King tried calling the remaining man, the defendant, but could not reach him. Bile texted the victim to ask her to tell the defendant that they would return for him. "A judge's determination as to the existence and scope of a joint venture is reviewed under the abuse of discretion standard." Id. The judge did not abuse his discretion in finding the existence of a joint venture and instructing the jury about it.
"[T]he joint venture exception to the hearsay rule does not apply to statements made after the joint venture has ended." Winquist, 474 Mass. at 522. However, "[s]tatements made in an effort to conceal a crime, made after the crime has been completed, may be admissible under the joint venture exception because the joint venture [remains] ongoing" (citation omitted). Id.
The texts established that the men continued the joint venture and furthered the joint venture so that the crimes would not come to the attention of the police. "A trial judge must give careful consideration to whether such statements actually were made both during the pendency of the cooperative effort and in furtherance of its goal" (quotation and citations omitted). Winquist, 474 Mass. at 526. Here the goal of the joint venture was that the four men rape the victim without being held accountable for their actions. Evidence that they acted with such a design includes that they turned off the light before raping a highly intoxicated woman who was unconscious. Finally, the texts proved that the defendant was still part of the joint venture. He did not disengage from Bile or the other men. He did not dissociate from them. He may have disagreed with two of the men about whether to pay the victim, but he did not stop the discussion among them.
The texts prove that the four men shared a "commonality of interests," Winquist, 474 Mass. at 526, which was the same as their goal: that the four men rape the victim and do so with impunity. The defendant was not willing to acknowledge any responsibility for any of the adverse consequences suffered by the victim because he believed mistakenly that he had not committed a crime. However, that does not mean that he did not share the other men's interests. Bile, too, may have thought that he did not commit a crime. He texted the defendant at one point, "We aren't beat" (i.e., we are not in trouble), and "She tried blackmailing us." The texts were properly admitted.
The defendant's argument that the admission of his joint venturers' texts violated his right to confrontation is also unavailing. "Generally speaking, the statements of joint venturers are ... deemed nontestimonial under Crawford v. Washington, 541 U.S. 36, 56 (2004)." Winquist, 474 Mass. at 521 n.6. See Commonwealth v. Marrero, 436 Mass. 488, 493 (2002) (joint venture exception to hearsay rule does not violate Bruton v. United States, 391 U.S 123 [1968] ).
The defense lawyer was not ineffective for failing to move to suppress evidence from Bile's phone because, among other reasons, the defendant has not shown that "the constitutional claim has merit" (quotation and citations omitted). Anderson, 58 Mass. App. Ct. at 127. The judge properly denied the defendant's motion for a new trial as it related to the joint venturers' text messages.
e. Expert testimony. Because the victim reported having been unconscious and having blacked out during the rapes, the defendant's trial counsel successfully moved for up to $2,000 to hire an expert to testify about the difference between the two states. When he could not locate an expert to testify for that amount, trial counsel did not seek an increase in funding. The defendant argues that his trial counsel was therefore ineffective.
Under the familiar standard established in Commonwealth v. Saferian, 366 Mass. 89 (1974), we examine whether trial counsel was incompetent, ineffective, or inattentive and one or more of those flaws "likely deprived the defendant of an otherwise available, substantial ground of defence." Id. at 96. The issue here is not whether trial counsel was inattentive to the possible usefulness of an expert, but rather, whether he was ineffective for not moving for more money to pay an expert.
Trial counsel's affidavit did not specify how many experts he had contacted, how much the expert or experts would have charged, why the trial counsel did not move for higher witness fees, and how he located, after the trial, the expert witness he cited in the motion for a new trial. Because the affidavit was incomplete, the motion judge was within his discretion in denying it. A judge is warranted in dismissing a motion unaccompanied by affidavit, see Commonwealth v. Colantonio, 31 Mass. App. Ct. 299, 302 (1991) ; or one in which the factual allegations are conclusory. Cf. Commonwealth v. Coyne, 372 Mass. 599, 601 (1977).
Nor did the absence of an expert on the difference between unconsciousness and blacking out likely deprive the defendant of a "substantial ground of defence." Saferian, 366 Mass. at 96. As the motion judge ruled, such expert testimony would not have bolstered the defense when "there was credible and overwhelming evidence ... that the complainant's condition just before the sexual assaults rendered her incapable of consenting to sex."
f. Impeachment. Despite the defense lawyer's vigorous cross-examination and impeachment of the victim and other Commonwealth witnesses, the defendant argues that he was ineffective for not pursuing several possible cross-examination inquiries. We disagree.
"Generally ... failure to impeach a witness does not amount to ineffective assistance of counsel. ... [A]bsent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion" (quotation and citation omitted). Commonwealth v. Wall, 469 Mass. 652, 664 (2014). The judge properly denied the defendant's motion for a new trial based on this ground.
g. Cumulative impact of errors. The defendant argues that his convictions should be reversed because of the cumulative errors. Because we generally find no merit in the defendant's claims, except as discussed, the cumulative effect of error does not exist.
Accordingly, the judgments are affirmed. So much of the order denying the motion for a new trial on the basis of the presentment letter issue is vacated, and that issue only is remanded for findings and proceedings consistent with this memorandum and order.
The remand is necessary to allow the judge to consider the presentment letter issue in the first instance. Should the judge, after any proceedings he deems necessary, deny the defendant's motion on this issue, the defendant would be entitled to appeal from the order only on that limited issue; the remainder of his appeal has been disposed of by this panel.
--------
So ordered.
Affirmed in part; vacated in part and remanded