Opinion
13-P-1007
02-29-2016
COMMONWEALTH v. HENRY MARTINEAU.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, Henry Martineau appeals from his convictions of assault with intent to rape, G. L. c. 265, § 24, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b), the denial of his motion for new trial, and the denial of his motion for reconsideration of the denial of the motion for new trial. The defendant contends that (1) trial counsel was ineffective for multiple reasons, and the motion judge erred by denying his motion without an evidentiary hearing; (2) first complaint testimony was erroneously admitted at trial; and (3) it was error to admit evidence of the defendant's prior bad acts. We affirm.
1. Ineffective assistance. We review the defendant's claims of ineffective assistance under the familiar Saferian standard. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Further, "we regard ourselves in as good a position as a motion judge who was not the trial judge to assess the trial record[,] . . . [and where] a motion for a new trial is constitutionally based, we exercise our independent judgment on the ultimate factual and legal determinations." Commonwealth v. Lykus, 451 Mass. 310, 325-326 (2008) (citations omitted).
a. Waiver of defendant's right to testify. The defendant contends that counsel was ineffective because he failed to object to the trial judge's ruling on the admissibility, for impeachment purposes, of the defendant's time-barred prior conviction. As a result, the defendant claims, he did not waive his right to testify knowingly and voluntarily. See Commonwealth v. Lucien, 440 Mass. 658, 671 (2004). To sustain this claim, the defendant must "prove, by a preponderance of the evidence, that, but for his counsel's erroneous advice concerning the admissibility of his [criminal] record, he would have testified in his own defense." Ibid., quoting from Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 642 (1990).
The motion judge concluded, and we agree, that "[t]here is no dispute that the [defendant's] 1988 robbery conviction should not have been deemed admissible under G. L. c. 233, § 21." The motion judge went on to decide, however, that the defendant's assertion -- that but for this error he would have testified in his own defense -- was not credible or persuasive.
"A judge is not required to accept as true the allegations in a defendant's affidavits." Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015), quoting from Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2002). The judge did not abuse her discretion in finding the defendant's claims less than credible on the basis of the affidavits. First, it is apparent from the record that the initial disinclination to testify came before the judge's decision on the admissibility of the prior conviction. Second, there were other sound, strategic reasons why the defendant would have chosen not to testify, such as avoiding cross-examination, all of which were discussed with the defendant before the judge's ruling. See Commonwealth v. Roderick, 429 Mass. 271, 274-275 (1999). Finally, although the defendant's affidavit in support of his motion for new trial stated that he would have testified had the judge not found his prior conviction admissible, trial counsel's affidavit is silent on the matter. "'[T]he judge may take into account the . . . failure to provide pertinent information from an expected and available source.' Such a failure 'speaks volumes.'" Vaughn, supra at 405, quoting from Commonwealth v. Goodrich, 442 Mass. 341, 354 (2004). This is especially so where counsel "accepted some fault in the same affidavit as to the claimed ineffectiveness for not calling [a witness] to testify." Lucien, supra at 672.
Defense counsel told the trial judge that he had called his final witness. The judge asked counsel if the defendant had elected not to testify. Defense counsel responded, "I will ask him once again, Judge; if not I think . . . it may be best to have a colloquy, to say so much on the record that, you know." The judge noted that he had not yet "been asked to exercise [his] discretion to decide what's admissible and what's not" for impeachment purposes. After defense counsel completed his questioning of the witness, the judge then heard the parties on whether any of the defendant's prior convictions would be admissible, and made his ruling, after which the defendant declined to testify.
Trial counsel acknowledged this risk during a side-bar discussion with the trial judge, "I would tell you quite frankly that [the defendant] and I have discussed what I told him is a minefield for any defendant in a situation such as this with his record, that it's very easy to ask 'Did you do that?' . . . And occasionally people can slip into 'I wouldn't do that.' And past experience has been once a person says that, the government stands up and says, hey, he wouldn't do that? That means he's not the type of person [who] wouldn't have accomplished that but he did accomplish that; he has prior rapes and he has prior assault and batteries, and I can't tell him how the [c]ourt would rule relative to that in advance, where should he inadvertently, and it's easy to do, make that statement: 'I wouldn't do that' instead of 'I didn't do that.'"
For this reason the judge was also within her discretion in denying the motion without an evidentiary hearing. "The decision to hold an evidentiary hearing on a motion for a new trial is 'left largely to the sound discretion of the judge.' Only when the motion and affidavits raise a 'substantial issue' is an evidentiary hearing required." Vaughn, supra at 404 (citations omitted). "In determining the adequacy of the defendant's showing, the motion judge may consider whether the motion and affidavits contain credible information of sufficient quality to raise a serious question." Ibid. The defendant's affidavit was belied by the trial transcript. Counsel's affidavit was silent as to any link between the conviction and the defendant's decision not to testify, and nothing appears in the affidavits to suggest a failure to cooperate by trial counsel. See id. at 405. Contrast Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014) (where an affidavit from successor counsel attested to noncooperation of trial counsel, judge could not largely rely on absence of an affidavit in denying an evidentiary hearing). The judge did not abuse her discretion.
b. Failure to call an available witness. The defendant contends that counsel's failure to call Brendan Durkin, Jr., a private investigator hired by the defendant's former trial counsel, constituted ineffective assistance of counsel. "Where, as here, the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was 'manifestly unreasonable when made.'" Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
Counsel's decision to forego calling Durkin as a witness was not manifestly unreasonable. Counsel submitted an affidavit stating that he decided, "for tactical reasons," not to call Durkin as a witness, even though Durkin would have, presumably, testified to certain inconsistent statements made by Anna. Counsel believed that, had the inconsistent statements come in through Durkin, the Commonwealth might have been permitted to cross-examine Durkin regarding "all of [Anna's] statements to [Durkin] that were consistent with her trial testimony and statements to others." See Commonwealth v. Aviles, 461 Mass. 60, 75-76 (2011) (verbal completeness); Mass. G. Evid. § 613(b)(2) (2015) (prior consistent statement). Further, where counsel's and Durkin's affidavits contradicted the defendant's, there was no abuse of discretion in denying this aspect of the motion without an evidentiary hearing. See Kolenovic, supra.
A pseudonym.
The defendant also argues that trial counsel was ineffective for not calling Durkin to testify where counsel promised in his opening statement that Durkin would testify. Counsel told the jury that they would hear testimony that Anna spoke with an investigator and said that the blood found in the police car was "probably menstrual blood." Counsel tried to elicit this testimony from Anna, but was ultimately unsuccessful. Counsel did point out other inconsistencies in Anna's testimony, and also introduced in evidence the medical records, noting that she had had her period the day before, a contested issue at trial. All of this evidence was highlighted by counsel in his closing argument. The decision not to call Durkin was supported by "strategic justifications," and the inability of counsel to elicit such testimony from Anna was "beyond trial counsel's control." See Commonwealth v. Garvin, 456 Mass. 778, 791 (2010).
2. Cumulative first complaint testimony. The defendant maintains that it was reversible error for the trial judge to admit both the recording of Anna's 911 call and the parts of Officer Cook's testimony about Anna's statements to him concerning the incident. At trial, the judge allowed the Commonwealth to admit the recording of the 911 call as an excited utterance and the testimony of Officer Cook as a first complaint witness. The defendant objected to Officer Cook's testimony on different grounds in a motion in limine, but consciously choose not to object to Officer Cook's testimony at trial for strategic reasons. We therefore review for a substantial risk of miscarriage of justice.
We agree with the defendant that it was error to admit Officer Cook's testimony under the first complaint doctrine, as the 911 call came first in time. See Commonwealth v. McCoy, 456 Mass. 838, 845 (2010) ("Under the first complaint doctrine, only one complaint witness, generally the first told, is permitted"). For multiple reasons, however, we do not agree that the admission of Officer Cook's testimony created a substantial risk of miscarriage of justice.
"[W]hile the first complaint doctrine prohibits the 'piling on' of multiple complaint witnesses, it does not exclude testimony that is otherwise independently admissible and serves a purpose 'other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations.'" Ibid. (citation omitted). Defense counsel did not object to the admission of the statements for strategic reasons. See id. at 852-853. In his affidavit, trial counsel stated that he did not object to the admission of Officer Cook's testimony because he thought that much of the testimony would otherwise be admissible, and further, that Officer Cook would be the only person who could testify to the blood found in the police car, which defense counsel would argue was inconsistent with Anna's account of the incident. That Anna fabricated the incident was at the heart of the defense, and the defendant received the benefit of Officer Cook's testimony to the extent that it highlighted several inconsistencies with Anna's account of the incident. See ibid. Trial counsel correctly assessed the legal landscape. Given this defense, which counsel described in detail in his opening statement, the evidence would have been independently admissible on rebuttal. See Aviles, 461 Mass. at 70. Even if some portion of Officer Cook's testimony were inadmissible, "[w]here the inconsistencies contained in the cumulative first complaint testimony were more important to the defense than the Commonwealth, there is no harm to the defendant." McCoy, supra at 851.
For example, Officer Cook testified that Anna told him that her husband grabbed her by the throat and tried to insert a glass bottle into her vagina. Defense counsel later introduced testimony, on direct examination of an emergency medical technician (EMT) who responded to the scene, that the EMT's report stated that "[the defendant] held [Anna] down by [her] thighs and inserted a bottle into her vagina. [Anna] stated she is bleeding from [her] vagina and has pain on upper thighs where she was held down." In his closing argument, defense counsel highlighted that Anna made inconsistent statements which, he argued, "is reflective . . . of her credibility" especially considering "who they're made to, how they're made and under what circumstances those occurred."
3. Prior bad acts. The defendant contends that it was error for the judge to admit testimony from Anna, over objection, that, on several occasions prior to the incident the defendant gave Anna wine, she fell asleep, and later woke up to find that her "private parts" were sore.
"Evidence of a defendant's prior . . . bad acts is inadmissible to demonstrate bad character or propensity to commit the crime charged." Commonwealth v. Walker, 442 Mass. 185, 202 (2004). However, the evidence "may be admissible, if relevant, to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive." Ibid., quoting from Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994).
The evidence of prior bad acts properly was admitted to show a common scheme or course of conduct, unique in nature, and "sufficiently related in time, place, and form to the charges being tried." Walker, supra at 202 (properly admitted prior bad acts evidence that the defendant, on a number of occasions, gave the victim an alcoholic beverage, after which she fell asleep and later woke up knowing that she engaged in sexual intercourse because she was "all wet down there"). "With relevance established, we are left with a case where the judge could properly determine that any possible prejudice from the bad act evidence did not outweigh its probative value." Commonwealth v. Butler, 445 Mass. 568, 576 (2005). See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014). Additionally, "any prejudice from [Anna's] testimony was sufficiently ameliorated by the judge's limiting instructions, given . . . during the final instructions." Walker, supra at 202.
Judgments affirmed.
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Hanlon, Sullivan & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 29, 2016.