Opinion
No. 13–P–1774.
11-29-2016
COMMONWEALTH v. Thomas MOORE, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Thomas Moore, Jr., was convicted on two indictments charging forcible rape of a child. He subsequently filed a motion for a new trial, which was denied in a written decision after an evidentiary hearing. On this consolidated appeal from his convictions and the denial of his motion, he contends that (1) his trial counsel was ineffective for failing to impeach the victims' testimony through purported prior inconsistent statements, (2) the admission of improper first complaint testimony created a substantial risk of a miscarriage of justice, (3) the admission of prior bad acts evidence constituted prejudicial error, and (4) the prosecutor's appeal to sympathy in closing argument created a substantial risk of a miscarriage of justice. We affirm.
The defendant was charged in three indictments with forcible rape of a child. At his first trial, a jury found the defendant not guilty on one indictment, but could not reach a verdict as to the other two charges. The trial judge declared a mistrial and, at his second trial, the defendant was convicted on both of the remaining indictments.
Background. We summarize the relevant facts, reserving more detailed discussion, in some instances, for our analysis. The defendant and the victims' mother, M.B., had known one another since first or second grade, and began dating in 1996 or 1997. M.B.'s children, Z.G. and D.G., were two and four years old at this time. Approximately one year after they started dating, the defendant, M.B., and the victims moved into an apartment together in Westfield. In 1998, they moved to a different apartment complex in Westfield, which had two bedrooms, one shared by the victims and one shared by the defendant and M.B. The defendant and M.B. married in September, 2000, when Z.G. was five years old and D.G. was seven years old.
When the defendant first entered the victims' lives, he "was really good to them, bought them things, did things with them," and the victims were emotionally close to him. The defendant also disciplined the victims. Over time, the discipline became progressively more "heavy-handed." The defendant threatened them, yelled at them, struck them with his fists, shoved them to the ground, and pulled them by their arms into his knee "until [they] couldn't breathe." He also physically abused M.B. in the victims' presence.
In or around 1998, the defendant began raping the victims. The victims testified that he anally raped them many times. The defendant would throw them onto a bed, tie socks around their eyes, and usually would strike them with a belt prior to penetrating them. On some occasions, the defendant raped the victims in the presence of the other; on other occasions, each victim was alone with the defendant. D.G. testified that he did not tell his mother about the abuse because he was nervous, embarrassed, and scared of the defendant. Z.G. testified that he did not disclose the abuse because he was afraid of the defendant, and because the defendant had threatened to beat him. Z.G. also testified that he did not want to be taken away from his mother. At trial, the defense theory was that the victims had fabricated the claims of sexual abuse.
In his motion for a new trial, the defendant raised the issues he now argues on appeal. We consider the issues in turn.
Discussion. 1. Ineffective assistance. The defendant claims that his trial counsel was ineffective because he failed to impeach D.G.'s testimony through alleged prior inconsistent statements. The thrust of his central argument is as follows: D.G. testified at trial that he told his pediatrician that he had been raped by the defendant; this testimony contradicted the evidence at the first trial that D.G. had merely told the pediatrician that the defendant had sexually assaulted him; thus, trial counsel was ineffective for failing to impeach D.G. through his prior inconsistent statements and failing to call the pediatrician to testify to D.G.'s actual statements. Accordingly, he posits, a new trial was required. We disagree.
"Motions for a new trial are granted only in extraordinary circumstances." Commonwealth v. Comita, 441 Mass. 86, 93 (2004). Where a motion for a new trial is based on ineffective assistance of counsel, the defendant must show that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96–97 (1974). "[A]rguably reasoned tactical or strategic judgments" do not amount to ineffective assistance of counsel unless they are "manifestly unreasonable" when made. Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
Here, the judge did not abuse his discretion in denying the motion for a new trial where he found that "seasoned trial counsel" made a reasonable tactical judgment not to call the pediatrician as a witness. As the judge concluded, having the pediatrician testify that D.G. disclosed that the defendant had sexually abused him would have highlighted the fact of the complaint, and would not "benefit a defense that the complainants had fabricated their claims." To the contrary, such evidence would have corroborated the victims' testimony of sexual abuse, potentially bolstered D.G.'s credibility, and supported the prosecution's theory of the case. See Commonwealth v. Fisher, 433 Mass. 340, 357 (2001) ("Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations"). See also Commonwealth v. Bart B., 424 Mass. 911, 916 (1997) ("In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance"). Moreover, such evidence could have supported an instruction for a lesser included offense of child sexual assault, which was contrary to the defendant's trial strategy. In short, the judge was warranted in concluding that trial counsel's strategic decisions were not manifestly unreasonable. He was in superior position to this court to make this determination, which was well within his discretion. See Commonwealth v. Schand, 420 Mass. 783, 787 (1995).
The defendant did not request, and the judge did not provide, an instruction on any lesser included offense to the jury.
We note the detailed and thoughtful memorandum of decision and order by the motion judge, who was also the trial judge. See Schand, supra (reversal for abuse of discretion particularly rare where judge acting on motion was also trial judge).
2. First complaint testimony. The defendant contends that Detective Bradley's testimony regarding Z.G.'s complaint created a substantial risk of a miscarriage of justice because "Bradley's testimony was based on her November 17, 2009 interrogation of [Z.G.] ... which was motivated by [D.G.'s] report, taken four days earlier...." Therefore, he posits, Bradley's testimony violated the rule that "[l]aw enforcement officials, as well as investigatory, medical, or social work professionals, may testify to the complaint only where they are in fact the first to have heard of the assault, and not where they have been told of the alleged crime after previous complaints or after an official report." Commonwealth v. King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006). We disagree.
As noted by the judge in his denial of the motion for a new trial, the defendant made "no effort to contest Bradley as the first complaint witness at trial." Z.G. testified that Detective Bradley "was the first person that [he] told about [the rape]." Asked if he had ever planned on disclosing the rape to anyone, Z.G. replied, "No," because he was "[t]oo embarrassed." On cross-examination, Z.G. confirmed that he had told Detective Bradley that he did not talk to his mother about the abuse because he "thought that she knew." This testimony supported the determination that Detective Bradley was the first person to whom Z.G. disclosed the sexual abuse. Moreover, in his denial of the motion for a new trial, the judge rejected the argument that Z.G. had discussed the sexual abuse with his mother prior to speaking with Detective Bradley. To the contrary, he concluded that "if there is such an inference to be drawn, it is weak. It would not have persuaded me that Bradley was not the first person to whom Z.G. had disclosed the abuse." The record supports the judge's determination, and we discern no abuse of discretion. Finally, we are not persuaded by the defendant's argument that Detective Bradley's first complaint testimony was "motivated by [D.G.'s] report" of sexual abuse, and thus created a substantial risk of a miscarriage of justice. We do not read the authority cited by the defendant to support this proposition. Compare Commonwealth v. McCoy, 456 Mass. 838, 844–847 (2010) (error to allow, in addition to first complaint witness testimony, three additional witnesses to testify about rape of victim; however, error did not create substantial risk of miscarriage of justice). We further note the clear limiting instruction regarding first complaint evidence provided at trial.
The defendant's argument that it was error to allow D.G.'s friend (and former girl friend) to testify as a first complaint witness is also unavailing for the reasons delineated in the judge's denial of the motion for a new trial. See Commonwealth v. Roby, 462 Mass. 398, 408 n. 13 (2012) ; Mass. G. Evid. § 413(a) & Note (2016). Moreover, as the judge found, the "weight of the evidence is that [the friend] was the first person to whom D.G. reported having been sexually abused."
3. Prior bad acts. The defendant argues that the admission of "excessive" testimony regarding his abuse of the mother in the children's presence, including evidence that the defendant pushed her, choked her, and struck her in the chest, constituted prejudicial error. We disagree.
We review the admission of prior bad acts evidence for an abuse of discretion. See Commonwealth v. Baptista, 86 Mass.App.Ct. 28, 32 (2014). "Evidence of the defendant's past misbehavior may be admissible in an appropriate case, but only if relevant for a purpose such as the defendant's pattern of conduct or his motive, or, on the other hand, the victim's state of mind." Commonwealth v. McKinnon, 35 Mass.App.Ct. 398, 404 (1993).
Here, the judge determined on the record at trial that the evidence was relevant to the issue of delayed disclosure of the sexual abuse. The judge also addressed this issue in his denial of the motion for a new trial, and concluded that the evidence was "admissible to show the state of mind of both D.G. and Z.G., to explain their hesitancy in disclosing the sexual abuse and the long delay in disclosure." The ruling constituted neither error nor an abuse of discretion. See id. at 404–405 (evidence of prior abuse admissible to show victim's state of mind, explain her long-delayed disclosure of rape, and fear of defendant). The judge also gave a limiting instruction immediately prior to the admission of the prior bad acts evidence. The defendant did not object to the comprehensive and clear instruction, and we presume the jury followed it. Commonwealth v. Williams, 450 Mass. 645, 651 (2008). Baptista, supra.
The judge instructed as follows:
"Ladies and gentlemen, there may be testimony of conduct of the defendant either toward the two children who are specified in this indictment or this witness. The defendant is not charged with committing any crime other than the two charges contained in the indictment. You may hear acts allegedly done by the defendant. You may not take that as a substitute for proof that the defendant committed the crime or the crimes charged, nor may you consider it as proof that the defendant has a criminal personality or bad character. You may consider this testimony solely on the limited issue of whether such conduct that's alleged may have deterred or delayed the alleged victims, who we refer to as the complainants, from making disclosure of the alleged sexual abuse. You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that if the defendant committed these other acts, he must also have committed the offenses charged."
4. Closing argument. The defendant claims that the prosecutor's closing argument constituted an improper appeal to sympathy based on the youth of the victims, and evidence other than the rapes. Where the defendant did not object to the closing argument at trial, our review is limited to whether the alleged error created a substantial risk of a miscarriage of justice. In his memorandum of decision and order denying the motion for a new trial, the judge found that the references to the victims' youth, and to the defendant as a "large man who was physically abusive and intimidating," addressed reasons for delayed disclosure of the rapes. He further found that the closing argument recited testimony of the witnesses, suggested proper inferences that might be drawn, and did not constitute or include an improper appeal to sympathy. We agree. Furthermore, the judge instructed that closing arguments are not evidence. We conclude that there was no error and thus no substantial risk of a miscarriage of justice.
To the extent that we have not specifically addressed subsidiary arguments in the defendant's briefs, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgments affirmed.
Order denying motion for new trial affirmed.