Opinion
21-P-1112
10-18-2022
COMMONWEALTH v. HALYSSON NAVARRO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant was convicted, after a District Court jury trial, of indecent assault and battery on a child under the age of fourteen. He moved for a new trial, asserting that counsel had been ineffective by failing to call a particular witness, Adrianna Almeida, to testify. The motion judge, who was also the trial judge, denied the motion without a hearing. After the defendant moved for reconsideration, the judge held an evidentiary hearing and allowed the defendant to expand his claim to encompass counsel's failure to call two other witnesses, Rosemary (Rose) Panaro and Vera DeSousa. The judge denied the motion, and the defendant appealed. We affirm.
For convenience, we will refer to the motion for a new trial and the motion for reconsideration collectively as "the motion."
Background.
The jury could have found the following facts. In October 2017, the victim's mother, Sabrina Desouza, held a birthday party for herself. During the party, the defendant (Desouza's then-husband) went into the basement of their home, approached the victim (his step-daughter) in her bed, and put his hand on her "butt." The victim almost immediately told Desouza of this occurrence, and Desouza then confronted the defendant, who said either that he was just tucking the victim in or was just putting on her pajamas. Desouza called her friend, Almeida, who came to the house and, at Desouza's request, asked the other party guests to leave. Almeida then took the victim to Almeida's own house for the night. Desouza and the defendant divorced sometime the following year.
Approximately one year after the incident, police interviewed the defendant and told him of the victim's allegations. The defendant responded that this was the first time he had heard the accusations.
The defense strategy, offered through cross-examination and argument, was to highlight the multiple inconsistencies between the victim's testimony, her prior statements, and Desouza's testimony, to suggest a reasonable doubt about whether the victim and Desouza remembered the events accurately and were telling the truth.
Discussion.
On appeal of a ruling on a motion for a new trial, we review for "a significant error of law or other abuse of discretion," and we "extend[] special deference to the action of a motion judge who was also the trial judge," as was the case here. Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
To show ineffective assistance of counsel, a defendant must establish that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). The reasonableness of counsel's conduct is measured by "an objective standard," and "[t]he manifestly unreasonable test ... is essentially a search for rationality in counsel's strategic decisions, taking into account all the circumstances known or that should have been known to counsel." Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478 Mass. 189 (2017). "[T]he burden of proving ineffectiveness rests with the defendant." Commonwealth v. Montez, 450 Mass. 736, 755 (2008). S
1. Adrianna Almeida. The defendant first argues that counsel, Diana Chea, was ineffective in failing to call Almeida as a witness at trial. The defendant supported his motion with an affidavit from Almeida stating that when she spoke with the victim that night, the victim "did not appear scared, mad, or upset" and, instead, "seemed wholly uncertain about whether [the indecent assault] actually happened, whether she was dreaming, or whether the defendant had just been tucking her in for bed." Almeida's affidavit further stated that she spoke to the defendant the next day and again on a later occasion, and, both times, the defendant denied any inappropriate touching. Almeida stated that she had been interviewed by police, and would have testified at trial, but had never spoken directly to defense counsel and was not asked to testify.
Because the motion relied heavily on the fact that the jury never heard Almeida's testimony about the possibility that the victim was dreaming, a critical question at the evidentiary hearing was whether Chea knew that Almeida might testify to that effect. The hearing included the testimony of Dennis Driscoll, a private investigator retained by Chea, that (1) he interviewed Almeida; (2) Almeida told him that the victim had said that she was unsure whether she had been sleeping at the time of the incident and "maybe it was a dream"; and (3) he (Driscoll) relayed this information to Chea before trial.
Notably, Almeida's affidavit did not state that the victim herself had said she might have been dreaming; rather, Almeida reported her own observations about the victim's demeanor.
Chea, however, testified that Driscoll had not relayed this information to her. She further stated that Driscoll's account to her of what Almeida had told him was consistent with what Almeida had told police, as recounted in a police interview report that Chea had read. Chea testified that after discussing the matter with her co-counsel at trial, Ryan Sullivan, she made "a tactical decision" not to call Almeida to testify, because Almeida would not add anything to the defense.
After the hearing, the judge found as fact that Driscoll had not told Chea of Almeida's potential "dream" testimony and thus Chea was unaware of it and did not consider it when she decided not to call Almeida as a witness. The judge also concluded that Almeida's testimony, although it could have helped the defendant in some respects, also carried several risks. First, it would have repeated for the jury that the victim had promptly reported an indecent assault to her mother, Desouza, contrary to the "legitimate goal of trial counsel to reduce the number of witnesses who testified to reports of the assault." Second, by corroborating the timing of the incident, it would have undercut the defense argument that Desouza's approximately ten-month delay in reporting the assault to the police created doubt about Desouza's credibility. Third, Almeida's testimony about her conversation with the defendant the day after the incident, during which the defendant denied the allegations, would have contradicted the defendant's statement to the police that he had not heard the allegations until they interviewed him almost a year after the party. The judge concluded that on balance, based on what Chea and her co-counsel Sullivan knew at the time of trial, Chea's decision not to call Almeida was rational and not manifestly unreasonable. On appeal, the defendant argues that the judge gave too much weight to the harm that Almeida's repetition of the timing and substance of the victim's allegations would have done to the defendant's case. The defendant asserts that the testimony would have done no more harm to his case than had already been done by the testimony of the victim and Desouza about the former's complaint to the latter. But this argument ignores the Supreme Judicial Court's recognition that multiple complaint witnesses "may unfairly enhance a complainant's credibility as well as prejudice the defendant by repeating for the jury the . . . details of an alleged crime." Commonwealth v. King, 445 Mass. 217, 243 (2005), cert, denied, 546 U.S. 1216 (2006).
The defendant does not attack this finding as clearly erroneous, nor would the record support such a challenge, as the judge's finding turned on witness credibility.
Although the King court was referring to multiple complaint witnesses called by the Commonwealth, whereas here Almeida would have testified for the defense, her testimony would have risked the same type of prejudice.
The defendant also observes, correctly, that Almeida could not have confirmed that the assault actually occurred. But the same is true of the Commonwealth's first complaint witness, whose testimony is admitted not for the truth of the complaint but instead to assist the jury in assessing the complainant's credibility. id.. at 219, 247-248. Nevertheless, as King makes clear, more than one such witness risks unfair prejudice to the defendant.
The defendant also argues that some of the reasons Chea offered for not calling Almeida as a witness were manifestly unreasonable. But Chea's subjective reasons for her decision are not the issue; what matters is whether the decision itself, viewed objectively, was manifestly unreasonable. See Kolenovic, 471 Mass. at 674. Using that standard, and giving an added measure of deference to the motion judge because she was also the trial judge, we see no error or abuse of discretion in her conclusion that Chea's decision was not manifestly unreasonable.
These included that Chea viewed Almeida's testimony as cumulative, misunderstood Almeida's relationships with Desouza and the defendant, lacked understanding of the first complaint doctrine, and lacked confidence in her own trial skills.
We therefore need not address the judge's conclusion under the second prong of Saferian, 366 Mass. at 96, that in any event the defendant suffered no prejudice from Chea's decision not to call Almeida. The minor factual error in that portion of the judge's discussion is of no consequence.
The defendant's final claim as to Almeida is that Chea was at fault for not having learned of Almeida's potential "dream" testimony. The defendant asserts that Chea should not have relied solely on her investigator but should have interviewed Almeida herself, or else have been present when the investigator did so. But case law recognizes that defense counsel may rely on an investigator to interview potentially exculpatory witnesses. See Commonwealth v. Diaz Perez, 484 Mass. 69, 74-75 (2020), citing Commonwealth v. Alcide, 472 Mass. 150, 160 (2015). See also Commonwealth v. Moffat, 486 Mass. 193, 205 (2020) (no ineffective assistance where investigator followed up on report containing potentially exculpatory evidence). To whatever extent Chea's investigation of Almeida could be characterized as less than complete, the law is that "strategic choices made after less than complete investigation are reasonable ... to the extent that reasonable professional judgments support the limitations on investigation." Commonwealth v. Baker, 440 Mass. 519, 529 (2003), quoting Strickland v. Washington, 466 U.S. 668, 691 (1984) . The defendant has not shown how it was unreasonable for Chea to rely on an investigator who had twenty years of experience as a Boston police officer and more than ten additional years of experience in private investigations. Chea also knew that the investigator's report on his interview of Almeida, as communicated to Chea, was consistent with the report of the police interview of Almeida, making it reasonable for Chea to conclude that no further investigation was necessary.
The defendant's reliance on Commonwealth v. Phinney, 446 Mass. 155 (2006), S.C., 448 Mass. 621 (2007), is unavailing. There, counsel was held to have performed deficiently by leaving review of discovery documents to his secretary, not an experienced investigator. id.. at 162-163.
The defendant also argues that Chea performed deficiently by not allowing Driscoll to pursue certain other potential witnesses. Regardless, the defendant has not shown any resulting prejudice. See Saferian, 366 Mass. at 96.
2. Rosemary Panaro and Vera DeSousa.
The defendant also challenges the judge's ruling that Chea was not ineffective in failing to call "Rose and/or Vera" as a witness, primarily to call Desouza's testimony into question. Although Chea interviewed Rose and Vera together, we must consider Chea's decisions regarding each of them separately. Our task is made more difficult because the defendant did not make a clear record at the evidentiary hearing to distinguish between how Rose might have testified and how Vera might have testified.
Because of the similarity between DeSousa's surname and that of the victim's mother (Desouza), and because the parties and the judge referred to these two witnesses as Rose and Vera, we do the same.
From Chea's testimony, however, it appears she believed Rose could testify that the victim was angry at Desouza (her mother) that night because Desouza would not let her go to a different party; that Desouza was drunk at the party; that the defendant was not drunk; and that Rose left the party at 2 A.M. or 2:30 A.M. This testimony would have been of limited value to the defendant. Although the decision whether to call Rose was Chea's, she consulted with Sullivan before making it. And the limited value of Rose's evidence must be weighed against the testimony of Sullivan that, when the time came to decide whether to call Rose, Sullivan thought the trial was "really going well" and he did not "want to put anything in front of the jury that might go in the other direction." The judge concluded that the defendant had failed to show he was prejudiced by the decision not to call Rose as a witness, and we see no basis to reject that conclusion. As counsel correctly acknowledged at oral argument before us, Rose's testimony alone was not so significant that the failure to call her would require a new trial.
As the judge concluded, it is unclear how the victim's being upset with Desouza would have given her a motive to make a false allegation against the defendant, with whom she reportedly had a good relationship. Nor would testimony that Desouza was drunk have necessarily helped the defendant; although it could call into some question Desouza's testimony about the events of that evening, it could also have provided the Commonwealth with a convenient explanation for some inconsistencies between Desouza's account and that of the victim. As for testimony of the defendant's sobriety, he did not testify at trial and does not explain how that evidence would have materially advanced his defense. Finally, that Rose did not leave the party until at least 2 A.M., whereas Desouza testified that she had asked that guests leave the party early, would have provided only a minor ground for doubting Desouza, on a collateral matter.
Vera's testimony would have been substantially similar to Rose's, but, Chea testified, Vera also had some "collateral issues" and "preferred not to testify." Although the defendant argues that competent counsel would have summonsed Vera regardless, the matter is not so simple. Competent counsel would have had to take into account what Vera's issues were, e.g., whether she could have been readily impeached with some embarrassing information, or whether she would have been hostile to the defense in some way. The defendant did not explore this further with Chea at the evidentiary hearing. The defendant thus has not shown that the Chea's decision not to call Vera was manifestly unreasonable, as it was the defendant's burden to do. See Montez, 450 Mass. at 755.
It is possible, but not clear, that Vera could have added that Desouza had a new boyfriend shortly after the party, started dressing differently, and had plastic surgery.
Judgment affirmed.
Order denying motion for new trial affirmed.
Order denying motion for reconsideration affirmed.
Desmond, Sacks & D'Angelo, JJ.
The panelists are listed in order of seniority.