Opinion
No. 12–P–96.
2013-02-26
COMMONWEALTH v. Steven M. PUTNAM.
By the Court (GREEN, GRAHAM & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 1, 2006, the defendant was convicted by a Superior Court jury of home invasion, armed assault in a dwelling, rape (digital penetration), and assault and battery. On his direct appeal, this court affirmed. See Commonwealth v. Putnam, 75 Mass.App.Ct. 472 (2009). The Supreme Judicial Court denied further appellate review. See Commonwealth v. Putnam, 455 Mass. 1105 (2009).
On September 14, 2011, the defendant filed a pro se motion for a new trial which was denied by a motion judge who was not the trial judge. On appeal, he argues that the prosecutor engaged in a “pattern of gender discrimination in the selection of the jury”; that the trial judge allowed in evidence improper first complaint testimony; that the trial judge improperly allowed the jury to review a portion of the trial testimony; and that his trial and appellate counsel were ineffective. For substantially the reasons set forth in the brief of the Commonwealth at pages 8 through 31, we affirm. We add the following observations.
Background. In 2004, the defendant, a handyman who occasionally performed work for the victim, a psychiatrist, went to the victim's house, ostensibly seeking help in finding a detoxification program. Once inside the house, the defendant, armed with a knife, grabbed the victim, and after a struggle, while fully clothed, began trying to “hump” her and partially disrobed her. The defendant stopped and ordered the victim to fully disrobe, but, while he was himself disrobing, the victim ran to her neighbor's house, naked from the waist down.
The following day the defendant was arrested. He claimed that, after seeking the victim's counsel, he merely sought to have consensual sex with her. He further claimed that, although he was in possession of a knife, he never threated the victim with it and, in fact, tried to give her the knife for fear he would cut his wrists with it.
Discussion. 1. Waiver. The defendant has waived all of his claims made in this appeal by failing to raise these available claims in his direct appeal, see Commonwealth v. Randolph, 438 Mass. 290, 293 (2002); therefore, we review his claims to determine whether he has shown error that created a substantial risk of a miscarriage of justice. Id. at 294–295.
2. Jury selection. The defendant argues that the Commonwealth systematically challenged potential female jurors on the basis of gender. However, the defendant did not object to any of the peremptory challenges by the prosecutor, and the jury that were ultimately seated comprised seven men and seven women. The defendant has not shown that the prosecutor's use of peremptory challenges was improper, see Commonwealth v. Smith, 450 Mass. 395, 406 (2008) (prosecutor's use of peremptory challenges presumed proper), nor has he demonstrated that the empanelment process resulted in prejudice to him.
3. First complaint issues. The judge did not err in allowing the victim's neighbor to testify as to the victim's appearance and demeanor when she sought refuge in his home after the defendant's attack. The evidence was properly allowed as direct evidence of the witness's observation of the victim. Nor did the judge err in allowing in evidence certain entries in the victim's hospital records, which the defendant now claims constituted improper “back door” first complaint evidence. See Commonwealth v. King, 445 Mass. 217 (2005).
In Commonwealth v. King, 445 Mass. at 243, the court held that only one witness could attest to a sexual assault victim's disclosure of abuse and, “[w]here feasible, that single complaint witness will be the first or initial complaint witness, i.e., the person who was first told of the assault, and may testify to the details of the alleged victim's first complaint of sexual assault....”
Part of the defendant's trial strategy was to discredit the victim by highlighting alleged inconsistencies between her trial testimony and previous statements made by her to the police and to medical personnel. Consequently, the Commonwealth was entitled to admit relevant entries in the hospital records to rebut those challenges, see Commonwealth v. Kebreau, 454 Mass. 287, 298–299 (2009), and to present a fair and accurate picture of its case. Commonwealth v. Arana, 453 Mass. 214, 228–229 (2009) (first complaint doctrine “is not intended to be used as a shield to bar the jury from obtaining a fair and accurate picture of the Commonwealth's case-in-chief”).
4. Jury transcript. The trial judge did not err in providing the jury with a portion of the transcript of testimony where the term “hump” was used. It was well within the judge's discretion to allow the jury to read the requested portion of the victim's testimony. Commonwealth v. Stockwell, 426 Mass. 17, 24 (1997) (judge is in best position to weigh risk that jury may overemphasize certain aspects of the case).
5. Ineffective assistance of counsel claims. The defendant argues that his trial and appellate lawyers provided him with ineffective assistance of counsel. Under the familiar Saferian standard, to prevail on a claim of ineffective assistance of counsel, the defendant bears the burden of showing that there has been “serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,” and that such failing “likely deprived [him] of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant's chief complaints with trial counsel relate to a failure of counsel to object to evidence that we have determined to have been admitted properly. In addition, he claims that trial counsel was ineffective for not objecting to the prosecutor's use of the phrase “I would suggest” in his closing argument. Contrary to the defendant's argument, the use by the prosecutor of that phrase does not constitute improper vouching for the Commonwealth's witnesses. See Commonwealth v. Silva, 401 Mass. 318, 329 (1987).
The defendant's chief complaint with appellate counsel is that counsel failed to challenge the convictions of rape and assault and battery on direct appeal. See Commonwealth v. Putnam, 75 Mass.App.Ct. at 472 n. 1. However, he has failed to demonstrate that such an appeal would not have been futile.
Accordingly, the order denying the defendant's motion for new trial is affirmed.
So ordered.