Opinion
No. 11–P–546.
2013-07-26
COMMONWEALTH v. Daniel PYNN.
By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in Superior Court of rape and indecent assault and battery. He filed a notice of appeal from the judgments and obtained a stay of appellate proceedings in order to file a motion for new trial. The trial judge denied the defendant's motion following an evidentiary hearing. On appeal, the defendant claims that (1) his motion for a required finding of not guilty on the rape charge should have been granted because the Commonwealth presented insufficient proof of force, and (2) his trial counsel provided ineffective assistance in multiple respects.
1. Sufficiency of the evidence of force. We review the denial of the defendant's motion for a required finding of not guilty to determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). To convict a defendant of rape, the Commonwealth must prove that the defendant compelled the sexual acts “by force or threat of force and against the will of the victim.” Commonwealth v. Lopez, 433 Mass. 722, 726 (2001). The defendant asserts that evidence of force was here insufficient. We disagree. There was ample evidence presented at trial, in the form of the victim's testimony, from which the jury could have found that the defendant compelled the victim to engage in oral sex by force: the victim testified that the defendant pushed her to the floor and held the back of her head while he forced her to perform oral sex. The victim said multiple times, “No. Stop. I don't want to do this.” Yet the defendant persisted. The victim testified that the defendant thrust his penis into her mouth with such force that it caused her to vomit and made her throat sore for the next four days. This evidence was more than sufficient for a rational trier of fact to conclude that the defendant used force to compel the victim to engage in oral sex against her will. See Commonwealth v. Oquendo, 83 Mass.App.Ct. 190, 193 (2013) (finding sufficient evidence of force where defendant forcibly removed victim's pants, turned her over onto her back, and caused her head to repeatedly hit the wall during the assault), citing Commonwealth v. Parreira, 72 Mass.App.Ct. 308, 314 (2008) (finding sufficient evidence of force where the defendant “nudged” the victim onto the floor, lay on top of her, and removed multiple layers of clothing without the victim's assistance, and where the victim cried and told him “no”).
2. Ineffective assistance claims.
The defendant asserts that his trial counsel was ineffective in numerous respects. We address his claims seriatim under the familiar standard; that is, “whether there has been serious incompetency” of counsel “falling measurably below that which might be expected from an ordinarily fallible lawyer,” and if so, whether it “has likely deprived the defendant of an otherwise available, substantial ground” of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The judge determined that the defendant did not meet this burden. We accord that decision “special deference.” Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996).
The Commonwealth asserts that the defendant's ineffective assistance claims are not properly before us because he failed to file a notice of appeal from the denial of his motion for new trial. Our docket reflects, however, that the “appeal from the denial of the new trial motion is consolidated with the pending appeal.”
a. Failure to subpoena key witnesses. The defendant first asserts that his trial counsel was ineffective for failing to subpoena (1) the first complaint witness, (2) the victim's father, a police officer, and (3) Nicole Styles. The first complaint witness failed to appear to testify at trial. The judge observed that this was “a favorable development for the defense, and counsel's decision to leave it thus was manifestly the right call.”
It certainly fell within the ambit of trial strategy. Similarly, we conclude, for substantially the reasons stated in the judge's thorough and well-reasoned memorandum and decision on the defendant's motion for new trial, that defense counsel was not ineffective for failing to subpoena the victim's father or Styles. See Commonwealth v. Ortega, 441 Mass. 170, 178–179 (2004) (defense counsel's failure to call certain witnesses not ineffective where defendant provided no affidavits from prospective witnesses setting forth their testimony). The decision to avoid the effect on the jury of testimony by the victim's father is especially one for which it is difficult to fault the defendant's counsel.
The defendant appears to suggest that, because the first complaint witness no longer wished to testify for the Commonwealth, she must have had information that was favorable to the defense. There are any number of reasons why the witness may have decided she did not wish to testify at trial and no reason on this record to conclude that her testimony likely would have been favorable to the defense.
The defendant also complains that counsel failed to call a character witness to testify that the defendant was a “peaceful, loving, and passive person.” We have held that trial counsel's decision not to offer character evidence generally does not establish ineffective assistance, and can be counterproductive. See Commonwealth v. McCarthy, 12 Mass.App.Ct. 722, 725–726 (1981); Commonwealth v. Medina, 20 Mass.App.Ct. 258, 261 (1985). We agree with the trial judge that defense counsel was not ineffective for failing to present a character witness in this case, particularly because it could have opened the door to impeachment.
The judge noted that Detective Browne testified during voir dire that she learned of another young woman who received text messages from the defendant, inviting her to meet him at the gym, more than two weeks after the incident involving the victim.
b. Cellular telephone records. Next, the defendant asserts that his trial counsel should have subpoenaed the victim's cellular telephone records based on the defendant's belief that the victim's cellular telephone contained exculpatory text messages. The defendant's argument completely ignores the judge's finding that the content of any text messages would have been unavailable at the time formal charges were filed against the defendant. The judge observed that most cellular telephone carriers are unable to provide the content of text messages unless they are very recent.
The defendant was indicted more than four months after the date of the rape. Regardless of the accuracy of the judge's surmise that telephone records would have been unavailable, it was the defendant's burden to show that defense counsel could have obtained the text messages at such a late date. The defendant did not sustain this burden by offering affidavits or anything more than mere speculation about the availability of the text messages.
The judge cited a case from Washington involving Verizon wherein text messages were preserved by a court order issued two days after the date the messages were sent. One of our decisions recognized that Sprint/Nextel was able to preserve text messages within fourteen days after the date the messages were sent. See Commonwealth v. Hall, 80 Mass.App.Ct. 317, 329 n. 20 (2011). The defendant has not identified the victim's cellular telephone carrier or offered affidavits from a company representative addressing whether the text messages at issue here could have been preserved.
See Commonwealth v. Horton, 434 Mass. 823, 834 (2001) (defendant's unsupported speculation about possible expert testimony failed to sustain his burden on ineffective assistance claim).
Contrary to this speculation, when defense counsel attempted to recover text messages from the defendant's cellular telephone through forensic examination, that attempt was unsuccessful.
c. Expert witness. The defendant also faults his trial counsel for failing to engage an expert to testify about the significance of the lack of physical evidence of rape, such as bruising, cuts, and swelling. There was no need for expert testimony in this case. Defense counsel “carefully and thoroughly” cross-examined Nurse Walden about the absence of physical evidence of rape. Defense counsel also addressed the issue in his opening statement and in his closing argument. The judge found that “[t]he significance of this evidence on the issues of consent and the absence of force would be obvious to a lay juror.” Indeed, the jury acquitted the defendant on two charges of rape (vaginal and anal). It is clear that the jury were presented with the issue of the lack of physical evidence of rape. The defendant was not deprived of this ground of defense by the lack of expert testimony. See Commonwealth v. Calderon, 65 Mass.App.Ct. 590, 594 (2006) (trial counsel not ineffective for failing to engage expert where he vigorously cross-examined Commonwealth's expert and used elicited testimony in closing argument).
d. Investigation of the victim's background. The defendant's final argument need not detain us. The defendant's assertion that his trial counsel failed adequately to investigate the victim's background is supported by nothing more than hearsay, rumor, and conjecture. The judge concluded that defense counsel would not have been able to obtain a subpoena on the basis of this information and had no duty to develop unsupported assertions about the victim's mental health in order to launch a generalized assault on her credibility. See Commonwealth v. Bourgeois, 68 Mass.App.Ct. 433, 437 (2007). 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”). We agree.
Judgments affirmed.
Order denying motion for new trial affirmed.