Opinion
14-P-1895
03-27-2017
COMMONWEALTH v. Carlos RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a Superior Court jury of indecent assault and battery on a person under fourteen, open and gross lewdness, and threat to commit a crime. His direct appeal is consolidated with his appeal from orders denying his motions for postconviction discovery and for new trial. The defendant raises three issues on appeal: (1) the denial of his motion for new trial claiming ineffective assistance of counsel; (2) the denial of his postconviction discovery motion; and (3) evidentiary claims. We affirm.
In his reply brief the defendant withdrew various other arguments set out in his original appellate brief.
Background . We recite the essential facts as the jury could have found them. In April, 2010, the ten year old victim and her brother spent the evening with their aunt, the defendant, and their two boys. The defendant was the long-term boy friend of the victim's aunt and the victim treated him like an uncle. After attending a birthday party, the defendant took the children to his apartment while the aunt went out with friends. The four children got into two twin beds pushed together in one of the bedrooms. The defendant got on the beds with the children and had the victim lay next to him. The boys fell asleep and the defendant turned on a scary movie. He started rubbing the victim's shoulder and her thigh. He tried to move his hand between her legs but the victim "got scared and locked her legs together." The defendant then pulled his penis out of his pants and put it against the victim's thigh. The defendant asked the victim if she liked it. The victim responded "no" and punched him in the chest. The victim left the bedroom crying and put on her coat, wanting to leave immediately. The defendant told her she couldn't leave and that if she told anyone what happened he would kill her and her family. She slept on the floor that night and the following day her mother picked her up.
After that evening, the victim resisted going to the defendant's apartment and would cry and plead with her parents when they wanted her to go there. The first person the victim told about the incident was her father. This happened several months later when she believed the defendant was incarcerated.
Discussion . 1. Motion for new trial . In his motion for new trial the defendant claimed that his attorney provided ineffective assistance by failing to impeach the victim with her sexual abuse intervention network (SAIN) interview and with her Department of Children and Families (DCF) records.
"When reviewing a lower court's ruling on a motion for a new trial, we ‘examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.’ Commonwealth v. DiBenedetto , 458 Mass. 657, 664 (2011), quoting [from] Commonwealth v. Grace , 397 Mass. 303, 307 (1986). See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). ‘Judges are to apply the standards set out in Mass.R.Crim.P. 30(b) rigorously,’ and ‘grant such a motion only if it appears that justice may not have been done’ (quotations and citations omitted)." Commonwealth v. Cameron , 473 Mass. 100, 104 (2015). We grant "special deference" to the rulings of a motion judge who, like the judge here, also presided at trial. Grace , supra .
"In general, failure to impeach a witness does not prejudice the defendant or constitute ineffective assistance." Commonwealth v. Hudson , 446 Mass. 709, 715 (2006), quoting from Commonwealth v. Bart B ., 424 Mass. 911, 916 (1997). Here, trial counsel attested, in an affidavit filed in support of the defendant's motion, that the decision not to use the SAIN interview to impeach the victim was a tactical decision on his part. The defendant provided no reason for the failure to make use of DCF records.
The trial judge found that this tactical decision of trial counsel was "not manifestly unreasonable." Commonwealth v. Martin , 427 Mass. 816, 822 (1998).
"When weighing the adequacy of the materials submitted in support of a motion for a new trial, the judge may take into account the suspicious failure to provide pertinent information from an expected and available source." Commonwealth v. Goodreau , 442 Mass. 341, 354 (2004).
The defendant's claim that his counsel's failure to impeach the victim with SAIN and DCF records constituted ineffective assistance of counsel fails. We must defer to the strategic decisions of counsel, and without more than the defendant's opinion, "it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion." Commonwealth v. Valentin , 470 Mass. 186, 190 (2014), quoting from Commonwealth v. Fisher , 433 Mass. 340, 357 (2001). The judge, quoting from Fisher , supra , found that the DCF records were not an " ‘obvious powerful form of impeachment’ that should have been pursued by trial counsel." Upon review we agree. As such, the suggested areas of impeachment proposed by the defendant were not so compelling as to make the decision to forego them manifestly unreasonable. See Commonwealth v. Jenkins , 458 Mass. 791, 805-808 (2011).
2. Postconviction discovery motion . The defendant contends that the judge abused his discretion in denying his postconviction discovery of the victim's school and hospital records. We review the denial of a motion for postconviction discovery for abuse of discretion. See Commonwealth v. Camacho , 472 Mass. 587, 598 (2015).
"In order to prevail on a posttrial discovery motion, a defendant must demonstrate that it is reasonably likely that such discovery will lead to evidence possibly warranting a new trial ... [and] the defendant must make a prima facie showing that the evidence sought would have materially benefited the defense." Ibid . See Mass.R.Crim.P. 30(c)(4), as appearing in 435 Mass. 1501 (2001). Here, the judge found that the assertions of the defendant in support of the discovery motion were speculative. We agree. The defendant's affidavits do not establish a prima facie case for relief. See Commonwealth v. Lynch , 439 Mass. 532, 545 (2003). The attorney's affidavits accompanying his motion do not contain assertions that the evidence sought by the discovery motion would have materially benefited the defense. As the Commonwealth points out in their arguments, the requested discovery would have "undermined the defense theory at trial" and would not have benefitted the defense. The judge did not abuse his discretion in denying the defendant's postconviction motion for discovery.
3. Evidentiary claims . a. Unpreserved claims . For the first time on appeal, the defendant contends that three instances of unobjected-to testimony were improperly admitted, creating a substantial risk of a miscarriage of justice, and that counsel was ineffective in failing to oppose their admission.
Because defense counsel did not object to any of the testimony at issue, we review for a substantial risk of a miscarriage of justice.
"[W]hen the claim of ineffectiveness is predicated ... on counsel's failure to object to something that occurred at trial, the standard for evaluating the ineffectiveness claim is not significantly different from the substantial risk standard that is applicable to our review of the underlying, unpreserved error." Commonwealth v. Munoz , 461 Mass. 126, 141 n.20 (2011), quoting from Commonwealth v. Azar , 435 Mass. 675, 686 (2002).
First, the defendant argues that the victim's mother and father should not have been allowed to testify that the victim did not want to go to her aunt's after the incident. The parents testified that the victim would cry, beg, plead, and offer alternative places for her parents to send her. In addition to the their description of the victim, the testimony included statements made to them by the victim in which she told her mother and father that she did not want to go to the aunt's apartment and didn't want to stay there.
" ‘Evidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case.’ Demeanor evidence may be of particular importance in a case such as this, where the trial devolves to a contest of credibility concerning whether the charged offense [s] ... occurred." Commonwealth v. Starkweather , 79 Mass. App. Ct. 791, 800-801 (2011), quoting from Commonwealth v. Arana , 453 Mass. 214 225 (2009). Here, these statements were properly admitted for nonhearsay purposes, that is, not for the truth of the matter asserted, but used to describe the victim's state of mind and demeanor following the sexual assault by the defendant. See Commonwealth v. Montanez , 439 Mass. 441, 447-448 (2003) ; Commonwealth v. Cheremond , 461 Mass. 397, 409-410 (2012). This evidence was highly probative of the victim's credibility, which the defendant put at issue. We conclude there was no error, let alone a miscarriage of justice.
Next, the defendant claims the father's response to the defense attorney's cross-examination question regarding the victim's reputation for telling the truth constituted improper vouching for the victim's credibility. Without objection, the father responded, "I know when she's lying, I know when she's telling the truth."
While it is true that a witness may not comment on the credibility of other witness's testimony, see Commonwealth v. Triplett , 398 Mass. 561, 567 (1986), here, the witness was not making a direct comment on the credibility of his daughter's testimony. Although inadmissible, we conclude the father's response did not constitute improper vouching for the victim's credibility in light of the fact that immediately following this statement, defense counsel continued this line of questioning and the father admitted that the victim "tends to exaggerate and lie." Further, the judge provided pretrial and final instructions to the jury, which included that it was for the jury to determine the facts and what evidence to believe. The jury are presumed to follow the judge's instructions. See Commonwealth v. Andrade , 468 Mass. 543, 549 (2014). We find that the father's remark did not create a substantial risk of a miscarriage of justice.
The defendant also claims that multiple first complaint testimony was improperly admitted. He contends it was error for the victim to testify that after she told her father, who testified as the first complaint witness, about the sexual assault, "he called my mother." Likewise, the defendant claims it was error for the mother to testify about reporting the incident and about how her relationship with the defendant changed after she learned of the sexual assault.
The defendant argues that Commonwealth v. Stuckich , 450 Mass. 449, 457 (2008), which prohibits multiple complaint testimony "through the backdoor," controls here. In Stuckich , the Supreme Judicial Court ruled that the complainant "should not have been allowed to testify" that she told other people about the incident. Ibid . We, however, do not find Stuckich dispositive. The testimony complained of did not contain the substance of the victim's complaint. The defendant is unable to articulate how the fact that the father called the mother or that the matter was reported bolstered the victim's credibility in any appreciable way. There was no substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Roby , 462 Mass. 398, 409-410 (2012) ; Commonwealth v. Flint , 81 Mass. App. Ct. 794, 804 (2012).
b. Preserved claim . The defendant argues that he was precluded from cross-examining witnesses regarding the presence of a sex offender staying in the victim's home between the time of the sexual assault and the first complaint to her father. While the defendant has a right to cross-examine prosecution witnesses, the trial judge has broad discretion to limit the scope of cross-examination. See Mass. G. Evid. § 611(b)(1) (2016). The judge ruled before trial and at trial that the defendant was precluded from cross-examining witnesses regarding the presence of a sex offender in the victim's home as evidence of the victim's state of mind and bias. Further, the defendant claims that being denied the opportunity to cross-examine on this point infringed on his constitutional rights of confrontation.
The Commonwealth maintains the defendant did not preserve the constitutional right of confrontation at trial and submits that it is waived and must be reviewed under the standard of a substantial likelihood of a miscarriage of justice. See Commonwealth v. LaChance , 469 Mass. 854, 857 (2014). Because we find no error, it is of no consequence whether we treat the claim as preserved or unpreserved.
--------
"The determination whether evidence is legally relevant is within the discretion of the trial judge. Commonwealth v. Chasson , 383 Mass. 183, 187 (1981). Determining whether relevant evidence demonstrates bias also falls within that discretion. Commonwealth v. Lavelle , 414 Mass. 146, 153 (1993)." Commonwealth v. Quegan , 35 Mass. App. Ct. 129, 132 (1993).
We determine there was no error in the judge's exclusion of the evidence and conclude there was no abuse of discretion in the ruling that the evidence was not relevant to the victim's state of mind or to the issue of bias. "Although a criminal defendant has a right to reasonable cross-examination of a material witness for the purpose of showing bias, the ‘trial judge ... retains the discretion to appraise the materiality of the testimony sought to be introduced.’ " Ibid ., quoting from Commonwealth v. Huertas , 34 Mass. App. Ct. 939, 941 (1993).
Judgments affirmed.
Orders denying motions for postconviction discovery and for new trial affirmed.