Opinion
11-P-1023
05-01-2012
COMMONWEALTH v. ASUNCION SANCHEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the Superior Court of the denial of defendant Asuncion Sanchez's motion for new trial on a case originally heard in 1986. After a jury trial in that year, the defendant was convicted of four counts of rape of a child by force, two counts of indecent assault and battery on a child under fourteen years of age, and one count of indecent assault and battery. This case has a lengthy posttrial procedural history. The Supreme Judicial Court affirmed four of the defendant's convictions on direct appeal, see Commonwealth v. Sanchez, 405 Mass. 369 (1989), the Appellate Division of the Superior Court denied the defendant's motion to revise and revoke his sentences, and in 1992, this court affirmed the denial of a motion for new trial based on ineffective assistance of counsel. See Commonwealth v. Sanchez, 33 Mass. App. Ct. 1111 (1992). In order to warrant a new trial at this point, the defendant must show that his claims have not been waived, either by proving that both his appellate and trial counsel were ineffective, or by showing that new, credible evidence has come to light which would warrant a new trial. As the defendant has not done either of these things, we affirm the denial of his motion for new trial.
The defendant's convictions of indecent assault and battery were reversed as being duplicative. See Sanchez, supra at 370.
Factual background. The underlying facts of this case are summarized in the opinion issued by the Supreme Judicial Court. See Commonwealth v. Sanchez, supra at 370-372. We supplement those facts in the discussion, infra, where necessary.
Discussion. 1. Legal standards. A motion for a new trial should be allowed only 'if it appears that justice may not have been done.' Commonwealth v. Cavitt, 460 Mass. 617, 625 (2011), quoting from Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). A motion for a new trial 'may not be used as a vehicle to compel a trial judge to review and reconsider questions of law on which a defendant has had his day in an appellate court, or forgone that opportunity.' Commonwealth v. Frias, 53 Mass. App. Ct. 488, 495 (2002), quoting from Fogarty v. Commonwealth, 406 Mass. 103, 107 (1989). In addition, '[i]f a defendant fails to raise a claim that is generally known and available at the time of trial or direct appeal or in the first motion for postconviction relief, the claim is waived.' Commonwealth v. Randolph, 438 Mass. 290, 293 (2002), quoting from Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). On appeal of a motion for a new trial, 'an appellate court will examine the motion judge's conclusion[s] only to determine whether there has been a significant error of law or other abuse of discretion.' Cavitt, supra at 625, quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
2. Ineffective assistance of counsel. The defendant alleges that he is entitled to a new trial because he received ineffective assistance from both his trial and appellate counsel. He alleges that, as a result of this ineffective assistance, several issues raised in this appeal are not waived, despite being available to the defendant on his previous appeals. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show (1) 'behavior of counsel falling measurably below that which might be expected of an ordinary fallible lawyer' and (2) that such behavior 'has likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant claims that trial counsel was ineffective for a variety of reasons and that appellate counsel was ineffective for not raising trial counsel's deficiencies in either his direct or collateral appeal. We consider these alleged deficiencies in turn.
Given the procedural posture of this case, the defendant's failure to prove ineffective assistance by either the defendant's trial or appellate counsel means that issue is not grounds for reversal.
A. Alibi witnesses. The defendant alleges ineffective assistance of trial counsel because trial counsel did not successfully procure the attendance of certain witnesses or take certain actions towards obtaining their attendance. However, the defendant has not produced any affidavits from these witnesses indicating that the testimony of these witnesses would have benefitted his case, rather than being merely cumulative of work logs presented by the defendant. As such, he has not shown that failure to call these witnesses deprived him of a 'substantial ground of defence.' See ibid.
This claim is also waived, as it could have been brought in his previous motion for a new trial based on ineffective assistance of counsel, but was not. See Randolph, supra. In addition, he cannot avoid waiver through a claim of ineffective assistance of appellate counsel, because he cannot show that his appellate counsel was ineffective for failing to raise this unsubstantiated argument. '[W]innowing out weaker arguments on appeal . . . is the hallmark of effective appellate advocacy.' Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 233 (1993), quoting from Smith v. Murray, 477 U.S. 527, 536 (1986).
B. Medical form. The defendant claims that trial counsel was ineffective for stipulating to the introduction of a medical form indicating that the defendant had been taking penicillin prior to incarceration. The defendant's evidentiary arguments regarding this medical form were addressed and rejected by the Supreme Judicial Court on the defendant's direct appeal. See Commonwealth v. Sanchez 405 Mass. at 377-378. Thus, even putting all other impediments aside, the defendant cannot establish that trial counsel's stipulation deprived him of a substantial ground of defence, see Saferian, supra, as the medical form would have been admissible absent the stipulation. In addition, his argument that this was ineffective assistance of counsel was rejected by the Appeals Court on his previous appeal and he cannot now relitigate the issue.
The defendant's similar claim regarding his trial counsel's decision to call Terry Aberdale was not raised below and is thus waived. See Commonwealth v. Diaz, 453 Mass. 266, 275 (2009).
C. Medical form declarant. The defendant further alleges that failure to call Judy O'Brien, the declarant on his medical form, was ineffective assistance of counsel. This claim could have been raised on a previous appeal, but was not, and is thus waived. See Randolph, 438 Mass. at 293. The defendant cannot avoid this waiver by his allegations of ineffective assistance of counsel, because counsel's failure to raise this claim in addition to the similar claim regarding trial counsel's stipulation to the medical form itself was a sound tactical decision. See Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 233 (1993).
D. Failure to summon Dr. Skelskie. The defendant's argument that trial counsel was ineffective for failing to call Dr. Skelskie was raised and rejected on the defendant's previous ineffective assistance of counsel appeal.
E. Improper closing. The defendant raises a variety of arguments regarding the prosecutor's closing statement. Some of these arguments, namely appeals to the sympathies of the jury and vouching, were already addressed on direct appeal and found not to be reversible error. See Sanchez, 405 Mass. at 375- 377. In addition, the argument that failure to object to these comments was ineffective assistance of counsel was also raised and rejected. See Id. at 382-383. The other aspects of the prosecutor's closing to which he objects could have been raised on a previous appeal and were not, and are therefore waived. See Randolph, supra. Failure to raise every possible argument regarding the prosecutor's closing does not constitute ineffective assistance of appellate counsel, see Sowell, supra, and thus cannot be used as a method to sidestep waiver.
F. Sentencing. The defendant further claims that he received ineffective assistance of counsel regarding several aspects of his sentencing. The defendant's claim that the judge's consideration of the defendant's previous sexual offenses and that two of the victims contracted gonorrhoea was improper, was expressly considered and rejected on direct appeal, see Sanchez, supra at 380-381, and cannot be resurrected on a motion for a new trial. His remaining argument concerns trial counsel's failure to object to a remark made by the probation officer present at the sentencing hearing. Given that the Supreme Judicial Court found that the trial judge 'carefully tailored the sentences to fit the seriousness and apparent harm of the crimes,' id. at 381, trial counsel's failure to object to these remarks would not likely have affected the outcome of the case and thus did not deprive the defendant of a substantial ground of defence. See Saferian, supra.
G. Defendant's decision to testify. Finally, the defendant claims that his trial counsel coerced him into testifying by representing that Dr. Skelskie would testify. This argument was available, but not raised, on the defendant's previous appeals and is thus waived. See Randolph, supra. The defendant cannot dodge this waiver by claiming ineffective assistance of appellate counsel. The previous appellate counsel's decision not to raise the issue was tactically sound, because the colloquy upon which the defendant relies is at best equivocal, rendering this argument a weak one. See Sowell, supra.
Contrary to the defendant's assertions, on the record presented, the key factor that led him to decide to testify appears to be that the prosecution was barred from going into the details of his previous crimes on cross-examination.
This argument also flounders because, to the extent that trial counsel advised the defendant to testify, it was not 'manifestly unreasonable' for him to do so, and was thus not ineffective assistance of counsel. See Commonwealth v. Smith, 459 Mass. 538, 551 (2011).
3. Compulsory process. The defendant alleges that he was denied his right to compulsory process under art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution when the trial judge did not secure the presence of Dr. Skelskie and two other witnesses, who he alleges would have provided alibis. '[T]he right to call witnesses is not absolute; in the face of 'legitimate demands of the adversarial system,' this right may be tempered according to the discretion of the trial judge.' Commonwealth v. Durning, 406 Mass. 485, 495 (1990), quoting from Commonwealth v. Edgerly, 372 Mass. 337, 343 (1977). As noted supra, the defendant has not shown that the additional evidence of the alibi witnesses would not have been merely cumulative of existing alibi evidence. Likewise, the defendant has not shown that Dr. Skelskie would have testified to anything other than what the defendant himself testified to. As such, especially given that procuring the attendance of any of the missing witnesses would have required a continuance of the trial, the defendant has not shown that the trial judge abused his discretion in not doing more to ensure those witnesses' attendance.
This argument also could have been raised on a previous appeal and was not. It is thus waived. See Randolph, 438 Mass. at 293.
4. Newly discovered evidence. Finally, the defendant argues he should be granted a new trial because newly discovered evidence indicates that, during his original trial, the prosecution bribed one of the victims and the victim's mother in order to make the victim change his testimony. The defendant relies upon affidavits by his brother, Carlitos Sanchez, and by a former customer, Jacobo Roques, to support his claim. The earliest affidavit dates from 1993, after the defendant unsuccessfully pursued his prior appeals.
A motion for a new trial based on newly discovered evidence is 'addressed to the sound discretion of the trial judge.' Commonwealth v. De Christoforo, 360 Mass. 531, 542 (1971). In addition, the 'weight and import of the affidavits . . . [are] likewise for the trial judge's discretion' and the trial judge does 'not have to accept them as true even [if] they [are] undisputed.' Id. at 543. Here, the motion judge did not credit the affidavits submitted by the defendant. The judge reasoned that it was not credible that Carlitos and Roques had both witnessed the alleged bribe during the course of the trial but had not informed the defendant of the event until seven years afterwards. The judge found this gap especially troubling because Carlitos is the defendant's brother and Roques was a defense witness at trial. The judge's finding that the affidavits were not newly discovered evidence was sound. As a result, the record does not disclose any abuse of discretion in the denial of the motion for a new trial.
Conclusion. As detailed above, the claims raised by the defendant on appeal have all either been previously addressed, have been waived, or are without merit. ,
In light of this, the motion judge did not abuse her discretion in finding that the defendant had not presented a 'substantial issue' worthy of an evidentiary hearing. See Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).
To the degree the defendant raises new issues in his reply brief, they are waived. See Flynn v. Parker, 80 Mass.App.Ct. 283, 288 n.10 (2011), citing Travenol Labs, Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985).
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Order denying motion for new trial affirmed.
By the Court (Katzmann, Sikora, & Agnes, JJ.),