Opinion
No. 12–P–350.
2013-04-26
COMMONWEALTH v. Eladio SANTOS.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for a new trial, filed eight years after his convictions for multiple counts of indecent assault and battery, rape of a child, and incest stemming from his abuse of his two youngest daughters. The defendant timely appealed his convictions and this court affirmed. See Commonwealth v. Santos, 66 Mass.App.Ct. 1116 (2006). On appeal from an order denying his motion for a new trial, the defendant asserts that (1) the motion judge abused his discretion by denying the defendant's request for a new trial without a hearing, (2) the evidence at trial was insufficient to support his convictions, and (3) his trial and appellate counsel provided ineffective assistance. We affirm.
Defendant's motion for new trial. The defendant asserts it was error to deny his motion for a new trial without an evidentiary hearing and without the benefit of trial transcripts. The motion judge may rule on the issues presented in a motion for a new trial “on the basis of affidavits, without a further hearing, ‘if no substantial issue is raised by the motion or affidavits.’ “ Commonwealth v. Wolinski, 431 Mass. 228, 237 (2000), quoting from Mass.R.Crim.P. 30(c)(3), 378 Mass. 900 (1979). “The decision on whether to hold an evidentiary hearing is left to the sound discretion of the judge.” Ibid. Because we agree with the motion judge that the defendant's motion and affidavits raised no substantial issue, we see no abuse of discretion in his decision to forgo an evidentiary hearing. Moreover, we reject the defendant's argument that the motion judge was required to review the trial transcripts in reaching his decision. Our case law gives the judge discretion to rule on a motion for a new trial on the basis of the motion and affidavits alone. See Commonwealth v. Stewart, 383 Mass. 253, 259 (1981), quoting from the Reporters' Notes to Mass .R.Crim.P. 30, see now Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1652 (LexisNexis 2012–2013) (“Whether or not a substantial issue is presented must ... be determined on the face of the motion and affidavit ...”).
We also note that Mass.R.A.P. 8(b)(2), as amended, 437 Mass. 1602 (2002), concerning compilation of the record on appeal, is not applicable to a motion for a new trial.
Sufficiency of the evidence. The defendant appears to make two arguments concerning the sufficiency of the evidence at trial. First, the defendant asserts that the evidence at trial was insufficient to support his convictions because the victims' testimony was uncorroborated. The defendant's contention that the victims' testimony cannot be credited because it was uncorroborated is misplaced. Credibility determinations are within the province of the jury. See Commonwealth v. Hanlon, 44 Mass.App.Ct. 810, 815 (1998).
Second, he faults the trial judge for proposing a scheduling change that resulted in two defense witnesses testifying during the Commonwealth's case in chief. This change was prejudicial according to the defendant, because his examination of the defense witnesses elicited fresh complaint testimony that otherwise would not have come in during the Commonwealth's case in chief. We reject this argument. The trial judge explicitly considered only the evidence put forth by the Commonwealth when he ruled on the defendant's motion for a required finding of not guilty at the close of the Commonwealth's case. Thus, the defendant suffered no prejudice by presenting his witnesses out of turn.
This case was decided prior to the decision in Commonwealth v.. King, 445 Mass. 217 (2005).
During trial, the Commonwealth's final witness was not able to appear in court at the scheduled time. The judge therefore proposed to hear two defense witnesses out of order and then return to the Commonwealth's final witness. The attorneys for both sides agreed to this change. The defendant's attorney called witnesses Denise Harris and Patricia Dunne from whom she hoped to elicit evidence contradicting the victims' account of the abuse. Instead, however, the witnesses' testimony corroborated the victims' account and essentially amounted to fresh complaint testimony. The Commonwealth had decided not to call a fresh complaint witness.
Ineffective assistance claims. a. Trial counsel. The defendant asserts that his trial counsel was ineffective for failing to object to the scheduling change that resulted in two defense witnesses testifying during the Commonwealth's case-in-chief, eliciting first complaint testimony from defense witnesses, and for preventing the defendant from testifying at trial. We address each of these claims seriatim.
There was no error in the trial judge's decision to direct the defense witnesses to testify out of order. See Commonwealth v. Lopez, 433 Mass. 406, 413 (2001) (trial judge has broad discretion to “arrange the schedule of a trial to accommodate witness testimony, in order to resolve the needs and rights of the parties”). Therefore, defense counsel's failure to object to this procedure could not constitute ineffective assistance. See Commonwealth v. Ortiz, 463 Mass. 402, 410 (2012) (because there was no error in admitting the victim's statement, there could be no ineffective assistance claim based counsel's failure to object to the statement).
The motion judge found that trial counsel made a reasonable tactical decision to call Harris and Dunne, believing that they would provide testimony that would contradict the victims' account of abuse. We agree. The fact that the witnesses ultimately gave testimony that corroborated the victims' testimony did not render her decision to call these witnesses “manifestly unreasonable.” See Commonwealth v. Ortega, 441 Mass. 170, 175 (2004), quoting from Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) (“A lawyer's ‘arguably reasoned tactical or strategic judgments' ... do not amount to ineffective assistance of counsel unless they are ‘manifestly unreasonable’ when made ” [emphasis supplied] ).
Finally, we reject the defendant's assertion that trial counsel prohibited him from testifying for the reasons stated in the motion judge's decision at page two. See Commonwealth v. Glacken, 451 Mass. 163, 170 (2008) (affidavit filed seven years after trial asserting that counsel prevented the defendant from testifying was “very late and self serving”).
b. Appellate counsel. Finally, we reject the defendant's claim that his appellate counsel was ineffective for failing to raise a claim of ineffective assistance during his direct appeal. The defendant's argument is foreclosed by Breese v. Commonwealth, 415 Mass. 249, 252 (1993) (“The question whether ... appellate counsel rendered the defendant ineffective assistance necessarily depends on whether the defendant received ineffective assistance at trial ...”).
Order denying motion for new trial affirmed.