Opinion
08-P-516
03-09-2012
COMMONWEALTH v. DANIEL S. TEIXEIRA.
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
Daniel Teixeira was convicted of rape of a child under sixteen, G. L. c. 265, § 23, and indecent assault and battery of a child under fourteen, G. L. c. 265, § 13B. Claiming that his convictions resulted from ineffective assistance of counsel, he appeals. We affirm. Three witnesses testified at trial, the two victims and an investigating police officer. The essential facts, when the record is viewed in the light most favorable to the Commonwealth, show that the victims, whom we shall call Carol and Robin, were twelve years old at the time the incident occurred. Late one October afternoon, they got into an automobile driven by the defendant, who was seventeen years of age at the time. Another male, never identified, was also in the car.
The defendant drove to an area in Brockton where the vehicle stopped. All four occupants got out but then, at the defendant's request, Carol got back in. She and the defendant removed their own clothing and engaged in vaginal intercourse. No force was involved.
Carol dressed and got out of the car. Robin got in the back seat where the defendant used both of his hands to touch her, over clothing, in the area of her breasts and vagina. Robin then got out of the automobile, the unidentified male entered with Carol, and two of them had sexual intercourse in the back seat.
After these events, the defendant drove the girls back to the area where he had picked them up. They got out of the automobile and the defendant drove away. Carol testified that, after leaving the automobile, she told Robin that she and the defendant had 'had sex.' Robin confirmed Carol's account, though she was uncertain about when Carol made her disclosure, and on cross-examination said that Carol told her that nothing had happened.
When Robin reported the incident to her guidance counselor approximately one month later, Brockton police began an investigation. During the course of that investigation, the girls made a series of conflicting statements, some of which they later recanted. Among other things, Robin told investigators that she had been 'raped' by the defendant that night. At the trial, which occurred five years later, she said that she had used the word 'rape' to describe the way the defendant touched her because she was unaware of the precise definition of 'rape.'
Specifically, Robin testified as follows:
Q: Why did you use the word rape, as opposed to sexually assaulted?
A: Well, in school they didn't tell me that, so at the age I didn't understand.
On cross-examination, the jury heard Carol admit that she told police that she had not engaged in any sexual activity with the defendant and that she refused to participate in portions of the investigatory process. The investigating officer corroborated that testimony. The jury also heard Robin say that she did, and then that she did not, continue using the word rape to describe her encounter with the defendant even after she learned the word's correct meaning. They also heard Robin testify that the defendant was the only person with whom Carol was in the automobile alone, but that she had testified on an earlier occasion that Carol and the unknown male were in the automobile alone. They heard her testify that she could see what was going on in the automobile when Carol and the defendant were inside and that she had testified on an earlier occasion that she could see nothing because it was too dark. She also testified that, although police asked her to do so, she was unable to show them where the incident occurred. In sum, the accounts given at trial by both victims were forcefully impeached by statements they had given on earlier occasions.
After the verdicts were returned, the defendant filed a motion for a new trial centering on his contention that his trial counsel had failed to call an essential witness at trial, and had failed to introduce certain DSS records or call DSS witnesses to impeach the victims' testimony, thereby providing him with ineffective assistance. An evidentiary hearing on the motion featured a witness whom we shall call Brenda, who testified that she and Robin had been friends and that Robin told her 'nothing had happened' between herself and the defendant on the evening in question. Brenda further testified that Robin said that she had made up the rape allegations because her mother was 'mad strict,' though she provided no context for Robin's assertion in that regard. Brenda also testified that Robin 'just wanted to have a baby with [the defendant]. She likes -- everybody that she likes rapes her. So he's not the first one -- she did it to a bunch of other people that I know of.' Brenda testified that she had never been arrested or charged with any crime and that she remained Robin's friend. Brenda always lived at the same address in Brockton and recalled speaking to an investigator on one occasion but never heard from anyone affiliated with the defendant thereafter.
On cross-examination by the Commonwealth, the following exchange occurred:
Q: So she told you that what happened, if anything, between her and [the defendant] wasn't rape, correct?
A: What is it?
Q: She didn't say to you that nothing happened between her and [the defendant], correct?
A: Yes, nothing happened.
Q: Well she didn't-did she tell you that nothing happened or he didn't force her to do anything?
A: No, she told me nothing happened.
The defendant's original attorney testified that she learned of Brenda's identity from grand jury transcripts and had an investigator interview her. After doing so, the investigator sent the attorney an e-mail in which, in addition to providing Brenda's address and date of birth, he informed the attorney that Brenda told him of Robin's statement that she 'made up' the rape story because her mother was 'mad strict.' The e-mail went on to say that '[s]ince [Brenda] is a minor (and was home with her Mom that does not speak English I elected not to drill her until we see her in person. Keep me posted.'
The email said that Brenda was home because she had been suspended from school for accumulating too many demerits.
The attorney continued her testimony by stating that she left the office of Public Counsel Services before the defendant's trial and, when she left, sent a summary letter describing the case to the lawyer who became the defendant's trial attorney. In that letter, she mentioned Brenda, though not the specific statement Brenda had made, and included the investigator's email in the file she transferred to the new attorney.
In that regard, counsel's letter stated as follows:
'[The investigator] and I went out to try to find out some information about [Robin] from . . . Brenda. We talked to a number of kids as we bounced from house to house getting names from people. The basic gist was that [Robin] has a reputation at school for lying and that she had told everyone she was pregnant when she was not. She was in foster care for some period of time, then went back home.'
Trial counsel testified that, after she took over the file, she did not have any further investigative work performed. She saw the notes referring to Brenda but did not attempt to locate her, because she thought that Brenda was involved in another criminal case pending in the Brockton District Court and was concerned about the kind of witness she would make if she were called to testify for the defense. Counsel did not know, however, whether Brenda had ever been charged in the case or the nature of her involvement in it. Insofar as the DSS records were concerned, counsel said that she had reviewed them but had been precluded from introducing them as the result of a pretrial motion in limine. She did not, however, subpoena any of the individuals who made impeaching entries in the DSS records because, to do so, she would have had to issue a number of subpoenas.
The judge denied the new trial motion, stating in essence that Brenda's testimony 'would have been cumulative of the impeachment of [Robin] by trial counsel.' The judge continued by stating that trial counsel's 'successful demonstration of the complaining witness' previous mistakes and inconsistencies, and their inability to recall certain details, renders Brenda's testimony marginal and cumulative.'
We have set out the factual backdrop for the defendant's claim of ineffective assistance in some detail because it presents a close question. However, where a claim of ineffective assistance of counsel is the basis for the defendant's motion for new trial, appellate courts accord substantial deference to the trial judge's favorable evaluation of trial counsel's performance. Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995). Substantively, to obtain a new trial based on claimed ineffective assistance of counsel, the defendant has the burden of showing that counsel's performance was deficient, i.e., that it fell 'measurably below [the performance] which might be expected from an ordinary fallible lawyer,' and that the deficient performance 'likely deprived the defendant of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
It is hard to understand why trial counsel did not send a new investigator to interview Brenda or why she did not call Brenda as a witness at trial. Brenda was prepared to testify not that Robin was confused about the meaning of the word 'rape,' but that she made up the 'rape' story and that nothing had happened. Her willingness to testify to that effect was demonstrated by her testimony during the hearing on the new trial motion and could have been determined by another pretrial interview. Nothing in the record supports counsel's fear that Brenda would have made a bad appearance before the jury because of some involvement in a criminal proceeding in the District Court as there is no indication that she had been convicted of, or even charged with, anything in connection with that, or any other, proceeding.
Thus, the question becomes whether failure to call Brenda deprived of the defendant of a 'substantial ground of defence.' Here, we think the trial judge's determination is entitled to deference. He not only heard the testimony we have read, but also had an opportunity to observe the demeanor of the witnesses and the force of the testimony they presented during the course of the trial. Moreover, the potential impact of Brenda's testimony must be gauged against the backdrop of the substantial impeachment of both victims that in fact occurred. Robin explained her use of the word 'rape' but then was impeached by her own testimony that she continued to use that word even after she learned its correct meaning. Both victims were impeached by their own inconsistent testimony and by their contradiction of each other. The investigator's initial report did not say that he had learned from Brenda that Robin said 'nothing happened' but just that Robin had 'made up' the 'rape' story. Neither that report nor Brenda's testimony at trial contained any explanation for the nexus between Robin's alleged fabrication and her mother's strictness.
This, then, is not a case like Commonwealth v. Garcia, 66 Mass. App. Ct. 167 (2006), where we affirmed a trial judge's decision to grant a new trial based on ineffective assistance of counsel. In the first place, the judge in that case allowed the new trial motion. Moreover, the hearing on the new trial motion in that case revealed that defense counsel was unaware of an exculpatory statement his file contained. In addition, the exculpatory witness, a babysitter for one of the very young victims, described in great detail the circumstances under which she talked to the victim about his allegations, about his continued and repeated denials that anything had occurred with the defendant and about observations she made of the victim's mother coaching him to provide an inculpatory account. Id. at 170-172 & n.8. Brenda's bare bones recitation of Robin's statement has none of the powerful characteristics of the testimony at issue in Garcia.
The defendant's other contentions require less discussion. Insofar as use of the DSS records is concerned, none are present in the record and, thus, we are unable to make a judgment about their content or about counsel's election not to offer them at trial. None of the individuals who made entries in the records testified at the hearing on the motion for a new trial and there is no indication in the record, by affidavit or otherwise, what their trial testimony might have been. Robin's 'first complaint' testimony was properly allowed for, although Robin was imprecise about when Carol made the disclosure, Carol testified that she did so immediately upon getting out of the automobile when the defendant dropped the girls off. Finally, the judge did not abuse his discretion by the way he handled counsel's cross-examination of Carol regarding her sexual activity with the other, unidentified, individual who was in the automobile that evening.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (McHugh, Katzmann & Vuono, JJ.),