Opinion
19-P-750
10-30-2020
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant of twelve charges of forcible rape of a child and one charge of dissemination of harmful matter to a minor. The convictions stemmed from the defendant's abuse of his stepson, which began when the stepson was eight and spanned a number of years. In this direct appeal from his convictions, the defendant's only argument is that his trial counsel was constitutionally ineffective. We affirm.
"[O]ur case law strongly disfavors raising ineffective assistance claims on direct appeal." Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006). Rather, "the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Id. at 810. An ineffective assistance claim "made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Thus, we will decide an ineffective assistance claim on direct appeal only if "the factual basis of the claim appears indisputably on the trial record." Zinser, supra at 811, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
Here, the factual basis of only one of the defendant's claims appears indisputably on the record before us. That claim is that trial counsel was ineffective because he failed to object to the victim's testimony about uncharged conduct, namely, that the defendant rubbed and kissed the victim's stomach and "felt [his] penis." See Commonwealth v. McLeod, 39 Mass. App. Ct. 461, 462 n.2 (1995) (factual basis of claim that counsel was ineffective for failing to object to bad act evidence appeared indisputably on trial record). We conclude that, because the testimony was admissible, trial counsel did not err by failing to object. See Commonwealth v. Lessieur, 472 Mass. 317, 327, cert. denied, 136 S. Ct. 418 (2015). Although "[e]vidence of a defendant's prior or subsequent bad acts is inadmissible to demonstrate bad character or propensity to commit the crime[s] charged," such evidence may be admitted for another relevant purpose. Commonwealth v. Walker, 442 Mass. 185, 202 (2004). The testimony at issue here was admissible to show the defendant's "common pattern or course of conduct toward the [victim]." Commonwealth v. King, 387 Mass. 464, 472 (1982). See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 816-820 (1998). The defendant has therefore failed to show that counsel's failure to object "fell ‘measurably below that which might be expected from an ordinary fallible lawyer,’ and deprived him of an ‘otherwise available, substantial ground’ of defense." Commonwealth v. Burgos, 470 Mass. 133, 144 (2014), quoting Commonwealth v. Randolph, 438 Mass. 290, 295 n.9 (2002). See McLeod, supra at 464 (counsel not ineffective for failing to object to bad act evidence that was "probative of the relationships between the defendant and the [victims] ... and the pattern or consistency of his behavior").
As for the defendant's remaining claims, this direct appeal fails because the factual basis of the claims does not appear indisputably on the trial record. See Zinser, 446 Mass. at 811. Those claims are that trial counsel was ineffective for (1) failing to call an expert witness to support the defense theory that the victim "confabulated his memories," (2) eliciting testimony harmful to the defense, including testimony that would have been otherwise inadmissible under the first complaint doctrine, see Commonwealth v. King, 445 Mass. 217, 243-247 (2005), cert. denied, 546 U.S. 1216 (2006), and (3) failing to challenge two jurors on the basis of bias. Without "the benefit of affidavits and other materials from trial counsel," we have no explanation for these decisions and no insight into counsel's trial strategy. Commonwealth v. Ferreira, 67 Mass. App. Ct. 109, 115 (2006). As a result, on this record we cannot determine that his decisions were " ‘manifestly unreasonable’ when made." Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
In particular, the defendant claims that trial counsel erred by eliciting (1) testimony from the victim's former girlfriend that the victim made a second complaint of sexual assault in 2011, (2) detailed testimony from a detective about the victim's initial report to the police, which corroborated the victim's testimony in many respects, and (3) testimony from the detective that he considered the victim to be trustworthy.
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We disagree with the defendant's assertion that it is clear on this record that trial counsel's failure to present expert testimony was manifestly unreasonable because it was the result of a discovery violation. To the contrary, it appears that counsel may have decided for strategic reasons not to present an expert. At trial the judge gave counsel an opportunity to produce the necessary discovery, but the next morning counsel stated that "[t]he defense has elected to not put [the expert] on the stand; we're withdrawing." Based on this exchange, we are unable to determine the reason for counsel's decision or whether, if strategic, it was manifestly unreasonable. Likewise, while the defendant points to testimony elicited by counsel that appears to have been harmful to the defense, the record suggests that counsel did so, at least in part, as a strategy to highlight inconsistent statements made by the victim. Whether that strategy was manifestly unreasonable is not a question that we can resolve on this record. Nor can we determine whether counsel was ineffective for failing to challenge the two jurors who were purportedly biased. The appropriate vehicle for all of these claims is a motion for a new trial.
Judgments affirmed.