COMMONWEALTH v. COOPER (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Kyle F. Cooper, appeals from an order denying his motion for new trial, in which he alleged ineffective assistance of trial counsel. We affirm.

Background. After a jury trial in the Superior Court, the defendant was convicted of multiple charges of sexual assault against a child victim. The defendant, who was nine years older than the victim, was a friend of the victim's older brother, and the assaults occurred in the victim's home over a period of years, beginning when the victim was turning eight and ending when she was fifteen. A panel of this court affirmed the convictions in an unpublished decision. See Commonwealth v. Cooper, 88 Mass. App. Ct. 1109 (2015).

On direct appeal the defendant raised a claim of ineffective assistance of trial counsel. Noting the absence of “affidavits or testimony from trial counsel as to whether his acts or omissions were part of his trial strategy,” the panel declined to resolve the claim because it “fail[ed] to appear indisputably on the record.” The defendant subsequently filed a motion for new trial in the Superior Court raising his ineffective assistance claim anew. The defendant did not support the motion with an affidavit of trial counsel or any other evidentiary showing. He did include an affidavit of new counsel, who stated his belief that trial counsel's alleged errors were not based on “tactical or legal judgment.” The same judge who had presided at trial denied the motion without a hearing.

Discussion. The defendant asserts that trial counsel provided ineffective assistance by failing to move to strike the testimony of one first complaint witness, failing to object to what he claims was impermissible fresh complaint testimony from other witnesses, and by the very act of cross-examining the victim's parents. He also faults counsel for failing to challenge the admission in evidence of the defendant's own statements and for not objecting to certain aspects of the prosecutor's closing argument and cross-examination of the defendant.

“Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 755 (2008). To prevail, the defendant must satisfy both prongs of the familiar Saferian test. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant must show that “(1) the conduct of his counsel fell ‘measurably below that which might be expected from an ordinary fallible lawyer’ [performance prong], and (2) this conduct ‘likely deprived the defendant of an otherwise available, substantial ground of defence’ [prejudice prong].” Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015), quoting Saferian, supra. “A lawyer's ‘arguably reasoned tactical or strategic judgments,’ do not amount to ineffective assistance of counsel unless they are ‘manifestly unreasonable’ when made.” Commonwealth v. Ortega, 441 Mass. 170, 175 (2004), quoting Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).

“Our review of the grant or denial of a motion for new trial is limited to whether the judge's decision constitutes an abuse of discretion or contains any other error of law.” Commonwealth v. Lane, 462 Mass. 591, 597 (2012). We extend “special deference” to the motion judge's ultimate decision on an ineffective assistance of counsel claim where, as here, he was also the trial judge. Id. From all that appears on the record, trial counsel intentionally did not object to much of the now-challenged evidence in order to pursue a trial strategy that depended in part on attacking the victim's credibility with her multiple inconsistent statements. “We keep in mind that an ineffective assistance of counsel challenge 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). With few exceptions, counsel's execution of the chosen strategy was reasonable. The exceptions, considered cumulatively, were not so prejudicial as to warrant a new trial.

1. Harrington's first complaint testimony. The defendant criticizes his trial counsel for failing to move to strike Thomas Harrington's testimony. Harrington, who testified as a first complaint witness, ultimately recounted that the victim told him about a physical, but not a sexual, assault. Counsel's inaction was consistent with his trial strategy and was not manifestly unreasonable.

Before Harrington testified, the judge instructed the jury to consider Harrington's first complaint testimony for a limited purpose: “to establish the circumstances in which the [c]omplainant first reported the alleged offense, and then to determine whether the first complaint either supports or fails to support the [c]omplainant's own testimony about the particular offense.” Harrington's testimony did not support the victim's version: she testified about an attempted digital rape, whereas Harrington testified that she told him about an assault and battery. The conflicting testimony supported the defense strategy of emphasizing the victim's inconsistent statements. The defendant's claim that the jury might have misunderstood the limiting instruction as referring to evidence that the judge knew about, but that Harrington was not permitted to discuss, is far-fetched.

2. “Back door” fresh complaint testimony. Trial counsel was not ineffective for failing to object to the testimony of the victim's mother, Police Officer Jennifer Ellis, the victim's friend Rachael, and the defendant's friend Curtis as impermissible “back door” fresh complaint testimony. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008).

Only one of these witnesses, the victim's mother, directly testified that the victim discussed her allegations against the defendant.² The prosecutor properly offered this statement “to provide context for the defendant's admission[ ].” Commonwealth v. Kebreau, 454 Mass. 287, 300 (2009), which by itself was ambiguous. The first complaint doctrine “is not intended to be used as a shield to bar the jury from obtaining a fair and accurate picture of the Commonwealth's case-in-chief.” Commonwealth v. Arana, 453 Mass. 214, 228-229 (2009).

Apart from the mother's brief testimony, there was no “[r]epitition of the narrative” by any of these witnesses. See Stuckich, 450 Mass. at 457. None of them testified about the victim's complaint or corroborated her allegations. To be sure, the jury could infer that each of these witnesses knew something about the victim's allegations (although the defendant's claim of “back door” first complaint testimony is further weakened by the fact that Curtis did not hear the allegations from the victim). The first complaint doctrine “does not, of course, prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible.” Arana, 453 Mass. at 220-221. All of the witnesses testified about matters that were relevant and probative: Ellis provided background information about the victim's medical examinations -- which defense counsel exploited as part of his strategy -- and the defendant's statements; Rachael testified about an incident when the defendant let himself into the victim's bedroom on false pretenses; and Curtis testified about another of the defendant's admissions. Any attempt to object to this testimony would have been unsuccessful. Trial counsel's failure to raise a futile objection is not conduct that falls below that expected from an ordinary, fallible lawyer. See Commonwealth v. Carroll, 439 Mass. 547, 557 (2003); Commonwealth v. Delong, 60 Mass. App. Ct. 122, 133 n.5 (2003).

The defendant also claims that counsel's decision to cross-examine the victim's parents was a mistake because their answers further reinforced the victim's allegations. A better strategy, he now contends, would have been to forego cross-examination altogether. However, counsel had good reason to cross-examine the parents: to exploit inconsistencies and improbabilities in the victim's various accounts of the sexual assaults and to highlight her delay in reporting the crime and her refusal to undergo a forensic examination. “Trial tactics which may appear questionable from the vantage point of hindsight, do not amount to ineffective assistance unless ‘manifestly unreasonable’ when undertaken.” Commonwealth v. Haley, 413 Mass. 770, 777-778 (1992).

3. The defendant's inculpatory statements. The defendant further claims that counsel provided substandard representation by failing to seek the exclusion of some of the defendant's admissions. For the most part, these statements were properly admitted as statements of a party opponent. See Commonwealth v. Marshall, 434 Mass. 358, 365-366 (2001); Commonwealth v. Bonomi, 335 Mass. 327, 347 (1957); Mass. G. Evid. § 801 (d) (2) (A) (2018). Counsel cannot be faulted for not pursuing a futile attempt to exclude them.

There is no merit to the defendant's claim, made without citation to any legal authority, that he was entitled to, and that counsel should have sought, an instruction from the judge concerning the meaning of the word “everything” in the defendant's statement, “Everything she said is true.” “To the extent that conflicting inferences are possible from the evidence, ‘it is for the jury to determine where the truth lies.’ ” Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981), quoting Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978). The jury could not possibly have understood this statement, which the defendant made more than a year before trial, to refer to the victim's trial testimony. The prosecutor permissibly used this evidence as a rhetorical device in summation.

Further, in the final charge, even though defense counsel did not request it, the judge forcefully instructed the jury, “Before you can even consider statements allegedly made by the [d]efendant, the Commonwealth must prove to you beyond a reasonable doubt, ․ that the [d]efendant made the statement that he is alleged to have made -- statement or statements.”

However, the defendant's statements that he “had pornography in [his] life ever since [he] was eight years old” and that he “did something terrible to [his] mother” when he was ten, were highly inflammatory, had little or no relevance to the charges, and would likely have been excluded if challenged. See Marshall, 434 Mass. at 366 (statements admissible as nonhearsay may not be used to show defendant's bad character and may be excluded if more prejudicial than probative). It is hard to imagine any strategic reason to allow the jury to hear these statements.

Even if counsel's failure to seek exclusion of these statements was manifestly unreasonable, however, the defendant has not shown any serious prejudice resulting from their admission. Given both the victim's description of the extent of the defendant's sexual assaults and the defendant's admissions, we think it unlikely that the jury would have been swayed by the defendant's brief reference to his childhood transgressions. Furthermore, when the prosecutor referred to this evidence in closing argument, he did not exploit it as evidence of the defendant's criminal propensity. Rather, the prosecutor properly attempted to connect the statements with the evidence at trial. The prosecutor argued that the defendant's reference to pornography was relevant because, when the victim and her family confronted him, no one explicitly accused him of a sexual assault; rather, the defendant made the connection to sexual assault and blamed it on his exposure to pornography. Similarly, the prosecutor used the statement about the defendant's mother to argue that his assaults against the victim followed the same pattern -- both occurred when the other party was sleeping. Counsel's failure to seek to exclude this testimony does not raise “a serious doubt whether the result of the trial might have been the different had the error not been made.” Commonwealth v. Millien, 474 Mass. 417, 432 & n.12 (2016), quoting Commonwealth v. Azar, 435 Mass. 675, 685 (2002) (prejudice standard of Saferian “effectively the same” as substantial risk of miscarriage of justice standard).

4. Prosecutor's arguments and cross-examination. The defendant faults counsel for failing to object to the prosecutor's closing argument concerning the victim's motive to lie and her willingness to suffer the embarrassment of testifying. A prosecutor may suggest that a witness has no motive to lie. “A prosecutor may not, however, suggest to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court and testify.” Commonwealth v. Ramos, 73 Mass. App. Ct. 824, 826 (2009), quoting Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). The prosecutor's argument here crossed the line. We review the claim that defense counsel was ineffective for failing to object under the substantial risk of a miscarriage of justice standard. See Millien, 474 Mass. at 432 & n.12; Azar, 435 Mass. at 685-687 (2002). We do not apply the more defendant-friendly prejudicial error standard for preserved claims used in Ramos, supra.

We discern no such risk. Although the victim's credibility was the central issue at trial, unlike in Commonwealth v. Dirgo, 474 Mass. 1012, 1013 (2016), the prosecutor did not attempt to establish “throughout the argument an overarching theme that the complainant was credible because of her willingness to testify.” The one improper argument was isolated and not compounded with other similar errors. We are not “left with a serious doubt whether the result of the trial might have been different had the prosecutor's error[ ] in closing argument not been made.” Id. at 1017.

Finally, the defendant argues that counsel should have objected to the prosecutor's intrusion on the defendant's attorney-client privilege and right to prepare a defense by asking the defendant, on cross-examination, about the timing of his notice of alibi. This claim borders on the frivolous. The defendant introduced the issue of his alibi into the trial and argued that the Commonwealth both failed to investigate it and that the victim tailored her testimony in response. In fact, defense counsel used a copy of the notice of alibi to cross-examine the victim. The prosecutor, in turn, showed it to the defendant during cross-examination and asked him to confirm, from the face of the document, that it was filed only weeks before trial began. The prosecutor's line of questioning was proper, and any objection would have been overruled.

Conclusion. Based on trial counsel's pursuit of the chosen trial strategy and our review of the record as a whole, the defendant has failed to demonstrate that trial counsel's cumulative performance fell below that of an ordinary, fallible attorney, and that better work might have affected the outcome of the trial. The judge did not abuse his discretion or commit any error of law in denying the motion for new trial.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The mother briefly testified that during the confrontation with the defendant, the victim, urged on by Harrington, said that the defendant had “attacked” her. The mother was not sure what the victim meant by this. The defendant responded to the victim, “[O]ne day you will respect me again.” The victim's father next testified in greater detail about this and other statements that the defendant made during this confrontation.