COMMONWEALTH v. MORALES (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this consolidated appeal, the defendant appeals from his convictions of two counts of rape of a child, G. L. c. 265, § 23, and one count of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, and from the denials of his motions for new trial and for reconsideration. He raises several arguments on appeal. First, he argues that the victim's mother, who was the designated first complaint witness, should not have been permitted to testify to a conversation she had with the defendant because it was not part of the victim's first complaint. Second, he contends that his motion for new trial alleging ineffective assistance of counsel based on trial counsel's failure to call Roxana Aispuro, the defendant's then girlfriend, should not have been denied simply because he failed to submit an affidavit in support of the motion. Relatedly, he argues that his motion to reconsider his motion for new trial (which was accompanied by an affidavit from Aispuro) should not have been denied without a hearing. Finally, he argues that other aspects of trial counsel's performance deprived him of effective assistance of counsel. We affirm.

The defendant argues that the judge erred in admitting, over objection, the victim's mother's testimony regarding a conversation she had with the defendant during which she inquired whether he was “still checking” the victim's genitals after she showered. The defendant argues that the mother's testimony implied that she had received a second complaint from the victim and, as a result, it constituted inadmissible multiple complaint testimony. The defendant's argument fails because the evidence was independently admissible as a statement against interest. See Mass. G. Evid. § 804 (b) (3) (2018); Commonwealth v. Brown, 479 Mass. 600, 603 n.3 (2018); Commonwealth v. Cruz, 53 Mass. App. Ct. 393, 401 (2001). Evidence need not be admissible on every ground; it need only be admissible on one. Thus, even were we to assume that the evidence was barred by the first complaint doctrine, it could still be admitted “so long as the judge carefully balance[d] ‘the testimony's probative ․ value’ and its prejudicial effect.” Commonwealth v. Place, 81 Mass. App. Ct. 229, 231 (2012), quoting Commonwealth v. Arana, 453 Mass. 214, 229 (2009). Here, although the prosecutor's reference to the first complaint in her question regarding the timeframe of the conversation with the defendant could have been avoided, we discern no error in the judge's conclusion that that brief reference did not unduly prejudice the defendant.

The defendant's second and third arguments concern the denials of his motion for new trial and his motion to reconsider that denial. Before addressing the merits of those motions, we set out the relevant procedural background. The motion for new trial alleged various shortcomings by trial counsel that the defendant argued constituted ineffective assistance of counsel meriting a new trial. One such alleged shortcoming was trial counsel's failure to call Aispuro to refute the victim's claim that, during a private conversation after the crimes, the defendant made sexually suggestive remarks to her. The judge summarily denied this part of the new trial motion because it was not supported by an affidavit showing the allegedly favorable testimony; indeed, no affidavit was filed with the motion at all. See Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). The judge did not at that time rule on the remaining bases for the motion, instead inviting an opposition from the Commonwealth.

The defendant then filed a motion for reconsideration, accompanied by two affidavits: one from counsel (who filed the motions) and the other from Aispuro. In his affidavit, counsel averred that the press of business had prevented him from getting Aispuro's affidavit signed before the motion for new trial was due and that he had filed the motion intending to later file the supporting affidavit. Aispuro's affidavit stated that she had met several times with trial counsel and that they had discussed the possibility of her testifying at trial to refute the victim's testimony that she had been left alone with the defendant during an overnight visit at the defendant's house. Her affidavit concluded, “When we spoke about the possibility of me testifying about the events of this weekend, [trial counsel] told us that he didn't think the testimony would be helpful and stated that he was not going to call me to testify.” The judge denied the motion for reconsideration, finding that counsel's explanation for his failure to file the affidavit at the appropriate time did not constitute excusable neglect.

The judge next decided the remaining grounds raised in the motion for new trial and, concluding that the motion raised no substantial issue, denied the motion without a hearing. See Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015) (evidentiary hearing on motion for new trial required only “when the motion and affidavits raise a substantial issue” [quotation omitted] ).

“A trial judge upon motion in writing may grant a new trial if it appears that justice may not have been done. Mass. R. Crim. P. 30(b) ․ A motion for new trial is addressed to the sound discretion of the judge, and the judge's disposition of the motion will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error. Reversal for abuse of discretion is particularly rare where [as here] the judge acting on the motion was also the trial judge.” Commonwealth v. Colantonio, 31 Mass. App. Ct. 299, 301-302 (1991), quoting Commonwealth v. Moore, 408 Mass. 117, 125 (1990).

The judge was well within his discretion to summarily deny the unsupported portion of the motion for new trial. “Moving parties shall file and serve ․ affidavits where appropriate in support of their respective positions.” Mass. R. Crim. P. 30 (c) (3). An affidavit should be filed when a new trial is requested in order to present a new witness. See Colantonio, 31 Mass. App. Ct. at 302 (“The defendant's motion was not accompanied by an affidavit stating what [the witness's] testimony would be or whether he would be willing to testify”); Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 487 (1986) (“No affidavit of [the witness] was submitted, and the judge found that there was no showing that [the witness] would appear or, if he did, what the content of his testimony would be”). Nor did the defendant include in his original motion a request to file the affidavit late, or any explanation for the affidavit's absence.

Even were we to accept the defendant's contention that the judge denied the motion to reconsider on incorrect procedural grounds, he has not persuaded us that the motion was incorrectly decided on the merits. To establish ineffective assistance of counsel, the defendant must show that “there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If that is found, this court then determines “whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Id. “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made.” Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

Here, it is clear from the face of Aispuro's affidavit that trial counsel's decision not to call Aispuro to testify at trial was strategic. Trial counsel had the information, and deliberately chose not to use it. Nor can we say that that strategic decision was manifestly unreasonable when made. Aispuro's proffered testimony related to a collateral matter: a conversation with the defendant that happened long after the sexual assaults. This is not an instance of failure to call a favorable witness whose testimony would “contradict[ ] the Commonwealth's entire theory of the case” and “could have raised a reasonable doubt in the jurors' minds.” Commonwealth v. Hill, 432 Mass. 704, 719 (2000).

We turn now to the other grounds upon which the defendant bases his argument that trial counsel's performance was constitutionally deficient. First, the defendant argues that trial counsel was ineffective in failing to request a mistrial after the prosecutor mentioned the victim's first complaint in her question to the mother seeking the substance of the later conversation that the mother had with the defendant about “still checking” the victim. The judge overruled trial counsel's timely objection, stating that the brief reference was “not a significant enough problem that [he would] preclude the conversation that will follow.” Having received this ruling on his timely objection, trial counsel was not required to make a futile motion for mistrial on the same ground. See Commonwealth v. Morales, 440 Mass. 536, 549-550 (2003) (trial counsel not ineffective for failing to move for mistrial where request would have been futile).

Nor has the defendant shown that trial counsel was ineffective by failing to pursue more robust cross-examination of the victim's mother about her failure to take any action after she received the victim's first complaint. It should be noted that trial counsel drew out the mother's failure to act and, having obtained that favorable testimony, used it effectively during his closing. The defendant has not shown (or, indeed, argued) what further cross-examination on this topic would have accomplished. See, e.g., Commonwealth v. Fisher, 433 Mass. 340, 357 (2001); Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). Indeed, the trial transcript reveals that trial counsel was concerned about continuing this line of questioning because it might have risked opening the door to testimony concerning further complaints by the victim, which trial counsel reasonably wished to avoid.²

The defendant's final contention is that trial counsel's closing was so crude and offensive that it fell below the standard expected of an ordinary fallible lawyer.³ Although the purpose of the argument (that the victim made up the conversation she testified she had with the defendant when she stayed over at his home) was entirely permissible, we agree that the manner in which it was made fell below the bar of acceptable advocacy. Indeed, the argument is so surprisingly offensive that we query whether counsel would have made it unless his client had insisted on it (a matter about which we have no information since the defendant did not file an affidavit in support of the motion for new trial, either from trial counsel or himself). Setting that particular point to the side, the argument did not “likely deprive[ ] the defendant of an otherwise available, substantial ground of defence.” Saferian, 366 Mass. at 96. To begin, as we noted, the argument (although ill-framed) was designed to discredit the victim's testimony and was unlikely to be understood by the jury as being directed to any other purpose. Second, the particular point in contention (whether the defendant had in 2010 complimented the victim on her particular anatomical attributes) was collateral to the main question for the jury: whether the defendant had raped and indecently assaulted the victim years earlier. In these circumstances, although the argument should not have been made in the way it was, we cannot say that it likely deprived the defendant of a substantial ground of defense.

For these reasons, the judgments are affirmed, as are the orders entered on October 13, 2017, November 7, 2017, and May 7, 2018, denying the motions for new trial and for reconsideration.

So ordered.

Affirmed

FOOTNOTES

2.   Trial counsel stated: “I agree with you that the subject of why [the mother] didn't go [to the police sooner] is fairly open. I'm concerned that she might be asked a question that her response [would] be, Because I didn't get the full information until ․ I'm just afraid that the answer might then bring in the fact of subsequent reports, even other than the one that the jury can infer existed, the second one. And that then, the bell having been rung, we're going to have a problem.”

3.   The defendant also argues that trial counsel's closing shifted the burden of proof away from the Commonwealth. Having read the comments in context, we are persuaded that the jury would not have understood them in the way the defendant argues. We note also that the judge's instructions clearly and forcefully instructed the jury on the burden of proof.