COMMONWEALTH v. SMITH (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is a consolidated appeal from the Superior Court orders denying the defendant's first and second motions for a new trial.² On November 14, 2012, the defendant was convicted by a jury of one count of rape of a child (G. L. c. 265, § 23), three counts of aggravated rape of a child (G. L. c. 265, § 23A [a] ), four counts of incest (G. L. c. 272, § 17), and one count of indecent assault and battery on a child (G. L. c. 265, § 13B). We affirm.

The victim accused the defendant, her biological father, of repeatedly raping her beginning when she was five years old, from approximately September 2005 to February 2010. In the winter of 2005 to 2006, the victim's mother noticed that the victim had a bad rash in her genital area. When she questioned the victim about whether anyone had touched her inappropriately, the victim reluctantly admitted that the defendant had. No charges were filed against the defendant until 2010, when the victim and her mother no longer resided with the defendant and the victim had been examined by a board-certified child abuse pediatrician. At trial, the only evidence offered concerning the victim's rash was her mother's testimony that the appearance of the rash triggered her to question the victim, leading to the victim's disclosure. The Commonwealth offered no expert witness testimony regarding the rash or its significance.

The sole issue the defendant raises for the first time in his second motion for a new trial is that his trial counsel provided ineffective assistance by failing to hire, or to seek funding to hire, an expert to testify about noncriminal causes of “diaper rash.” “If a defendant fails to raise a claim that is generally known and available at the time of trial or direct appeal or in the first motion for postconviction relief, the claim is waived.” Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). See Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001). Waived claims are reviewed solely to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 461 (2004).

To establish a claim for ineffective assistance of counsel, one must demonstrate “serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer ․ [and that such behavior] has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made.” Commonwealth v. Martin, 427 Mass. 816, 822 (1998).

Here, the defendant has not included an affidavit from his trial counsel nor reasons why one could not be obtained. The defendant does not explain why he could not have raised this claim in his direct appeal or in his first motion for a new trial, or whether his trial counsel considered hiring such an expert. See Commonwealth v. Lopez, 426 Mass. 657, 665 (1998). Additionally, the defendant offers nothing about what testimony an expert witness would have given, and why it would have been of significant assistance to him. See Commonwealth v. Alicea, 464 Mass. 837, 850-852 (2013). Finally, the defendant has failed to show that the strategic decision by his trial counsel not to hire an expert, or to seek funds to hire an expert to testify to alternative causes of diaper rash was manifestly unreasonable when made.³ Neither the defendant's affidavit in support of his second motion for a new trial nor this appeal establishes that not having an expert testify about diaper rash deprived the defendant of “an otherwise available, substantial ground of defence.” Saferian, 366 Mass. at 96.

For these reasons, we conclude that there was no error in denying the defendant's second motion for a new trial and therefore no substantial risk of a miscarriage of justice.

Orders denying first and second motions for new trial affirmed.

FOOTNOTES

2.   Although this is a consolidated appeal, the defendant argues issues related solely to his second motion for a new trial. The defendant's direct appeal was heard by a different panel of this court and resulted in affirmance of the judgments. See Commonwealth v. Smith, 87 Mass. App. Ct. 1128 (2015).

3.   For example, given that “expert testimony ‘is admissible if, in the judge's discretion, the subject is not within the common knowledge or common experience of the jury,’ ” Commonwealth v. Hudson, 417 Mass. 536, 540 (1994), quoting Commonwealth v. Francis, 390 Mass. 89, 98 (1983), trial counsel may have decided that the jurors had a general awareness that diaper rash is a common problem in infants and children who were not sexually abused.