COMMONWEALTH v. BARJOLO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a four-day trial, a Superior Court jury acquitted the defendant of rape, but found him guilty of assault with intent to rape and indecent assault and battery on a person over age fourteen.¹ The defendant filed a motion for new trial, which the trial judge denied. In this consolidated appeal, we affirm.

Background. 1. Jury trial. We summarize the relevant trial testimony, and reserve specific facts for later discussion. In January of 2011, the mother of the twenty-one year old victim “kicked [the victim] out of the house” after she discovered the victim had stolen painkillers from her. The victim then checked herself into the Brattleboro Retreat rehabilitation center, but decided to leave after just five days. She began living out of her car and staying at homes of friends and acquaintances. It was through one such acquaintance, whom the victim referred to as “Abe,” that the victim first met the defendant. In February 2011, at “a small get-together” at Abe's house, the victim and the defendant met and had consensual sex. Subsequently, the victim and the defendant would sometimes “hang out ․ together” at Abe's house, but they had no relationship beyond that. In fact the victim did not know the defendant's last name.

2. The assault. Several weeks later, on February 25, 2011, the defendant asked the victim to pick him up from a mall. She agreed, and when she arrived at the mall the defendant was with another man she did not know, later identified as Camilo Velez. The men directed the victim to drive to several locations, and they eventually ended up at Velez's apartment in Worcester. Upon entering the apartment, they all went into the living room and sat down on couches.² The two men started speaking to one another in a language the victim did not know. Then, they asked the victim to put down her cellular telephone, “focus on them,” and “stop being a baby” and smoke marijuana with them. Even though the victim felt uncomfortable and did not want to smoke, she eventually gave in.

According to the victim's testimony, Velez left the room briefly, and when he returned he locked the door behind him. He sat back down on the couch next to the victim and unzipped his pants, grabbed the victim's hand, and put it on his penis. When she pulled away from him, he “grabbed [her] hair, and twisted [her] down, so [she] was kneeling on the ground” and forced her to perform oral sex on him.³ While this was happening, the defendant came up behind the victim, pulled down her pants and “tried to put his penis into [her] vagina.” The victim explained that the defendant put his hands on her “butt/thigh” area and tried to pry her legs apart but was unable to penetrate her. He then took off his condom, turned it inside out, and gave it to Velez, who grabbed the victim and forced her on top of him. Velez then penetrated the victim's vagina with his penis and the defendant observed while masturbating and laughing. According to the victim, the defendant later “came over and pinned [her] to the couch” with his legs and forced her to perform oral sex on him. She tried, but was unable, to push him off of her.

Eventually, the victim told the men that she had to go but that she would be back later, because she was “scared what they would do.” She then drove to meet her old boss, but did not tell him what had happened to her. For the next several hours, the victim communicated with various people via text messages, but did not tell any of them what had happened to her because she felt embarrassed and violated, and she was worried she would be judged. Eventually, she called her former boyfriend, and told him about the assault. He then met the victim at the Worcester Police Department, where she reported the incident to the police. The former boyfriend, who testified at trial as the first complaint witness, stated that when the victim called him she was “extremely upset” and sounded “very scared.”

3. Trial testimony about the victim's mental capacity and health. Both the victim and her mother testified at trial as to her mental capacity. For example, the victim testified that she attended a high school program specifically for students with learning disabilities, and her mother explained that the victim had severe anxiety and delayed speech, and that “she takes a long time to recollect” things. There also was testimony that the victim had posttraumatic stress disorder (PTSD), and that she previously had suffered from an eating disorder. Defense counsel attempted to elicit additional testimony from the victim's mother regarding her tumultuous relationship with the victim, and the severity of the victim's mental health history. However, the mother responded in the negative to all such questions ⁴ and defense counsel truncated his cross-examination. In lieu of impeaching the mother using police reports from incidents in which the police responded to the mother's home, counsel attempted to summons Auburn police officers to testify about the incidents, but they apparently declined to do so based on late notice. Both the judge and the prosecutor endorsed the idea of having the mother recalled to give the defendant the opportunity to ask further questions about the incidents in which the Auburn police responded to the mother's home. Defense counsel ultimately declined that offer.

4. Evidentiary hearing. Following the trial and subsequent convictions, the defendant filed a motion for new trial, based on assertions of ineffective assistance of counsel and “newly discovered evidence.”⁵ The defendant submitted two brief affidavits from his trial counsel, but chose not to call him as a witness at the evidentiary hearing. The only witness that the defendant called was Melissa Perry, a registered nurse and director of behavioral health nursing at the Holyoke Medical Center.⁶ Perry testified that she had reviewed numerous records -- including the victim's hospital records, psychological evaluations, and various police reports involving the victim -- and when asked whether these records contained any factors that would “affect [the victim]'s ability to perceive, recall, and honestly report,” she referenced diagnoses for PTSD and borderline personality disorder. Perry explained that “typical manifestations” of borderline personality disorder included a “severe fear of abandonment,” “sexual dysfunction issues,” and engaging in “high-risk[ ] behaviors.” On cross-examination, Perry conceded that the victim had never actually been diagnosed with borderline personality disorder, but rather with a personality disorder “not otherwise specified,” with “borderline features.” Perry also testified on cross-examination that the victim had been diagnosed with “pervasive developmental disorder, ․ possibly Asperger's.”

Dr. Hanya Bluestone, a licensed psychologist, testified as a rebuttal witness for the Commonwealth. Bluestone also reviewed the victim's records and testified as to her various clinical diagnoses. She explained that, to her knowledge, neither lying nor promiscuity were directly correlated with borderline personality disorder. She also noted that the only mention in the records of the victim lying was from when she was about thirteen years old. Notably, Bluestone also testified that individuals with Asperger's or pervasive developmental disorders tended to be less able to lie than most people.

The judge denied the motion for new trial, “adopt[ing] in its entirety the Commonwealth's reasoning in support of its opposition to” the defendant's motion. With respect to the claim of ineffective assistance, the judge concluded that trial counsel had made decisions that “were prudent and reasonable under the circumstances.” With regard to the claim of newly discovered evidence, the judge concluded that the defendant had failed to show that the evidence was in fact not available at the time of trial, or that there was a “substantial risk that the jury would have reached a different conclusion had the [newly discovered] evidence been admitted at trial.” Commonwealth v. Grace, 397 Mass. 303, 306 (1986).

Discussion. 1. Standard of review. The defendant raises the same claims on appeal that he raised in his motion for new trial, namely that trial counsel was ineffective for various reasons, and that key evidence now exists that was “not available” at the time of trial. Judges may grant a new trial only “if it appears that justice may not have been done.” Mass. R. Crim P. 30 (b), as appearing in 435 Mass. 1501 (2001). “A motion for a new trial is addressed to the sound discretion of the judge,” and we review “only to determine whether there has been a significant error of law or other abuse of discretion” (quotation and citation omitted). Commonwealth v. Cavitt, 460 Mass. 617, 625 (2011). “We accord substantial deference to a judge's decision on a new trial motion where, as here, that judge also was the trial judge.” Id.

2. Ineffective assistance of counsel. When analyzing a claim for ineffective assistance of counsel, we must first determine “whether 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 so, we then look to “whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Id. “A defendant seeking a new trial based on a claim of ineffective assistance of counsel bears the burden of establishing both prongs of the Saferian test.” Commonwealth v. Sullivan, 469 Mass. 621, 629 (2014). We are deferential to defense counsel's strategic decisions at trial, and adhere to a “strong presumption that counsel knows best how to defend a client.” Commonwealth v. Glover, 459 Mass. 836, 843 (2011). See Commonwealth v. Florentino, 396 Mass. 689, 690 (1986).

a. Failure to present evidence of the victim's reputation for dishonesty. The defendant's first argument -- that trial counsel was ineffective for failing to introduce evidence of the victim's reputation for dishonesty -- merits little discussion. The defendant contends that if trial counsel had done a more thorough investigation, he would have learned of the victim's reputation for dishonesty and could have found a witness to testify to that fact. Prior to the evidentiary hearing, the defendant submitted an affidavit, purportedly signed by Abraham Sellie (“Abe,” the defendant's friend who had first introduced him to the victim), stating that the victim's “reputation was that she was dishonest and was someone who would make false accusations against others.” We agree with the Commonwealth that the affidavit failed to establish that testimony from Sellie about the victim's reputation was supported by an adequate foundation that would render it admissible at trial. See Commonwealth v. Phachansiri, 38 Mass. App. Ct. 100, 109 (1995); Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933-934 (1981).

In addition, we note that, as established by his affidavit, trial counsel was unable to identify a reliable witness who could testify to the victim's reputation because of her “transientness.” Instead, counsel decided to put forth “concrete, demonstrable examples” of the victim's lies, which he thought “were much more powerful than any potential reputation testimony.” During cross-examination, defense counsel effectively elicited that the victim had not told the truth on several occasions.⁷ Counsel's failure to put forward a witness to speak to the victim's reputation for honesty did not fall “measurably below that which might be expected from an ordinary fallible lawyer.” Saferian, 366 Mass. at 96.

b. Failure to impeach the victim with inconsistent statements. The defendant next argues that defense counsel was ineffective for failing to impeach the victim with inconsistencies regarding the accounts she had given of having been robbed during the year that preceded the incident at Velez's apartment. In 2010, the victim worked as a sales clerk at two different Walgreens pharmacies. She testified that she was robbed at knifepoint at a Walgreens in Worcester in August of 2010, and then several months later, in December of 2010, she was robbed at gunpoint at a Walgreens in Fall River.⁸ The defendant contends that the victim has suffered “an oddly high number of violent attacks,” and emphasizes that these incidents “coincided with her gaining support from her mother,” thereby suggesting a motive for the victim to lie.

The Commonwealth provided the judge with police reports from both Walgreens robberies, which largely corroborated the victim's testimony about them. Moreover, trial counsel sent an investigator to speak with the victim's boss at the Worcester store who confirmed that the victim “left their store because someone tried to rob her and pulled a knife on her.” The record indicates that on both occasions the victim was present when items were stolen and that she was threatened with weapons; any potential impeachment value lay -- at most -- in trying to show that the victim might have slightly exaggerated the incidents.

“Impeachment of a witness is, by its very nature, fraught with a host of strategic considerations, to which we ․ show deference ․ [and] absent counsel's failure to pursue some obviously powerful form of impeachment available at trial, it is speculative to conclude that a different approach to impeachment would likely have affected the jury's conclusion.” Commonwealth v. Garvin, 456 Mass. 778, 792 (2010), quoting Commonwealth v. Hudson, 446 Mass. 709, 715 (2006). In his affidavit, trial counsel explained that he was sensitive about “walking a fine line between” highlighting issues that could diminish the victim's credibility and those that could make her into a more sympathetic witness. He believed he “effectively demonstrated [the victim's] capacity to lie through [the Brattleboro Retreat records], her testimony, and her mother's testimony.” “Where, as here, the defendant's ineffective assistance of counsel claim is based on a tactical or strategic decision, the test is whether the decision was manifestly unreasonable when made ․ [O]nly strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent are manifestly unreasonable” (quotations and citations omitted). Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015). Especially where the Walgreens robberies were only a peripheral issue at trial, counsel's strategic decision plainly was not manifestly unreasonable. Id.

c. Failure to utilize a psychological expert. The defendant argues that the victim's mental health diagnoses could have impacted her credibility at trial, and that therefore it was manifestly unreasonable for trial counsel not to consult with an expert (regardless of whether that expert was called to testify). Defense counsel explained that he chose not to call an expert witness because such a strategy “ran too significant a danger in adding to the sympathy for the alleged victim.” He did not consult with an expert because he concluded that “the records were relatively straight forward” and that he “did not need an expert to educate [him].” Under the particular facts of this case, there is at least some force to the defendant's argument that his counsel's failure to consult with a psychological expert fell “measurably below that which might be expected from an ordinary fallible lawyer.” Saferian, 366 Mass. at 96. After all, the victim's medical records -- to which defense counsel had access -- reveals that the victim had been hospitalized for psychiatric problems eleven times and at one point in the past had “heard voices telling her to kill people.”

Nevertheless, assuming, without deciding, that the defendant met the first prong of the Saferian test, he has not shown that the second prong was satisfied. Id. At the evidentiary hearing on the motion for new trial, the defendant was armed with the expert that he claims he should have had at trial. Yet, the testimony that the expert provided to aid the defendant's case was underwhelming. To the extent that the defendant's expert laid claims about how the victim's mental health disorders might manifest, the Commonwealth countered such claims through its own rebuttal expert witness. Nor did the defendant offer any testimony as to what material assistance the expert would have provided apart from testifying. In sum, we conclude that the defendant has not shown that the absence of an expert at trial “likely deprived the defendant of an otherwise available, substantial ground of defence.”⁹ Id.

d. Failure to impeach the victim's mother. The defendant next argues that trial counsel was ineffective for failing adequately to impeach the victim's mother. It is evident that at trial, counsel was caught off guard when the victim's mother answered in the negative to several of his questions, including, for example, whether the victim had ever called the police on the mother.¹⁰ However, instead of clarifying his questions with specific dates, rephrasing his questions, or impeaching the mother with documents he had at his disposal, counsel cut short his cross-examination of the mother. As noted, counsel attempted to summons Auburn police officers in order to impeach her regarding these incidents, but the Auburn chief of police refused to honor the summonses because they were “so last minute.” The judge and the prosecutor then offered to summons the mother for the following day, so that counsel could “quiz her specifically about these things,” but counsel ultimately decided not to recall her.¹¹

In arguing that trial counsel's failure to impeach the mother fell “measurably below that which might be expected from an ordinary fallible lawyer,” the defendant focuses on the net result that a potentially rich source of impeachment was left unmined. A fairer assessment of counsel's performance would take into account that he initially passed over pursuing such impeachment in favor of pursuing the potentially more successful impeachment strategy of summonsing testimony from Auburn police officers, and that -- when the chosen strategy proved problematic -- he passed over having the mother recalled for other strategic reasons. In any event, we need not decide whether the first prong of Saferian has been met, because, again, the defendant has not met the second prong. See Saferian, 366 Mass. at 96. The key issue before the jury was not the mother's credibility, but rather the credibility of the victim and of the defendant. At trial, the jury were able to hear the victim testify at length about the assault, and the victim was also subjected to extensive cross-examination. In addition, a video recording of the defendant's interview with police was entered in evidence, so the jury were able to watch as the defendant forcefully denied the allegations against him. Further, although the jury did not hear the full extent of the victim's mental health history, they were well aware that she had many limitations. For example, the jury heard that the victim had given inconsistent stories to the police, that she was addicted to drugs, and that her relationship with her mother was so fractured that the mother had kicked her out of the house. For these reasons, we cannot say that counsel's failure to impeach the mother “likely deprived the defendant of an otherwise available, substantial ground of defence.” Id.

3. “Newly discovered evidence” claim. We need only briefly discuss the defendant's newly discovered evidence claim. At Velez's trial, Christopher Minichilli, the man previously identified as Velez's “uncle” and who was present in Velez's apartment on the day of the incident, was called as a defense witness. He testified that the door to the living room -- where the victim testified the rape occurred -- never had a lock on it. This testimony conflicted with testimony from both the victim and the detective at the defendant's trial. Minichilli also testified that he did not hear any “screaming” or “rumbling” coming from the living room that afternoon.

We agree with the judge that the defendant failed to show that Minichilli's testimony was newly discovered, or that he was unavailable to testify at the time of trial. There was never any dispute that Minichilli was present on the day of the incident; in fact, the victim testified at trial that she met him when she first entered Velez's apartment. Further, trial counsel explained in his supplemental affidavit that Minichilli was uncooperative with his investigator and “did not want to get involved” in the case, so trial counsel chose not to call him as a witness at trial. Thus, it was not an abuse of discretion for the judge to deny the motion for new trial on this ground.¹² See Commonwealth v. Cowels, 470 Mass. 607, 615-617 (2015).

Conclusion. The defendant asks that we grant a new trial based on a “confluence of factors” that “taken together could have influenced the jury's verdicts.” Commonwealth v. Rosario, 477 Mass. 69, 78, 81 (2017). In the end, a new trial is warranted only when “it appears justice may not have been done.” Mass. R. Crim. P. 30 (b). Although the defendant may not have received a perfect trial, he did receive a fair one. See Commonwealth v. Lodge, 431 Mass. 461, 476 (2000) (criminal “defendant is entitled to a fair trial, not a perfect one”).

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

1.   He separately pleaded guilty to unlawfully carrying a dangerous weapon.

2.   A fourth person was also in the apartment when they arrived, and he was introduced to the victim as Velez's “uncle.”

3.   The criminal case against Velez was severed from the defendant's because Velez made a statement to police that implicated the defendant. Velez was ultimately convicted of all charges against him.

4.   Defense counsel asked the mother if the victim had “dialed 911 on [the mother] a couple times,” whether the mother had ever “tried to have [the victim] committed through the court system,” and if “[t]he Auburn Police [ever] came to [the mother's] house [in response to an] argument.” The mother answered “no” or “[t]hat's not true” to all such questions. At sidebar, and again on appeal, the Commonwealth argued that based on the specific phrasing of the cross-examination questions posed to the mother, much of her testimony was not inconsistent with the Auburn police reports.

5.   As later detailed, the “new evidence” had to do with testimony provided at Velez's subsequent trial by his “uncle.”

6.   Perry had no training as a forensic clinician and had never before testified as an expert in a criminal trial.

7.   For example, he highlighted that, when the victim first spoke to the police, she left out that she had consensual sex with the defendant once before.

8.   The victim explained that, as a result of these events, she was prescribed Percocet “for the pain.” Although the victim began “using opioids, benzos, and binging on alcohol” in August 2010, her drug and alcohol abuse “drastically escalated” in December 2010 following the second robbery.

9.   Commonwealth v. LaBrie, 473 Mass. 754, 771-774 (2016), on which the defendant relies, is not to the contrary. There, the judge found trial counsel ineffective for failing to have an independent oncologist testify with respect to why a parent might fail to properly medicate his or her child. The judge determined that prong two of the Saferian test was met because one of the central issues before the jury was the intent of the defendant, who was the victim's mother, and defense counsel chose not to consult an expert who could have “identif[ied] explanations other than an intent to kill the child for a parent's decision not to give medications.” Id. at 772. That is a very different context from the one before us, where the expert testimony would have gone to whether the victim's psychological issues affected her credibility.The substantive context of this case is closer to another case on which the defendant relies, Commonwealth v. Polk, 462 Mass. 23, 35-39 (2012), but the procedural context of Polk is markedly different. In Polk, the Supreme Judicial Court ruled that a trial judge erred by excluding expert psychological testimony regarding the victim. The claim of error was preserved, so the prejudicial error standard applied. In the case before us, by contrast, the defendant has to show that he was deprived of a substantial ground of defense, a standard that is comparable to demonstrating a substantial risk of a miscarriage of justice. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.4 (2002) (“The test in [Saferian, 366 Mass. at 96], and the substantial risk of a miscarriage of justice test are, substantively, two sides of the same coin”).

10.   At sidebar, defense counsel divulged that “never in [his] wildest dreams” did he imagine that the mother would “deny that she called the police on her child and her child called the police to come during their arguments.”

11.   In his affidavit, defense counsel explained that, after weighing the decision whether to recall the mother, he decided that the evidence of the mother's relationship with the victim that had already been admitted at trial “had a much larger impact” than any additional testimony he could possibly have elicited from the mother, noting that he did not know how the mother would respond. He also articulated that he was wary of the prosecution potentially being able to rehabilitate the mother, and that he “did not want the jury to have the mother as the last witness they saw right before closing arguments.” However, at trial, defense counsel did acknowledge that not confronting the mother with specific dates, especially since, as the judge pointed out, he had the police reports with him when the mother was testifying, was a “failure as a defense attorney representing [the defendant].”

12.   We also agree with the judge's conclusion that Minichilli's testimony would “probably [not] have been a real factor in the jury's deliberations” in this case, since Minichilli's testimony was rebutted by a detective at Velez's trial, and Velez was subsequently convicted of all charges. Commonwealth v. Cowels, 470 Mass. 607, 617 (2015), quoting Grace, 397 Mass. at 306.