COMMONWEALTH v. NYLANDER (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is the defendant's appeal from the order denying his fifth motion for a new trial following his conviction of rape by natural sexual intercourse of a child under sixteen. The facts of the case are described in our decision affirming the judgment on that conviction and vacating the judgment on his conviction of rape by unnatural sexual intercourse of a child under age sixteen, Commonwealth v. Nylander, 26 Mass. App. Ct. 784 (1989). Many of his arguments are estopped by that decision and our decision affirming an order denying a previous motion for a new trial, Commonwealth v. Nylander, 86 Mass. App. Ct. 1120 (2014). See Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005).

The defendant first argues that his right to the effective assistance of counsel was violated. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). His allegations that counsel did not visit him while he was in pretrial detention, did not order a competency test, and did not conduct a meaningful pretrial investigation were all rejected by our 2014 decision, and the defendant is therefore estopped from raising them again. He asserts that counsel violated the ethical duty of competence but does not say how, which is insufficient to show that counsel's behavior fell “measurably below that which might be expected from an ordinary fallible lawyer.” Id.² The defendant also argues that counsel was ineffective because he represented the defendant in his direct appeal without the defendant's consent. Assuming without deciding that this would constitute ineffective assistance of counsel in the circumstances of this case, the record contains no factual support for the defendant's claim that he did not consent to counsel's representation of him on direct appeal. The defendant's affidavit states only that counsel represented him on direct appeal. It does not refer to lack of consent.

In the defendant's fifth motion for a new trial, he captioned his second principal argument “constitutionally illegal sentence and statute,” but, as he clarified at oral argument, he is claiming more than that his sentence violated the statute, which it did not: the statute, G. L. c. 265, § 23, allows punishment for life or any term of years. He argues first that the trial judge erred by not giving a lesser included offense instruction for indecent assault and battery of a child. This argument fails because, in 1984, at the time of the offense, “indecent assault and battery of a child required proof of lack of consent or capacity to consent, an additional fact not required in statutory rape.” Commonwealth v. LeFave, 407 Mass. 927, 943 (1990). See Commonwealth v. Howze, 58 Mass. App. Ct. 147, 150 n.2 (2003) (“Prior to the 1986 amendment of G. L. c. 265, § 13B, conviction of indecent assault and battery on a child required proof of lack of consent [or of lack of capacity to consent]. That element was removed by St. 1986, c. 187”). Therefore, at the relevant time, indecent assault and battery of a child was not a lesser included offense of statutory rape. The omission of the instruction was proper.

The defendant also argues, under the rubric of an illegal sentence, that the evidence was insufficient. This argument was rejected in the direct appeal, and the defendant is therefore estopped from making it. In any event, we agree with our prior decision that the testimony of the victim, who was five years old at the time of the incident, that the defendant touched her “private spot” with his “private spot,” plus the victim's indicating on anatomically correct dolls that these meant the defendant's penis and her genital opening, constituted sufficient evidence of rape of a child under sixteen. See Nylander, 26 Mass. App. Ct. at 785-786.

The defendant also argues under the “illegal sentence” rubric that the trial judge erred by admitting in evidence medical records of a “Bunting Nylander,” which indicated that the patient had suffered from gonorrhea, with which the victim was also afflicted. The defendant is also estopped from raising this argument, which was rejected in the direct appeal. In any event, our prior decision was correct that there were sufficient facts to identify “Bunting” as the defendant. There was evidence that the defendant's middle name started with a “B,” the hospital records included a treatment record of “Isaac Nylander,” and they referenced the defendant's wife as an emergency contact. See id. at 792-793. There was therefore sufficient foundation to admit the medical records.

The defendant's third principal argument raises allegations of prosecutorial misconduct. He first argues that the prosecutor withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). However, the defendant does not specify which evidence he alleges was withheld, and our 2014 decision rejected such an argument. The argument appears to be estopped, but, even if it was not, the defendant has not described his claim in sufficient detail to permit us to evaluate it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1630 (2019).

The defendant also argues that the prosecutor misstated evidence in closing and made improper comments. The defendant specifically mentions four alleged instances of misconduct: (1) references to the defendant and his children as “Ice,” (2) a reference to the innocence of the child victim in an attempt to gain sympathy with the jury, (3) references to witnesses by their first names, and (4) statements about how the prosecutor does not have to explain the psychology of a woman, and that the defendant treats women as punching bags and children as objects of desire. Our 2014 decision rejected the defendant's objections to the first two comments, and he is therefore estopped from objecting to them here. As to the third and fourth comments, they were not the subject of the defendant's fifth motion for a new trial, were not addressed by the motion judge in the first instance, and are thus waived.

The order denying the defendant's motion for a new trial is affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   The defendant might have meant that the failures listed above were violations of the duty of competence. But the violation of the duty of competence is not a ground for a new trial unless it also constitutes ineffective assistance of counsel, an argument our 2014 decision rejected with respect to the alleged failures listed above. See Saferian, supra at 96-99 (incompetence of counsel must deprive defendant of otherwise available substantial ground of defense, giving rise to ineffective assistance of counsel claim).