COMMONWEALTH v. FOREMAN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this consolidated appeal, the defendant challenges his convictions of assault and battery, intimidation of a witness, and three counts of aggravated rape of a child, and the denial of his motion for a new trial. On appeal, he argues that his motion for a new trial based on ineffective assistance of counsel, which was heard by the same judge who presided at trial, should have been allowed where trial counsel (1) called as an expert a doctor whose testimony bolstered the Commonwealth's evidence, and (2) frustrated an investigator's efforts to establish an exculpatory timeline of events by providing the investigator with inaccurate information. Additionally, the defendant argues that his convictions should be overturned based on the cumulative prejudice of three misstatements of fact and improper vouching for a witness in the Commonwealth's closing argument. We affirm.

1. Background. We recite the facts that the jury could have found, reserving certain information for discussion below. The victim was the ten year old daughter of a woman whom the defendant was dating. On July 31, 2014, the defendant picked the victim up at her home in order to take her to her summer camp. In the course of driving the victim from her home to the camp, the defendant changed vehicles and made three intermediate stops. During the second and third stops, the defendant raped the victim vaginally and anally, and put his penis in her vagina, anus, and mouth. The defendant then drove the victim to camp. Shortly after arriving at camp, the victim reported the rapes and was taken from the camp to a hospital. Examination on that day revealed a laceration to the victim's vaginal area; a subsequent examination four days later also revealed swelling of the victim's anus and bruising to her hymen.

2. Discussion. a. Motion for a new trial. A judge may allow a motion for a new trial “if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We review a postconviction motion for “a significant error of law or other abuse of discretion” (quotation and citation omitted). Commonwealth v. Forte, 469 Mass. 469, 488 (2014). “Reversal for abuse of discretion is particularly rare where the judge acting on the motion [for a new trial] was also the trial judge.” Commonwealth v. Rice, 441 Mass. 291, 302-303 (2004), quoting Commonwealth v. Schand, 420 Mass. 783, 787 (1995). Where, as here, the defendant argues ineffective assistance of counsel, we consider “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” and, if so, “whether it 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.”³ Commonwealth v. Hudson, 446 Mass. 709, 716 (2006), quoting Commonwealth v. Martin, 427 Mass. 816, 822 (1998).

i. Dr. Stuart. We turn first to trial counsel's decision to call a medical expert, Dr. Stuart. As trial counsel's statement to the judge at sidebar suggests, in calling Dr. Stuart, trial counsel expected that Dr. Stuart would testify that the victim's genital laceration was up to twenty-four hours old, testimony that would have expanded the timeframe during which the injuries could have been caused by up to twelve hours, as compared to the Commonwealth's evidence.⁴ While the judge ultimately limited Dr. Stuart to testifying to an eighteen-hour timeframe, the judge's ruling was made after Dr. Stuart had been called, and while he was on the witness stand.⁵ Assessing trial counsel's strategy at the relevant time -- when he called Dr. Stuart -- we conclude, as did the judge below, that the strategy was reasonable.⁶ See Commonwealth v. Velez, 479 Mass. 506, 513 (2018). See also Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478 Mass. 189 (2017). In addition to providing evidence that the laceration injury occurred well before the times of the rapes alleged by the victim, Dr. Stuart's testimony also called into question the existence of at least some of the victim's genital and anal bruising to which the Commonwealth's experts testified, and permitted trial counsel to argue at a minimum that the bruising was not present at the time of the initial examination.

The fact that some of Dr. Stuart's testimony on cross-examination was unhelpful does not change our conclusion. The risk that a witness will give harmful testimony on cross-examination is “implicit”; in this case, it did not render the decision to call Dr. Stuart unreasonable, given trial counsel's expectation that Dr. Stuart's direct testimony would aid the defense on the significant issue of wound aging. See Commonwealth v. Martino, 412 Mass. 267, 289 (1992) (“A new trial is not warranted simply because this strategy was not so successful as originally planned”). Even assuming the decision to call Dr. Stuart was unreasonable, in the face of overwhelming evidence of traumatic injury to the victim's vagina, Dr. Stuart's testimony about the likely mechanism of the laceration injury did not deprive the defendant of a substantial ground of defense. See Saferian, 366 Mass. at 96.

ii. Investigator. Turning to trial counsel's providing the defendant's investigator with the wrong address for the victim's summer camp, although we conclude that trial counsel's actions were substandard, we agree with the judge that trial counsel's conduct did not deprive the defendant of a substantial defense in this case. See Saferian, 366 Mass. at 96. The evidence at trial was that the defendant picked the victim up at her home “before 7:30 [a.m.]” and dropped her at the camp at “close to 9:00 [a.m.].” The defendant's girlfriend (girlfriend), not to be confused with the victim's mother whom the defendant was also dating, testified that the defendant spent the night at her house, left in the morning with her car, and returned to her home approximately “forty-five minutes to an hour” later. As the judge correctly noted, the success of the timeline defense depended on the reliability of the girlfriend's testimony about the total time that the defendant was absent from her home. The judge, to whom we accord “special deference” in our assessment of the motion for a new trial, concluded that the girlfriend's testimony was not reliable. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We see no basis to reject the judge's conclusion on that point. In the absence of reliable testimony limiting the total time of the defendant's trip, and given that trial counsel was still able to argue (as he did) that the times “[did not] even come close to adding up,” the defendant was not deprived by trial counsel's error of a substantial ground of defense.⁷

b. Prosecutor's closing argument. We are likewise unpersuaded by the defendant's contention that the prosecutor's closing argument included errors which, cumulatively, require a new trial.

First, the defendant mischaracterizes as “vouching” the prosecutor's statement that the victim testified “very accurately and very reliably.” “Improper vouching occurs when ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.’ ” Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 10 (2019), quoting Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). By contrast, a prosecutor “may state logical reasons why a witness's testimony should be believed.” Commonwealth v. Sanders, 451 Mass. 290, 297 (2008). Here, and in context, the prosecutor's argument was that the victim's “accura[cy]” and “reliab[ility]” were established by the evidence at trial, including the corroborating testimony of other witnesses and the medical evidence in the case. This argument, rebutting trial counsel's attack on the victim's credibility, included no impermissible suggestion that the prosecutor was speaking from personal knowledge independent of the evidence. See Commonwealth v. Raposa, 440 Mass. 684, 694-695 (2004); Sanchez, supra at 10.

Next, the defendant argues that the prosecutor made three misstatements of fact that together rise to reversible error. In assessing the defendant's argument, we consider the prosecutor's words “in the context of the entire argument, the testimony, and the judge's instruction to the jury.” Commonwealth v. Hrabak, 440 Mass. 650, 654 (2004). We take into account “(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions.” Commonwealth v. Diaz, 478 Mass. 481, 487 (2017), quoting Commonwealth v. Kater, 432 Mass. 404, 422-423 (2000). As the defendant did not object to any of the statements at issue, we review to determine, if there was an error, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Loguidice, 420 Mass. 453, 455-456 (1995).

The statements at issue went to the defendant's demeanor when he returned to the camp on the afternoon of the rapes, trying to pick the victim up;⁸ the victim's ignorance of the fact that a medical examination performed after her report would support her account of the rapes;⁹ and to “everyone['s] agree[ment]” that the victim's injuries could only have been the result of an “assault.”¹⁰ As to the prosecutor's statements about the defendant's demeanor, we see little functional difference between a defendant's being “nervous” and “shaking” and being “anxious” and “pacing.” Perhaps more importantly, we consider that these descriptions were only a part of a greater body of evidence at trial that might have spoken to the defendant's consciousness of guilt. We cannot envision any impact that this particular statement had on the jury.

The second statement goes to the victim's credibility, a central issue in the case, but again, given the jury's opportunity to assess the victim's credibility based on their own observations, and the judge's instructions defining evidence and explaining the permissible considerations in deciding issues of credibility, we conclude that this statement was not fatally prejudicial.

The last statement gives us pause, but in context, we agree that the “everyone” to which the statement refers is limited to experts, and did not suggest that the defendant had conceded this point. While the question of how the victim's injuries were caused was central to the case, we conclude that in light of all of the evidence in the case, and in consideration of each of the relevant factors listed above, neither this statement alone, nor the highlighted statements taken together, presents a substantial risk of miscarriage of justice in the prosecutor's statements. See Commonwealth v. Pope, 406 Mass. 581, 588 (1990).

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

3.   The defendant did not provide an affidavit of trial counsel in support of the motion for a new trial. We do not agree with the defendant that the trial transcript necessarily provides an adequate substitute for such an affidavit, even where, as here, trial counsel's statements may explain some of his tactical choices. Regardless, the absence of the affidavit is not fatal to the defendant's motion, although the fact of its omission is a permissible factor in a judge's ruling on a motion for a new trial. See Commonwealth v. Vaughan, 471 Mass. 398, 405 (2015).

4.   We recognize that the Commonwealth's evidence included evidence of a longer window, but defer to the judge's assessment of that evidence and to her determination that the weight of the prosecution's evidence suggested a twelve-hour timeframe. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986) (“A reviewing court extends special deference to the action of a motion judge who was also the trial judge”).

5.   Dr. Stuart had, in fact, already testified to the twenty-four hour timeframe; the judge struck that testimony.

6.   The strategy would still have been reasonable, even if trial counsel had anticipated that Dr. Stuart's opinion would be limited to the eighteen-hour timeframe he was ultimately permitted to offer. Even at eighteen hours, Dr. Stuart's testimony gave the defendant a basis on which to argue that the injury occurred six hours earlier than the Commonwealth's theory and evidence allowed, into a period for which the defendant had an alibi.

7.   To the extent that, as the defendant argues, trial counsel's error came out before the jury in a way that could have suggested to the jury that the defendant was trying to trick them, we consider that the testimony in which the error came out was not highlighted when given, nor in either party's closing argument, and we see no evidence in the record that it had any harmful effect on the defendant's case.

8.   The prosecutor argued that the defendant acted “nervous” and was “shaking”; the testimony was that the defendant appeared “anxious” and was “pacing.”

9.   The prosecutor argued that the victim “had no way of knowing that when she disclosed what had happened to her, her body would corroborate her. She had no way of knowing that as she described what had happened to her, medical professionals would be able to look at her and see that corroborative evidence.”

10.   Acknowledging the lack of any male DNA in samples taken from the victim, the prosecutor argued, “It's certainly not the case that she wasn't assaulted because everyone agrees that that's the only way she would've -- could've gotten injured the way she did” (emphasis added).