COMMONWEALTH v. GALLANT (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant of two counts of rape of a child (the step-daughter of the defendant's half-sister). The trial judge subsequently denied the defendant's motion for a new trial without a hearing. The defendant appeals from his convictions and the order denying his motion for a new trial. We affirm.

1. Reputation in the community. The defendant's principal argument on appeal is that the judge improperly prevented the defendant from eliciting evidence of the victim's reputation within the community with regard to veracity. We begin by summarizing the unusual trajectory of that issue at trial.

a. Background. Apparently on notice that the defendant intended to try to introduce evidence of the victim's reputation for veracity, the Commonwealth filed a pretrial motion to exclude such evidence. The judge effectively denied that motion without prejudice, deferring the issue until it arose at trial when it could be determined whether the defendant could lay a proper foundation.

The Commonwealth's first witness was the victim's step-mother (the defendant's half-sister). During cross-examination of the step-mother, defense counsel began to ask the step-mother detailed questions about her relationship with her own mother (the victim's step-grandmother and the defendant's mother). For example, defense counsel asked the step-mother how often she spoke to the step-grandmother. After the judge sustained the prosecutor's objections to that and similar questions, the judge agreed to hear counsel at side bar. The prosecutor explained that she was objecting on both hearsay and relevance grounds. Defense counsel stated that she was not going to get into the substance of the conversations between the step-mother and the step-grandmother, but was simply trying to elicit that the two spoke “a lot, and that they discussed all sorts of things.” Defense counsel indicated that she was not going to ask the step-mother about the victim's reputation, but was seeking to lay a foundation to try to ask the step-grandmother about this. After the judge stated that he had not changed his mind with regard to the question about how often the step-mother and the step-grandmother spoke, defense counsel asked a series of similar questions, objections to which were sustained.

The following day, defense counsel moved for a mistrial based on her being denied the ability to inquire about the step-mother's relationship with the step-grandmother. There was a lengthy discussion outside the jury's presence about what had occurred the prior day. During that discussion, the judge made it clear that he had made no decision about whether reputation evidence could come in and that he remained open to allowing it if the defendant could lay a proper foundation. Defense counsel explained that she had been asking questions of the step-mother in order to try to establish the “community” in which the victim's reputation lay. The judge denied the motion for a mistrial and stated that he saw no need to have the step-mother recalled to the stand. At the same time, the judge stated that he “would let [defense counsel] recall the witness if [he] thought [he] kept out something [he] shouldn't have.” He added, “The reputation for veracity, I am not excluding that. We'll see what develops.”

The defendant never called the step-grandmother (the defendant's mother) as a witness. Nor did he seek to elicit the victim's general reputation for veracity from any other witness. However, during the direct testimony of the defendant's step-brother, who was called as a defense witness, defense counsel was allowed to elicit from him that his sister (the victim's step-mother) “would refer to [the victim] as a lying bitch.” The judge allowed that testimony over the Commonwealth's objection after defense counsel complained that she had been excluded earlier in the trial from eliciting evidence of the victim's reputation within the community. The judge stated that he was allowing the “lying bitch” statement in evidence under the “the doctrine of curative admissibility.”

Following the defendant's conviction, he raised the reputation issue in his motion for a new trial. There, as here, he argued first that the judge erred in excluding reputation evidence, and second, that the defendant's trial counsel was ineffective for not pressing the issue after the judge allegedly admitted that he erred by invoking the doctrine of curative admissibility. In denying the motion for a new trial, the judge stated in pertinent part as follows:

“The court correctly foreclosed inquiry of one witness on reputation for veracity. Highly experienced criminal trial counsel later explicitly waived this issue. Experienced trial counsel also elicited that the [victim] was a ‘lying bitch’ -- in retrospect, far more than the defendant was entitled and arguably wholly inadmissible.”

b. Discussion. As an initial matter, we note that the defendant is hard pressed to show that the judge in fact excluded reputation evidence. Throughout the trial, the judge exhibited an openness to allowing such evidence if the defendant could lay a proper foundation for doing so. The most that the defendant reasonably can claim is that the judge did not allow defense counsel to ask questions that she perceived as important for laying such a foundation and that -- frustrated with the judge's rulings -- defense counsel gave up trying to lay such a foundation. However, the defendant has not shown how the specific questions the judge ruled impermissible were essential to defense counsel trying to lay a proper foundation.

More to the point, even to the extent that the judge rebuffed the defendant's efforts to put on reputation evidence, the defendant has not demonstrated that the judge abused his discretion in doing so. It is black letter law that “evidence of specific ․ opinions [of a witness's veracity] may not be used to prove reputation” (quotation and citation omitted). Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980). “The impeaching evidence must be of general reputation and not the private opinions of a few persons.” Id. “[T]he trial judge has discretion to exclude such evidence if he determines that it is based on the opinions of too limited a group.” Id. The defendant's efforts to introduce reputation evidence were based, at most, on the victim's reputation within her step-family. This is simply too limited a group to support a general reputation, even leaving aside the fact that all such putative members of the “community” were close relatives of the defendant.

Finally, as noted, the judge admitted evidence that the victim's step-mother referred to the victim as a “lying bitch.” That testimony was improper even apart from the fact that it was hearsay. LaPierre, 10 Mass. App. Ct. at 871 (specific opinions about witness's veracity inadmissible). We agree with the judge that, in the end, the defendant received more than he was entitled to.

The defendant's argument fares no better when rephrased as a claim that his trial counsel was constitutionally ineffective in her representation of him. Defense counsel cannot be faulted for failing to press an argument that was at odds with the case law. See Commonwealth v. Ortiz-Peguero, 51 Mass. App. Ct. 90, 96 (2001) (defense counsel “was ․ not ineffective for failing to mount a challenge that had no prospect of success”). Moreover, as noted, by securing admission of the “lying bitch” comment, defense counsel achieved more for her client than he was entitled to.

2. Uncharged conduct. The two indictments alleged that the defendant raped a child under sixteen in Peabody on “divers[e] dates” in a particular three-year period (one alleged vaginal rape and the other an oral rape). As the defendant points out, during the victim's three days of testimony detailing rapes that occurred in Peabody, the victim made a passing reference to an oral rape in Wakefield. The prosecutor made nothing of this incident; defense counsel raised it during her closing argument during which she accurately pointed out that the jury could not convict the defendant based on the Wakefield incident, which occurred in a different county. Nevertheless, the defendant now raises the possibility that the jury might have convicted the defendant of rape based on the Wakefield rape, an offense for which he was not indicted. It suffices to say that we agree with the Commonwealth's assertion that the victim's passing reference to the Wakefield incident “buried in three days of testimony about years of abuse in Peabody” had a “negligible impact” on the jury's deliberations. To the extent that the defendant separately argues that evidence of the Wakefield incident constituted improper bad act evidence, we are similarly unpersuaded, especially given that the bad act evidence involved the same victim. See, e.g., Commonwealth v. Butler, 445 Mass. 568, 574 (2005) (prior bad acts may be admitted “to show a common scheme or course of conduct” [quotation and citation omitted] ).

3. Lack of an evidentiary hearing. An evidentiary hearing is required on a motion for a new trial only where a defendant has raised a “substantial issue” that warrants one. Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012). The judge did not abuse his discretion in deciding the defendant's motion without allowing such a hearing. As the Commonwealth points out, the defendant has not even put forward what evidence he had sought to adduce at such a hearing.

Judgments affirmed.

Order denying motion for new trial affirmed.