COMMONWEALTH v. SHURTLEFF (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, George Shurtleff, appeals from his convictions, after a 2015 Superior Court jury trial, of rape of a child aggravated by a ten year age difference, G. L. c. 265, § 23A, and other sex offenses.² The victim was his teenaged stepdaughter, for whom we shall use the pseudonym Ann. The offenses included requiring her to perform oral sex on the defendant and the defendant touching her breasts and vaginal area. The defendant argues that propensity evidence was improperly admitted at trial. He also appeals from the denial of his motion for a new trial, which asserted several claims of ineffective assistance of counsel. We affirm.

1. Asserted propensity evidence. At trial, Ann testified that beginning when she was thirteen years old, when she would ask the defendant for permission to do something such as having friends over to the house, he would condition his agreement on her performing oral sex on him or “flashing” him (showing him her breasts). When she was fifteen years old, in a conversation in the family kitchen before she accompanied the defendant on a trip in his truck, he told her that if she wanted him to agree to her oft-repeated request to get a puppy, she would have to give him three “blow jobs” and “flash him” five times. She then testified that during the trip, when she raised the subject of the puppy, he asked her for oral sex, which she refused to provide. On cross-examination, she agreed that, during the trip, she raised the puppy issue twice, and the defendant said to her, “I don't care if you flash me three times and blew me twice[,] you are not getting a puppy.” The defendant argues that this latter comment was inadmissible bad act evidence. As the defendant did not object or move to strike the testimony, we review for whether any error created a substantial risk of a miscarriage of justice.

Evidence of bad acts may not be introduced to prove the defendant's “bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose ․ such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). “In the context of sexual assault, evidence of uncharged conduct may be admissible to give the jury a view of the entire relationship between the defendant and the alleged victim, and the probative existence of the same passion or emotion at the time in issue” (quotations omitted). Commonwealth v. Morris, 82 Mass. App. Ct. 427, 441 (2012). See Commonwealth v. Calcagno, 31 Mass. App. Ct. 25, 27 (1991).

Here, the defendant's statement was directly relevant to proving his motive and pattern of operation in his relationship with Ann. The statement helped prove his sexual interest in her and that he thought in terms of making sexual conduct a condition of his agreeing to things she might want. On the particular occasion of the truck trip, the defendant grew tired of Ann asking for the puppy, as they both testified. He showed his exasperation by in effect telling her that she could not have the puppy even if she paid the sexual price he had named in the kitchen earlier.³ But this hardly makes his reference to that price irrelevant to showing his sexual desire for her and his usual means of gratifying it. Thus there was no error in admitting her testimony on cross-examination, and no risk that justice miscarried.⁴

2. Ineffective assistance of counsel. The defendant challenges the judge's denial, after an evidentiary hearing, of his motion for a new trial asserting ineffective assistance of trial counsel. We review the judge's decision for “a significant error of law or other abuse of discretion,” and we “extend[ ] special deference to the action of a motion judge who was also the trial judge,” as was the case here. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). To prevail on a claim of ineffective assistance of counsel, a defendant must establish that counsel's performance fell “measurably below that which might be expected from an ordinary fallible lawyer” and “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was manifestly unreasonable when made” (quotation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). “[T]he burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 755 (2008). We consider the various ineffective assistance claims seriatim.

a. First complaint witness: Freemantle. The defendant asserts that counsel was ineffective in failing to argue that a neighbor, Shelinda Freemantle, was the proper first complaint witness. But, at the time of trial, she did not appear to be a candidate for that role. At that time, counsel knew only that Ann had told Freemantle that the defendant “was not acting appropriately,” and that a day later Ann told Freemantle that she had lied about the defendant because she was angry at him for taking away her phone. Freemantle provided no details. Neither counsel nor his investigator understood this comment at the time to refer to alleged sexual conduct. When a victim tells another person of “unhappiness, upset or other such feelings, but does not actually state that she has been sexually assaulted,” that person has not heard a “complaint” and thus is not an appropriate first complaint witness. Commonwealth v. Murungu, 450 Mass. 441, 446 (2008).

Moreover, counsel was aware that the Commonwealth had a record of a text message exchange in which the defendant, addressing Freemantle with the phrase, “Hey sexy,” asked whether she could supply him with Vicodin, indicating that Freemantle had previously supplied or was willing to supply the defendant with opioids. Counsel was concerned that if he called Freemantle as a witness, these text messages, showing “a much closer relationship ․ than simply an across the street neighbor,” could be used to show Freemantle's bias toward the defendant.⁵ Because counsel had little reason to believe that Freemantle was a first complaint witness at all, and given counsel's concern that the risks of her being impeached outweighed the probative value of whatever testimony she might provide, the judge here concluded that counsel's decision not to propose Freemantle as a first complaint witness was not manifestly unreasonable. We see no error or abuse of discretion in the judge's conclusion.

Moreover, even if counsel's decision fell below Saferian's performance standard, the defendant has not met his burden of showing prejudice, i.e., that the failure to call Freemantle deprived him of a substantial ground of defense. At the evidentiary hearing on the new trial motion, Freemantle testified that Ann had originally complained to her about the defendant molesting her, and that Freemantle had advised Ann to inform Ann's mother (the defendant's wife). Freemantle testified that Ann later returned and reported that the defendant was “crying, and saying that he was going to kill himself, and he wasn't going to jail, and she [had] lied about everything, and that she [didn't] want [her younger stepsister, the defendant's daughter] to be without a father.” As the judge observed, this cast “considerable doubt upon the truth of [Ann's] recantation, which appeared to have been the result of pressure, manipulation[,] and a self-serving guilt trip by the defendant.”⁶

The defendant counters that the judge overstated the harm that testimony about his suicide threat might do to his case. The defendant suggests that if it were really so damaging, the Commonwealth would have presented such testimony in its case in chief, yet it did not do so. But nothing in the record suggests that the Commonwealth even knew, at the time of trial, about Ann's conversations with Freemantle.⁷

As the judge observed in denying the new trial motion, there was another reason that, had the jury heard Freemantle's testimony about the recantation induced by the suicide threat, the defense would have been harmed. The jury could well have viewed Freemantle's depiction of a manipulative defendant as consistent with the defendant's later text messages to Ann. In those messages, sent after Ann had made a disclosure to her mother about the truck trip, the defendant told Ann, “Thanks a lot ․ for accusing me. You know I can go to jail for even just saying those things to you. Really you're going to do this to your family? Thanks a lot. I spend my life protecting you, and now I'm going to lose everything.” The two separate examples of the defendant's approach to controlling Ann would have been mutually corroborating. For all of these reasons, we agree with the judge that counsel's decision not to call Freemantle as a witness did not deprive the defendant of a substantial ground of defense.⁸

b. First complaint witness: O'Brien. The defendant next argues that, Freemantle aside, counsel was ineffective in not objecting to Ann's friend David O'Brien serving as the first complaint witness. We are not persuaded. Assuming, without in any way deciding, that counsel performed deficiently by failing to object on best evidence grounds to the admission of Ann's complaint (made in a text message exchange with O'Brien),⁹ the defendant has not shown any resulting prejudice.¹⁰

Both Ann and O'Brien testified to a bare-bones exchange in which Ann reported that the defendant had sexually abused her but refused to provide any details. Had O'Brien not served as the first complaint witness, the defendant agrees that the next witness to whom Ann had complained and who would be eligible to serve as the first complaint witness would have been the defendant's adult daughter. The Commonwealth had informed the judge on the third day of trial that it preferred the daughter over O'Brien, because the daughter had given a four-page statement that included additional details reported by Ann about the defendant's sexual abuse, whereas O'Brien's account lacked these details. Trial counsel had a copy of the statement and concluded (as he later testified at the motion hearing) that O'Brien “from the defense point of view, strategically ․ would be better” than the Commonwealth's proposed witness. The judge, at counsel's urging, and properly concerned about the absence of cited authority for bypassing O'Brien, determined that O'Brien should serve. See Murungu, 450 Mass. at 446 (Commonwealth may not “pick and choose among various complaint witnesses to locate ․ the one to whom the complainant related the most details”).

In these circumstances, the defendant has not shown that counsel's causing the daughter to testify instead of O'Brien would have furnished a substantial ground of defense.¹¹ Accordingly, this aspect of the defendant's ineffective assistance claim fails.¹²

c. Failure to present recantation testimony. The defendant next argues that counsel was ineffective in failing to present two witnesses' testimony that Ann had recanted her allegations of sexual abuse. The first of these proposed witnesses is Freemantle. But we have already concluded supra that, in light of her testimony at the motion hearing about the circumstances of Ann's recantation, including the defendant's suicide threat, the failure to call Freemantle as a witness did not deprive the defendant of a substantial ground of defense.

The defendant's other proposed recantation witness was one of the defendant's sisters, Irene Samson. Another sister, Eva Jones, had suggested that trial counsel's investigator speak with Samson, stating that Samson had heard Ann say it was too late to tell the truth now because Ann's friends would know she was lying. But the investigator then spoke to Samson and reported back something quite different to counsel: according to Samson, Ann had said she knew that if she were not telling the truth, it was she who would get in trouble. The investigator's account was supported by his notes of his conversation with Samson. The defendant nevertheless argues that counsel was negligent in failing to personally follow up with Samson to determine whether Ann had actually recanted.

The judge rejected this claim of deficient performance. Counsel testified at the motion hearing that when he asked his investigator whether Ann had recanted to Samson, the investigator said, “Not really, no.” Neither counsel nor the investigator viewed Samson as having reported a recantation, and counsel saw no need for further clarification. We see no error or abuse of discretion in the judge's conclusion that counsel's performance was not deficient.¹³

There was additional testimony by counsel that, if credited, would support this conclusion.¹⁴ Counsel testified that the defendant had given no reason to believe Samson knew of any recantation; rather, the defendant had told the defense investigator that Samson “was a character witness” who would testify that the defendant “was a good parent.” “Generally, defense counsel are entitled to rely on information provided by their clients without further verification.”¹⁵ Commonwealth v. Alvarez, 433 Mass. 93, 102 (2000). Counsel did not recall the defendant being particularly concerned about Samson; counsel remembered the defendant “being most concerned about Eva Jones and definitely questioning why we were not calling [her] as a witness.” Counsel believed that the defendant “knew that we weren't calling [Samson]. And I do believe that I explained to him that she didn't have anything to offer.”

d. Cross-examination of Ann. The defendant argues that counsel was ineffective in failing to cross-examine Ann on three specific points in order to impeach her credibility. The judge rejected these claims, and we see no reason to disturb his conclusion. We address the three points in order.

i. When Ann's boyfriend learned of abuse. Ann testified at trial that in October 2013 she had informed O'Brien of the sexual abuse and, at school the next day, had asked O'Brien to inform her then-boyfriend Austin Barrett. The defendant asserts that counsel should have impeached Ann using her statement to a sexual assault intervention network (SAIN) interviewer in November 2013 that she had told Barrett about the abuse approximately three months earlier, i.e., in August 2013. We agree with the judge, albeit on different grounds,¹⁶ that counsel's failure to impeach Ann with the SAIN interview did not constitute ineffective assistance.

First, the defendant exaggerates the extent of the discrepancy. He claims that Ann testified that she “first complained to O'Brien” and claims in contrast that Ann told the SAIN interviewer “the first person she complained to” was Barrett. What Ann actually said at trial was that O'Brien was “one of the first people” she complained to and, in the brief excerpt from the SAIN interview that the defendant submitted with his new trial motion, Ann said nothing whatsoever about whether Barrett was the first, or one of the first, people she told.

Second, the brevity of the interview excerpt on this point makes it impossible to determine whether Ann could have been impeached effectively. We have only the interviewer's question to Ann asking if she had informed Barrett three months earlier -- part of a series of questions apparently intended to summarize what Ann had said earlier in the interview -- followed by Ann's reply, “Mmm-hmm.” The defendant did not submit the portion of the interview containing Ann's original statement about what she said to Barrett, which would be critical to consider before determining whether an attempt to impeach Ann would have succeeded or, instead, backfired.

Finally, although Barrett did not testify at trial, his November 2013 statement to police indicated that he had learned about the abuse from O'Brien at school approximately one month earlier, after which he, using O'Brien's phone, had a text message exchange with Ann in which he asked about the abuse and Ann provided some details. If such text messages existed, showing that Barrett did not learn of the abuse in August, they likely would have done much to blunt the impact of any effort to impeach Ann with her SAIN interview statements. But postconviction counsel's affidavit describing his review of the extraction reports from Ann's and O'Brien's cell phones, see supra at note 8, does not make clear whether he searched for or found any text messages between Ann and Barrett that would confirm Barrett's statement. For all of the above reasons, the defendant has not met his burden of showing ineffective assistance on this issue.

ii. Whether abuse occurred on couch. Ann testified at trial that the incidents involving oral sex usually occurred in the living room, that she was always on her knees, and the defendant was standing, or “sometimes he would sit ․ on the couch.” The defendant asserts that counsel should have impeached Ann using her earlier statement to police that the defendant was standing, she was kneeling, and “it never happened on the couch.” The defendant suggests that “the jury may well have doubted that someone who had undergone repeated, traumatizing sexual assaults at her house would not remember something as fundamental as where it happened.” The defendant again exaggerates the extent of the discrepancy, which concerned not where in the house the abuse occurred, but whether the defendant was always standing or sometimes sitting on the couch when it occurred. The judge viewed the inconsistency as a “minor matter[ ],” noting that Ann's accounts were “given [two] years apart by a teenager recounting abuse which occurred over the course of two years.” We agree, and we are unpersuaded that this line of impeachment would have furnished a substantial ground of defense or would have been a real factor in the jury's deliberations.

iii. Ann's text exchanges with Barrett. Finally, the defendant suggests that counsel should have impeached Ann by using her text message exchanges with Barrett to bolster the theory of the defense: that Ann was so infatuated with Barrett, and so angry at the defendant for forbidding her to date him, that she was willing to falsely accuse the defendant in order to remove him as an obstacle between her and Barrett. The defendant quotes an exchange in which Barrett stated that if he were Ann, he would be “calling the cops [to have the defendant's] ass arrested for rape and all other sorts of shit.” The defendant appears to suggest that this message from Barrett caused Ann to fabricate her allegations and go to the police with them a few hours later. The defendant ignores, however, a message Barrett sent Ann five minutes earlier, clearly indicating his awareness that the defendant “likes to sexually abuse his daughter” and that Ann's mother (the defendant's wife) knew of the abuse. The judge concluded that the text messages as a whole did “not support the defendant's interpretation that [Ann's] allegations were the product of [her] desperate effort to maintain her relationship with Barrett.”

We see no reason to disturb that conclusion, and thus no reason to view counsel as ineffective on this issue. We have also considered the cumulative effect of the claimed deficiencies in counsel's cross-examination of Ann, and we conclude that the defendant is not entitled to relief.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   These were three counts of indecent assault and battery on a child under fourteen years, G. L. c. 265, § 13B; and two counts of indecent assault and battery on a child fourteen or older. G. L. c. 265, § 13H.

3.   Ann's testimony on cross-examination differed from her direct testimony about what the defendant said in the truck, but her testimony about the kitchen conversation was unchallenged.

4.   The defendant also complains of the absence of a limiting instruction, but none was requested, and the judge was not required to give one sua sponte. See Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). We also reject the defendant's unpreserved claim that the prosecutor's closing argument improperly urged the jury to use the comment at issue as propensity evidence. The prosecutor placed the comment in the context of the kitchen conversation and permissibly used it to illustrate the nature of the defendant's relationship with Ann.

5.   We need not reach the defendant's argument that Freemantle's bias might not have been sufficient to disqualify her as the first complaint witness, see Murungu, 450 Mass. at 446-447, because it was not disqualification, but instead impeachment based on bias, that was counsel's expressed concern. And the defendant has not shown that counsel's concern about impeachment was misplaced; the defendant's reliance in this regard on Commonwealth v. Baker, 440 Mass. 519, 530 (2003), is unavailing, as that case did not involve use of drug transaction evidence to show bias.

6.   Although Freemantle did not testify at the defendant's trial, she did testify at the later trial of the defendant's wife for reckless endangerment of a child. In that testimony, Freemantle said that Ann had recanted her accusation of sexual abuse and explained that she had been angry at the defendant for taking away her phone. The defendant now argues that, had Freemantle been called at his trial, “there is no reason to doubt she would have testified as she did five months later at [his wife's] trial.” The defendant therefore asks us to disregard Freemantle's more damaging testimony at the motion hearing. But the defendant ignores Freemantle's own explanation for her previous, less detailed account of the recantation: the defendant's wife's counsel had told her “just to keep the answers basically simple and to just say that [Ann] lied.” The wife's counsel had given Freemantle the same instruction with regard to a written statement she prepared at that time, which also omitted any discussion of the defendant's suicide threat. In evaluating whether the defendant's trial counsel's decision not to call Freemantle as a witness deprived him of a substantial ground of defense, we see no reason to assume that Freemantle's testimony would have differed from what she said at the motion hearing, where she readily volunteered, to postconviction counsel's evident surprise, the information regarding the defendant's suicide threat.

7.   The Commonwealth listed four potential first complaint witnesses for the judge and then explained or argued why three of them could or should not serve. Freemantle was not on the list. We are unwilling to assume that the Commonwealth knew of Ann's complaint to Freemantle and yet withheld this information from the defendant and the judge.

8.   In so concluding, we do not assume, as the judge may have, that had Freemantle given the same limited account of her discussion with Ann as she gave at the wife's trial, her testimony would have been implausible. See Commonwealth v. Perez, 484 Mass. 69, 76, 79 (2020); Commonwealth v. Roberio, 428 Mass. 278, 281 (1998). Rather, we assume that Freemantle would have testified as she did at the motion hearing and that the jury could have fully credited that testimony. Further, we do not consider Freemantle's testimony at the motion hearing as bearing on the wisdom of counsel's decision not to call her as a witness at trial -- because, at the time of trial, counsel was not aware of what that testimony would be. Put differently, we consider the testimony as bearing only on Saferian's prejudice prong, not on its performance prong.

9.   The defendant argues that trial counsel negligently failed to question the Commonwealth's failure to produce copies of the text messages themselves. Accompanying the defendant's new trial motion was an affidavit from postconviction counsel stating that he had reviewed the discovery provided by the Commonwealth, including extraction reports showing the contents of Ann's and others' cell phones, and had found no such messages. We return to this point infra.

10.   The defendant also asserts that the testimony regarding Ann's complaint to O'Brien was inadmissible hearsay and violated his Federal and State constitutional rights to confront the witnesses against him. We are hard pressed to understand this claim. Both Ann and O'Brien testified and were cross-examined, and the judge properly instructed the jury that the testimony about the out-of-court complaint could be considered not for the truth of the complaint but only to assist in evaluating Ann's credibility. See Commonwealth v. King, 445 Mass. 217, 247-248 (2005), cert. denied, 546 U.S. 1216 (2006).

11.   The defendant argues that the timing of Ann's complaint to his adult daughter could have raised doubts about Ann's motive for making the complaint. Without the daughter's statement before us (the defendant having omitted it from the record appendix), we cannot say that such possible doubts would have made the daughter a substantially more favorable first complaint witness from the defense perspective.

12.   The defendant attempts to salvage this part of his claim by arguing that, regardless of who would have been the first complaint witness had O'Brien been disqualified, “the revelation that the alleged texts [between Ann and O'Brien] did not exist would have gravely undermined [Ann's] credibility.” First, this argument was not made in the new trial motion; it is raised for the first time on appeal. Second, the defendant has not proven that the texts did not exist. See supra at note 8. Third, had the defendant shown prior to trial that they did not exist, then, by the defendant's own theory, O'Brien could not have served as the first complaint witness, nor would Ann have testified about her claimed text exchange with O'Brien. It is thus difficult to see how Ann could have been impeached by proof that the texts did not exist.

13.   We therefore need not address the judge's further conclusion that the defendant had failed to show prejudice. The judge acknowledged the defendant's submission of an affidavit from Samson stating that, after the defendant was charged, Ann told Samson that police had warned her she could get into trouble for lying, and that it was by then too late for her to tell the truth. Samson's affidavit further stated that she had been made aware of how the defense investigator had interpreted her remarks, and that his understanding was “the complete opposite” of what she had meant. Samson died before the motion hearing.

14.   In general the judge appeared to credit counsel's testimony, but the judge did not specifically discuss or make a credibility finding regarding these additional points. Cf. Commonwealth v. Jones-Pannell, 472 Mass. 429, 436-438 (2015). The points are not essential to our conclusion.

15.   The defendant's affidavit stated that, before trial, he had informed counsel directly that Samson had important information about a recantation by Ann. Counsel, in contrast, testified that most of the conversations about potential witnesses took place between the defendant and counsel's investigator, and that counsel recalled the defendant speaking to him directly not about Samson, but about Jones. The judge was not required to credit the defendant's affidavit. Commonwealth v. Rzepphiewski, 431 Mass. 48, 55-56 (2000). Even if believed, the affidavit showed only, as the judge noted, that the defendant had put counsel on notice of a possible recantation. The defendant had not been present at the conversation between Ann and Samson and so had no personal knowledge of what was said.

16.   The judge reasoned that impeaching Ann with the SAIN interview would have opened the door to the jury learning that Ann had recanted an earlier allegation of sexual abuse after the defendant had threatened suicide.